Transgender Health Rule Lawsuits Piling Up Against Biden HHS

Transgender health-care protections from the Biden administration are facing a wave of courtroom attacks from conservative states and groups looking to unwind legal protections on gender-affirming care.

Eighteen states, a children’s health clinic, the Catholic Medical Association, and the conservative legal group that helped overturn Roe v. Wade are suing the administration to block a rule prohibiting health-care discrimination based on sexual orientation or identity.

Filed in Florida, Mississippi, and Texas federal courts, the four lawsuits come as 25 states have passed restrictions on gender-affirming care for minors, contributing to what policy watchers say is a culture of fear for people seeking treatment that could worsen if the rule is blocked.

The cases could fuel judges to look closer at the scope of US Supreme Court precedent in Bostock v. Clayton County, a 2020 decision protecting employees from discrimination over their gender identity or sexuality that the HHS pointed to in its rule.

The plaintiffs want the Supreme Court to “confront the scope of Bostock” and “think about whether Bostock applies to other civil rights statutes. And if so, how far does it go?” said Nicole Huberfeld, a health law professor at Boston University.

Discrimination Protection

In April, the HHS released its long-awaited rule, stating that Section 1557 of the Affordable Care Act prohibits health-care discrimination against people based on their sexual orientation or gender identity.

Rulemaking can “provide explicit protections” in more expansive ways than court precedent or law, said Lindsey Dawson, director of LGBTQ Health Policy at KFF. The Section1557 rule “spells out specific protections for transgender people and gender-affirming care as well. Including entities can’t refuse care gender-affirming care that would be approved to someone for another purpose.”

The rule is slated to go into effect in July. Florida, one of the parties suing the HHS, is trying to stop that from happening while its legal challenge plays out. In May, the state asked Judge William Jung of the US District Court for the Middle District of Florida for a nationwide stay on the rule. Plaintiffs in other lawsuits have raised similar requests.

The opponents of the rule accuse the Department of Health and Human Services of forcing physicians to perform gender-affirming care surgery, threatening “the livelihood of doctors who refuse to provide experimental, sterilizing, ‘gender-change’ interventions” with “huge financial penalties.”

“Congress never passed any requirement for any health-care provider to harm their patients in this way. And so HHS has no authority whatsoever to require this in their rule,” Julie Marie Blake, an attorney with Alliance Defending Freedom, said in an interview. ADF is involved with two lawsuits over the rule and also is battling the administration over abortion access at the Supreme Court.

‘Bigger-Picture’ Arguments

The challenges all raise similar contentions. They accuse the HHS of violating the Administrative Procedure Act by defining discrimination in a way outside the scope of current law. They also say the HHS is violating the US Constitution, including free speech protections and the spending clause, given the agency’s ability to withhold funds for not complying with the rule.

But there’s “a bigger-picture set of arguments,” Huberfeld said. Among those is the plaintiffs “taking opportunistic bites” at the major questions doctrine, a legal principle stating that agencies trying to decide issues of national economic or political importance need a clear green light from Congress first.

Another big picture effort: trying to rein in Congress’ spending power.

“The challengers’ theory is that state sovereign authority is being somehow burdened by the way that Congress is using its spending power,” Huberfeld said. That’s because federal programs like Medicaid, the Children’s Health Insurance Program, and health insurance exchanges rely on states’ participation, so states must comply with the Section 1557 rule if they want the federal funding for those programs, Huberfeld added.

The Biden rule “is where the rubber is going to hit the road and, and part of that is because the landscape has changed since the prior rules” issued by the Obama administration in 2016, said Laura Durso, founder of consultancy Harmonic Strategies. Durso previously was chief of staff for the OCR and worked on the Biden rule during her time with the agency. She also worked on the previous rules as an outside advocate.

States suing the HHS over the rule have transgender care bans, Durso said. That’s “the new part of the landscape that we have not seen before.”

The HHS rule is “very clear about equal treatment under the law and how we expect it to be enforced,” HHS Office for Civil Rights Director Melanie Fontes Rainer said in a May interview held before the lawsuits were filed. “I’d be lying to you if I didn’t say that there weren’t laws all across the country now that are in conflict.”

Still, Durso said the OCR “has the benefit of learning from the landscape of what happened since this 2016 rule was issued.” The current rule “has really tried to be responsive to case law.”

‘The Bostock Court’

That case law includes the Supreme Court’s 2020 Bostock decision, which held that LGBTQ people are protected from discrimination under Title VII of the Civil Rights Act of 1964.

In 2021, after Bostock, the Biden administration announced that it would interpret “sex” under the ACA to include gender identity. The following year, the HHS proposed what would become the Biden administration’s version of the Section 1557 rule. The agency noted on its website that the proposal’s discrimination protections were “consistent” with the Bostock decision.

“It has been made quite clear in the case law in the almost 15 years since the Affordable Care Act was enacted, including in the Supreme Court’s Bostock decision, that discrimination on the basis of sex includes discrimination against transgender people,” Kellan Baker, executive director of the Whitman-Walker Institute, said in an interview about the rule prior to its challenge in court.

Bostock‘s protections are “established legal principles” at this point, he said, though noted “it’s important to have them in the rule, given what we’re seeing in the States,” and “all of these attacks on LGBT communities.”

The post-Trump administration federal judiciary may pose a threat to the rule.

In his single term as US president, Donald Trump appointed 226 judges, according to Pew Research Center. Florida’s lawsuit would go to the US Court of Appeals for the Eleventh Circuit should the outcome be appealed. Six of the 12 active judges on the court are Trump appointees.

The two cases in a Mississippi federal court would head to the US Court of Appeals for the Fifth Circuit on appeal. That court is widely considered the most conservative in the nation. It’s slated to release a decision in Neese v. Becerra, a case over a Biden administration notice warning doctors it would interpret Section 1557 as prohibiting transgender discrimination.

In one of the recently filed Section 1557 rule lawsuits, Judge Louis Guirola Jr. suggested that the HHS and states brief the court on how the Neese outcome will affect proceedings.

Should courts begin considering the scope of the Supreme Court’s Bostock decision, the HHS might have a tougher time enforcing its views on gender-affirming care protections altogether.

And since the 2020 ruling in Bostock, one Supreme Court seat has shifted more conservative, with the late Ruth Bader Ginsburg being replaced by Trump appointee Justice Amy Coney Barrett.

“If that central idea is shaken, you need to move to a different strategy of explicitly protecting sexual orientation and gender identity in the law,” Durso said. We no longer “have the Bostock court.”