ACLU to Appeal Court's Block of Transgender Nondiscrimination Rule

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By Matthew Loughran

The fight over transgender health-care discrimination will move to a federal appeals court before the next presidential administration takes office.

The American Civil Liberties Union informed a federal judge Jan. 9 of its intent to appeal an order barring enforcement of a Department of Health and Human Services rule that protects against discrimination on the basis of a patient's gender identity or desire to exercise reproductive rights ( Franciscan Alliance, Inc. v. Burwell, N.D. Tex., No. 7:16-cv-108, motion filed 1/9/17 ).

The group's motion escalates a fight between religiously affiliated health-care providers and representatives of transgender individuals who claim that the providers are discriminating against them by denying them care for their gender dysphoria.

Judge Reed O' Connor of the U.S. District Court for the Northern District of Texas entered a nationwide injunction blocking enforcement of sections of the rule ( 26 HLR 24, 1/5/17 ). The rule implements Section 1557, the nondiscrimination provisions of the Affordable Care Act that prohibit discrimination on the basis of sex.

“We felt this was necessary because the court entered a nationwide injunction restraining the HHS from enforcing Section 1557 without giving us a chance to advocate on behalf of our members who will be directly effected by the decision,” Brian Hauss, a staff attorney at the ACLU in New York, told Bloomberg BNA.

He added that the ACLU filed a friend-of-the-court brief in the case but was limited in that role and had been seeking to intervene as a full party since September to defend the rights of the groups’ members.

When the court entered its Dec. 31 injunction, Lori Windham, senior counsel for the Becket Fund for Religious Liberty, which represents the health-care providers in the case, said in a press release that the injunction “ensures that doctors’ best medical judgment will not be replaced with political agendas and bureaucratic interference.”

Representatives from the Becket Fund were unavailable for Bloomberg BNA's requests for further comment.

Appeal Coming by Inauguration Day

The ACLU moved to intervene in the case in September, seeking to step into the place of the Obama administration in an effort to defend its members from discrimination. Its motion seeks action from the court before Donald Trump is sworn in as President of the United States on Jan. 20.

The court blocked the rule Dec. 31 without ruling on the group's intervention motion. The ACLU said the court's order placed it in the position of having its members suffer from discriminatory practices nationwide without having the ability to argue their position before the court.

As a result, the group said, it plans to file an appeal with the U.S. Court of Appeals for the Fifth Circuit by Jan. 20. If the court grants the motion to intervene, the ACLU will immediately appeal the injunction blocking the rule. If the court denies the motion to intervene, the group said that it would appeal that denial.

However, the ACLU said in its brief, if the court refuses to rule on the motion at all, the group will go to the Fifth Circuit and seek an order forcing the lower court to rule on the motion.

The ACLU expressed concern in its brief that the HHS wouldn't attempt to appeal the court's order and that new leadership at the agency, because of the change in administration, could result in the court's injunction going untested by the appeals court.

A spokeswoman for the Department of Justice, who represents the HHS in the case, declined Bloomberg BNA's requests for comment citing a policy against commenting on pending litigation.

In an order issued on the same day the ACLU filed its motion, O'Connor ordered an accelerated briefing schedule for the motion. The court's order required both the health-care providers and the HHS to respond to the motion by Jan. 17 and allowed the ACLU to reply by Jan. 20.

Other Challenges to HHS Rule

The case is one of many involving gender identity discrimination brought recently under Section 1557 of the ACA.

Two challenges to the HHS rule are pending in the U.S. District Court for the District of North Dakota ( North Dakota v. Burwell, D.N.D., No. 3:16-cv-386, filed 11/7/16 ; Catholic Benefits Ass'n v. Burwell, D.N.D., No. 3:16-cv-432, filed 12/28/16 ; 26 HLR 38, 1/5/17 ).

Judge Ralph R. Erickson entered a sealed order in both cases Dec. 30 staying enforcement of the rule. The HHS asked the court for clarification of that order Jan. 6.

According to the HHS brief, the court's order is overbroad in that it enjoins the entire nondiscrimination rule, not just the provisions including gender identity and termination of pregnancy in the definition of sex discrimination.

