The Trump administration on Monday asked a Texas judge to hear a case that could determine the fate of the Affordable Care Act’s nondiscrimination rule protecting transgender people as well as access to abortion and birth control.
In a new brief filed with the U.S. District Court for the Northern District of Texas, the Justice Department asked conservative judge Reed O’Connor to lift a stay that has prevented Franciscan Alliance v. Azar, formerly known as Franciscan Alliance v. Burwell, from moving forward for 17 months. The Trump administration also proposed a schedule that would allow the case to continue until May 24, at which point O’Connor would make a final ruling on whether to take trans protections out of the ACA.
Judge O’Connor is the same judge who ruled Friday that Obamacare’s individual mandate is unconstitutional and that the ACA “fails” without it.
While the Trump administration first announced in April that it planned to overturn ‘section 1557,’ the part of the ACA that bans sex discrimination on the basis of gender identity or pregnancy status, it hasn’t moved to do so outside of the court.
Section 1557’s specific nondiscrimination guidelines were added to the ACA in 2016, after a six-year period of study that included 25,000 public comments. While the ACA itself bans discrimination in healthcare on the basis of race, color, national origin, sex, age, or disability, section 1557 clarified the meaning of ‘sex discrimination’ to include gender identity and pregnancy status, spurring pushback from conservative groups that don’t want health insurance to cover transgender health care or birth control and abortion.
O’Connor, described by the New York Times as a conservative favorite in “weaponized courts,” has been employed by anti-LGBTQ activists to strike down transgender rights and other progressive causes.
In December 2016, O’Connor issued an injunction blocking the portions of the ACA that protected against discrimination on the basis of gender identity or pregnancy. He then issued a stay in the case, leaving the plaintiffs — and insurers — with nearly two years of questions about how to interpret the ACA’s sex discrimination rule.
“The regulations really play a critical role in making sure that both patients and the healthcare industry understand the law and help make real its guarantees that people will be able to access healthcare,” Harper Jean Tobin, director of Policy at the National Center for Transgender Equality, told INTO on Monday. “It’s very much part of what the Trump admin is trying to do overall, which is trying to overturn the Affordable Care Act.”
LGBTQ advocates, however, have stressed that the ACA continues to protect transgender people, who can still file private lawsuits outside of the Department of Health and Human Services (HHS), which enforced 1557.
“This case is an outlier,” said Omar Gonzalez-Pagan, senior attorney and healthcare strategist at Lambda Legal. “And what they’re suggesting flies in the face of a legal consensus that has been around this question.”
Jocelyn Samuels helmed the HHS Office of Civil Rights and oversaw the implementation of the 1557 protections under President Obama in 2016.
“There have been those cases filed in other courts, and the vast majority of judges have found that the law does cover gender identity discrimination,” Samuels, currently the director of the UCLA’s LGBTQ think tank Williams Institute, told INTO.
But even though several court rulings have found that discrimination on the basis of gender identity is the same thing as sex discrimination, the concept is still being battled out in the courts. Without the HHS rule that makes it clear gender identity is protected under sex, there is no other federal law that clearly and overtly bars anti-trans discrimination.
“What the Trump administration is trying to do here is to send the message that it’s okay to send transgender people away, to refuse transgender people healthcare,” Tobin says.
The battle over section 1557 has already resulted in a trickle-down effect nationwide; the state of Wisconsin cited O’Connor’s injunction in a case brought by two trans state employees seeking insurance coverage (the state lost), and a July report by Human Rights Watch found that anti-LGBTQ discrimination in health care rose sharply after the Trump administration’s policy changes.
One in three trans people say they have experienced mistreatment from a medical provider and the same number report discrimination by an insurer, said Tobin.
There’s currently no party in the case advocating for trans people, Tobin explained, which right now is between the plaintiffs and the Trump administration — and they are on the same side. But in the Justice Department’s Monday filing, the Trump administration suggests that the ACLU of Texas and other intervening parties be allowed to join the case. If O’Connor allows it, those groups would argue on behalf of trans access to healthcare and on behalf of abortion and birth control rights.
“This is a case about taking rights away from transgender people, and there are no transgender people actually in the case arguing for why that shouldn’t happen. No one is speaking up on behalf of transgender people in this case right now,” Tobin told INTO.
The ACLU of Texas did not immediately respond to a request for comment.
The civil rights groups asking to join the case would only be intervening in O’Connor’s original December 2016 injunction. If the Trump administration creates a new HHS rule, that would likely result in a new court case altogether.
At the start of the year, the White House announced a new Conscience and Religious Freedom Division under HHS, tasked with protecting health care workers who refuse care on the basis of “moral objections.” LGBTQ advocates say that move weaponizes the office against LGBTQ people instead of protecting them against discrimination.
HHS did not respond to a request to comment by press time.
“The reason they can’t just make a new rule is the majority of courts have decided that sex discrimination covers gender identity discrimination,” Gonzalez-Pagan told INTO. “And several courts have decided that section 1557 does protect trans people.”