Most readers are likely familiar with the landmark decision issued by the U.S. Supreme Court last week, in which the Court held that Title VII prohibits discrimination on the basis of sexual orientation and transgender status. (Read more about this decision here.) That decision not only provided important clarification to the scope of protections for the LGBT community, but it may also create a basis for challenges to a recent rule by the Trump administration’s Department of Health and Human Services (HHS).
As background, shortly after the Patient Protection and Affordable Care Act (ACA) became law, the Obama HHS issued a rule clarifying that the ACA prohibits discrimination on the basis of gender identity and transgender status. Then, earlier this month, the Trump HHS published its own rule that, once effective, would remove those anti-discrimination provisions. Three days later, the Supreme Court issued the above-referenced decision, and explicitly held that Title VII prohibits discrimination on the basis of transgender status.
This decision leaves the HHS’s new rule vulnerable to challenge. Several groups already have filed legal actions seeking to block the HHS from removing those bars on discrimination. The HHS has not yet changed course, and is asserting that the ACA’s specific language and applicability to healthcare render it distinguishable from the cases at issue before the Supreme Court (which involved Title VII and its applicability in the context of employment). Nevertheless, the language of the Supreme Court’s decision, and the Supreme Court’s opinion that “sex” discrimination includes discrimination on the basis of transgender status, create a significant reason to believe that the HHS rule will be overturned. The outcome of this litigation will have important consequences for healthcare organizations, insurers, and patients, and it may ultimately clarify protections that exist in other settings as well.