On August 17, 2020, Judge Frederic Block, a senior judge in the eastern district of New York, issued a preliminary injunction (PDF) against certain provisions of a recent final rule dramatically revising the interpretation of the Department of Health and Human Services’ Office for Civil Rights (OCR) of Section 1557 of the Affordable Care Act. Those provisions would have gone into effect on August 18 had they not been set aside by the court.

The Trump administration’s new rule on Section 1557 made many changes, but Judge Block’s ruling is limited to would-be changes to the definition of discrimination “on the basis of sex,” “gender identity,” and “sex stereotyping.” He cites heavily to the Supreme Court’s recent decision in Bostock v. Clayton County, Georgia (PDF) where Justice Gorsuch, writing on behalf of a six-justice majority, concluded that Title VII of the Civil Rights Act prohibits employment discrimination against LGBT people. As expected, the court criticized OCR for issuing the rule ahead of the Bostock decision and relying on the (ultimately wrong) position advanced by the Department of Justice — and then publishing the rule even after the Court’s decision without doing the “sensible thing” of pausing and reflecting on the ruling.

This lawsuit (PDF) was brought by the Human Rights Campaign on behalf of two transgender women of color, Tanya Asapansa-Johnson Walker and Cecilia Gentili, who have faced a lifetime of discrimination in accessing health care and health insurance. As discussed below, at least four additional challenges to the new rule are pending before courts across the country, and more decisions are expected soon. This post briefly discusses the ongoing litigation over Section 1557, the latest ruling, what it means, and what comes next.

Continue reading the full post at the Health Affairs Blog.

Katie Keith

Katie Keith, JD, MPH, provides rapid-response analysis on the Affordable Care Act (ACA) for the Health Affairs Blog. She is a principal at Keith Policy Solutions, where she advises nonprofits and foundations on health care issues and conducts original legal, policy, and qualitative analysis to support policy goals. Her work focuses on implementation of the ACA and its impact on underserved populations, such as the LGBT community. Read More

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