Groups seeking to enforce Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of gender identity, remain undeterred despite an incoming Trump administration and Republican Congress that have expressed a desire to repeal much, if not all, of the law.
In a challenge to a Department of Health and Human Services rule implementing Section 1557, the American Civil Liberties Union told Judge Reed C. O’Connor, of the U.S. District Court for the Northern District of Texas, that it will take the case to the U.S. Court of Appeals for the Fifth Circuit whether or not the judge allows the group to become party in the case.
The judge blocked application of the rule on New Year’s Eve without addressing an ACLU motion to intervene in the case. Now the group has asked Judge O’Connor to rule on the intervention motion and has informed him of the plan to appeal to the Fifth Circuit regardless of his decision. If the court grants the intervention motion, the ACLU will appeal the order blocking the rule. If the court denies the motion, the group will appeal that denial.
Meanwhile, individual patients continue to bring claims directly under the statute, without regard for whether the HHS rule survives the court challenge. The most recent was a New Jersey transgender man who claimed a Catholic hospital violated Section 1557 by refusing to allow him to have a hysterectomy because his doctor recommended the procedure as treatment for his gender dysphoria.
I spoke with attorneys from both the ACLU and Lambda Legal, the group that represents the New Jersey man, and they both said Section 1557 provides affirmative nondiscrimination rights to transgender patients and the HHS rule is just a reiteration of various court interpretations of Section 1557.
Attorneys that I spoke to also believe that these cases remain on solid ground, despite ACA repeal efforts, because Section 1557 is a substantive provision, not a budgetary provision that could be repealed through the budget reconciliation process. Rather, a law repealing Section 1557 would need to garner a filibuster-proof majority in the Senate in order to pass. That appears to be a tall order considering that 60 votes are needed and the chamber is currently split 52-48 in favor of Republicans.
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