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Today, the Human Rights Campaign alongside co-counsel BakerHostetler, filed a federal civil rights lawsuit against the Trump-Pence administration on behalf of two transgender women of color who have experienced a lifetime of severe and pervasive discrimination from health care providers. The lawsuit challenges a recently published regulation by the United States Department of Health and Human Services which illegally strips away critical anti-discrimination protections in the Affordable Care Act. The new Department rule will eliminate explicit protections from discrimination based on sex stereotyping and gender identity, thereby sanctioning discrimination against LGBTQ people, particularly transgender people, in health care programs and activities.

The lawsuit, the first that HRC is filing after announcing its new impact litigation initiative in October 2019, is brought against the Department of Health and Human Services and Secretary Alex Azar II, in his official capacity.

HRC is filing on behalf of two plaintiffs, both transgender women of color: Tanya Asapansa-Johnson Walker, an Army veteran, two-time lung cancer survivor and community leader who co-founded a statewide advocacy group for transgender and gender non-conforming New Yorkers, and Cecilia Gentili, an entrepreneur, activist, writer and storyteller with over a decade of experience as a patient and health care policy advocate.

“LGBTQ people, and particularly transgender people, have been under constant attack by this federal administration and we are not going to allow them to dismiss and disregard us,” said HRC President Alphonso David. “Our plaintiffs, Tanya Walker and Cecilia Gentili — like many others in this country — should not be treated as second class citizens by a federal administration hell bent on removing legal protections afforded to transgender people. It is time to end the constant fear and anxiety felt by many in the LGBTQ community that a person’s gender identity might determine the kind of medical care they receive.”

The plaintiffs’ collective experiences offer a small glimpse into the reality that many LGBTQ people, especially transgender women of color, face when seeking health care. For years, Tanya Asapansa-Johnson Walker and Cecilia Gentili have been routinely met with ridicule, harassment, verbal acts of discrimination such as misgendering and deadnaming, and rough physical handling, when making appointments for routine care, during recovery from surgery, or while accompanying other transgender patients to necessary medical treatments just because they are transgender. Both live with serious and chronic lung conditions, and they delay or avoid treatment for these and other conditions because of the fear of facing discrimination. Both live with the trauma and grief of having lost friends and chosen family who succumbed to conditions that were treatable but who nonetheless chose to forego medical care due to fear of harassment and discrimination.

“Every visit to the doctor, whether for my lung cancer or other issues, I have to defend my gender identity to the very people responsible for my care,” said plaintiff Tanya Asapansa-Johnson Walker.  “The administration’s decision to roll back regulations that protect LGBTQ people from discrimination in medical settings is a slap in the face to the transgender community that has fought so hard for these necessary protections. They signal to providers that treating a transgender patient with  respect and dignity is not required. We are here to tell the Trump-Pence administration that we matter and will no longer accept being mistreated by health care professionals who should be obligated to treat everyone equally.”

“My work takes me all over the country and I was in Florida when COVID-19 became generally known as a pandemic.  As a Latinx, transgender woman with COPD and emphysema, I was terrified that, should I become sick in Florida, a state without non-discrimination protections for LGBTQ people in health care, I would receive inadequate care,” said plaintiff Cecilia Gentili. “Because of this regulation, health care providers are empowered to either refuse to treat me or provide me with sub-par care on account of my being transgender, which could ultimately lead to severe health consequences or even my death. LGBTQ people are entitled to the same rights as anyone else and I should not fear for my life every time I enter a health care facility.”

Section 1557 of the Affordable Care Act prohibits discrimination based on race, color, national origin, sex, age or disability in certain health programs or activities. This landmark provision is the first of its kind to include protections from discrimination based on sex in the context of health care.  After the landmark Supreme Court decision in Bostock, which held that that discrimination “on the basis of sex” includes, without reservation, discrimination based on an individual’s gender identity or sexual orientation, the Human Rights Campaign demanded that the adminstration rescind the proposed regulation. The administration failed to respond and proceeded with publication of the final rule which necessitated the filing of this lawsuit.

The lawsuit argues that the Department of Health and Human Services has violated federal law by completely removing language from the regulations interpreting Section 1557 that clarifies that prohibited sex discrimination includes discrimination on the basis of gender identity and sex stereotyping, including for LGB people, effectively encouraging  discrimination against LGBTQ people and undermineing the very guiding purpose of the ACA to expand access to affordable and quality health care. The definition of “sex” has been consistently interpreted by numerous federal courts and agencies — including, until this action by the administration, the Department of Health and Human Services (HHS) — to include discrimination based on gender identity and sex stereotyping.  The Office of Civil Rights at HHS had been successfully accepting complaints and enforcing the ACA to protect LGBTQ people since 2012 and HHS published a final rule implementing the ACA’s civil rights protections to include discrimination based on gender and sex stereotyping in 2016.

The lawsuit was filed in the United States District Court for the Eastern District of New York. It seeks an order declaring the administration’s actions unlawful and preventing the Department of Health and Human Services from taking action to implement the regulation.

Read the complaint here and the Plaintiffs’ declarations here and here.

Watch a video on the lawsuit.

BACKGROUND

The rule change comes in the midst of the twin epidemics of COVID-19 and racial violence. Over the past few months, we have witnessed a rash of horrific violence against Black and transgender people: at least 16 transgender or gender non-conforming people have been killed this year in the United States. Seventy-three percent of all transgender and gender non-conforming people killed violently are Black. LGBTQ people are also particularly vulnerable to both the health and economic impacts of COVID-19. HRC recently published a research brief outlining these risks, finding that many in the LGBTQ community are uniquely vulnerable, as they are more likely to work in highly affected industries, often with more exposure and/or higher economic sensitivity to the COVID-19 crisis, are less likely to have health coverage and are more likely to smoke and have chronic illnesses like asthma. One in five LGBTQ adults have not seen a doctor when needed because they could not afford it. Black LGBTQ adults (23%), Latinx LGBTQ adults (24%) and all transgender women (29%) are most likely to avoid going to the doctor because of costs. Read the full brief here.

Fear of discrimination causes many LGBTQ people to avoid seeking health care, and when they do enter care, studies indicate that they are not consistently treated with the respect that all patients deserve. Studies by Lambda Legal show that 56% of LGB people and 70% of transgender and gender non-conforming people reported experiencing discrimination by health care providers — including refusal of care, harsh language and physical roughness because of their sexual orientation or gender identity. According to a report by the National Center for Transgender Equality, 23% of transgender respondents did not see a doctor when they needed to because of fear of being mistreated as a transgender person and a startling 55% of transgender respondents who sought coverage for transition-related surgery were denied.

According to an HRC Foundation analysis of the 2018 Behavioral Risk Factor Surveillance System (BRFSS), the nation's premier system of health-related telephone surveys, 17% of LGBTQ adults do not have any kind of health insurance coverage, compared to 12% of non-LGBTQ adults. Furthermore, 23% of LGBTQ adults of color, 22% of transgender adults and 32% of transgender adults of color have no form of health coverage. This can lead to avoidance of medical care even when medically necessary and to severe economic hardship when medical care is ultimately accessed.

HRC has long fought against the Trump-Pence administration’s attempts to revise this rule in a way that would undermine protections for LGBTQ people since it was announced in 2019. HRC, along with its coalition partners, submitted more than 120,000 public comments expressing concerns about the proposed rule that year, with 26,000 coming directly from HRC members.