Related Issue Pursued in New Jersey Case

At the same time as these challenges to the HHS rule are pending, transgender patients are also bringing claims directly under the text of the statute.

In the most recent case, a transgender man in New Jersey filed suit Jan. 5 against a Catholic hospital in Paterson, N.J. The man claimed that the hospital violated Section 1557 and state anti-discrimination laws when it refused to allow him to schedule a hysterectomy to treat his gender dysphoria ( Conforti v. St. Joseph’s Healthcare Sys. , D.N.J., No. 2:17-cv-50, filed 1/5/17 ).

The transgender man, Jionni Conforti, said the St. Joseph’s Regional Medical Center, discriminated against him by refusing to perform a hysterectomy that had been deemed medically necessary by his primary-care physician.

Conforti pointed to an e-mail he had received from the hospital’s director of mission services that asserted the hospital’s Catholic mission prevented it from scheduling a procedure intended to provide gender reassignment treatment.

“Our claim is rooted in the text of the statute and the interpretation of that text by the courts,” said Omar Gonzalez-Pagan a staff attorney for Lambda Legal in New York, who represents Conforti. “It is really about denying medically necessary treatment to a patient just on the basis of who he is,” he added.

Gonzalez-Pagan pointed out that St. Joseph's has provided “hundreds” of hysterectomies and other sterilization procedures to patients for reasons other than treatment of gender dysphoria. “They cannot say that providing the service is an infringement on their religious liberty because they are clearly providing the services generally and only denying service to Mr. Conforti on the basis of who he is,” he said.

“St. Joseph’s Regional Medical Center is a leading Catholic healthcare institution serving one of the most diverse and underserved populations in New Jersey,” a spokeswoman for St. Joseph’s said in response to Bloomberg BNA’s request for comment on the case.

“The Medical Center follows the Ethical and Religious Directives for Catholic Health Care Services in making decisions about care and treatment,” the statement said.

Groups Say Rule Reflect Statutory Language

Gonzalez-Pagan said Conforti's claim isn't adversely affected by the Texas court's injunction and the HHS rule reflects other courts' interpretation of the statutory language. “The rule is just a confirmation of what the statute already says regarding discrimination,” he said.

Gonzalez-Pagan pointed to a March 2015 decision by a federal judge ruling that Section 1557 prohibits discrimination in health-care on the basis of gender identity and sex stereotype ( Rumble v. Fairview Health Servs., 2015 BL 70114 (D. Minn. 2015); 24 HLR 361, 3/26/15).

“That decision predates the Texas court's injunction and even the promulgation of the HHS rule,” he said. “So while the Texas decision may make it more difficult for a person to get a discrimination claim investigated by HHS, it in no way effects the substantive rights for patients under the statute.”

ACLU's Hauss agreed that Section 1557 itself provides transgender individuals with protection against discrimination in health care and the litigation like the New Jersey case could provide another avenue for people to protect those rights in private actions, independent of what the HHS does.

ACA Repeal Concerns

The ACLU's concern that an incoming Trump administration could affect enforcement of the rule comes amid a backdrop of Congressional efforts to repeal portions of the ACA.

“We are certainly concerned that the incoming administration will attempt to regress from the protections offered under the law,” Hauss said. “We will be watching very carefully and intend to fight tooth and nail against any attempt to roll back nondiscrimination protections for members of the transgender community and women seeking reproductive health care,” he added.

However, a number of the transgender advocates that spoke to Bloomberg BNA doubted that efforts to repeal a substantive provision like Section 1557 would obtain a filibuster-proof majority in the Senate.

“We are seeing that the best-laid plans to repeal the ACA are falling apart,” Gonzalez-Pagan said. “We are not sure that the entirety of the law can be repealed and certainly the substantive provisions can't be reached through the back-channel budgetary methods that they are using right now,” he added.

To contact the reporter on this story: Matthew Loughran in Washington at mloughran@bna.com

To contact the editor responsible for this story: Peyton M. Sturges at PSturges@bna.com

For More Information

The ACLU's motion in the Texas case is at http://src.bna.com/liM.

The court's scheduling order in the Texas case is at http://src.bna.com/liN.

Conforti's complaint in the New Jersey case is at http://src.bna.com/leA.

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