LGBT Groups More Likely to Win Transgender Cases in Court After Bostock Ruling
In the midst of the deadliest pandemic in a century, Pride Month, and on the four-year anniversary of the Pulse Nightclub shooting which claimed 49 lives, the Trump Administration eliminated protections for transgender individuals by revising Section 1557 of the ACA.
But the Supreme Court’s ruling just three weeks ago in Bostock v. Clayton County makes it significantly harder to defend these types of regulations in Court.
Pro-LGBTQ groups, including the Human Rights Campaign (HRC), the largest such organization in the country, sued the Trump Administration just hours after the rule change was announced. This is HRC’s first lawsuit since launching a litigation initiative in October 2019.
Section 1557 is the nondiscrimination provision of the Patient Protection and Affordable Care Act. It “prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.” The provision extends nondiscrimination protections to individuals participating in any health program or activity which receives funding from HHS, any health program or activity that HHS itself administers, and Health Insurance Marketplaces and all plans offered by issuers that participate in those Marketplaces.
The Obama Administration interpreted the rule so that it would prevent transgender patients against discrimination by doctors, hospitals, and health insurance companies. In addition, numerous lower court judges, dating back to 1997, have ruled discrimination against transgender individuals is sex discrimination.
This lawsuit names the Department of Health and Human Services and Secretary Alex Azar II, in his official capacity, as the defendants. The two plaintiffs the Human Rights Campaign is representing are black transgender women — Tanya Asapansa-Johnson Walker and Cecilia Gentili.
HRC’s brief, filed on June 26 in the United States District Court for the Eastern District of New York, advances two main arguments. First, that this reinterpretation of Section 1557 violates the Administrative Procedure Act because it exceeds statutory authority and is arbitrary and capricious. Second, that the rule change violates Equal Protection found in the Fifth Amendment because the rule change is “rooted in animus, stigma, and inferiority” (67).
The Human Rights Campaign argues that a judge should review this regulation under the heightened standard known as strict scrutiny. Among the criteria to pass this heightened test, a law or regulation must further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest. First, HRC points to United States v. Virginia which held that a “heightened review standard” is “applicable to sex-based classifications” (66). HRC’s brief also states that the rule change “lacks adequate tailoring under any standard of review” (67). Using a heightened standard would make it harder for a judge to uphold the regulation.
This case is important because transgender people face unique obstacles. According to a 2015 survey by the National Center for Transgender Equality, fifty-five percent of those who sought coverage for transition-related surgery in the past year were denied, and one-quarter of respondents who sought coverage for hormones in the past year were denied.
Violence is also rampant against transgender people, especially black trans women. It’s estimated that eighteen transgender people have been killed in 2020, with the vast majority being trans women. According to the survey, distress is heightened among those who have suffered violence. Sixty percent of respondents who were physically attacked in the prior year said they were more likely to be currently experiencing serious psychological distress than those who were not. Like so many in the report who have suffered harassment and abuse, Ms. Walker, one of the plaintiffs, has also experienced physical and emotional abuse (9).
Earlier this year, Idaho’s governor signed into law two anti-trans bills: HB 509 bars transgender people from changing the gender marker on their birth certificates; HB 500 prevents transgender girls and women from competing in women’s sports. It would appear the GOP’s strategy of restricting gay rights is now beyond the pale, so they’ve decided to target transgender people.
A key obstacle for anyone defending the Section 1557 rule change in court: President Trump’s first Supreme Court appointee, Neil Gorsuch. In Bostock v. Clayton County, Justice Gorsuch wrote, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex” (9).
When Justice Gorsuch said treating gay and trans people differently is sex discrimination, then it should also apply in areas besides employment. Pro-LGBTQ rights attorneys believe the ruling is broad and “will impact housing, education, credit, health care and beyond that as well.” Even Justice Alito, who wrote an angry dissent in Bostock, agrees with that sentiment. The decision, he said, is “virtually certain to have far-reaching consequences. Over 100 federal statutes prohibit discrimination because of sex” (44).
The Human Rights Campaign and other groups suing the Trump Administration — or anti-trans laws originating in states — should have no problem given the precedent set in Bostock. It’s nearly impossible to envision a lower court judge not applying Gorsuch’s legal reasoning and precedent when hearing this case.
The Human Rights Campaign’s lawsuit is called Walker, et al. v. Azar. It does not appear the case is on the District Court’s docket yet.