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Trump admin sued for refusing to back down on anti-trans health care rule

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With the Trump administration refusing to take back its rule permitting anti-transgender discrimination in health care following a U.S. Supreme Court ruling on LGBTQ rights effectively countermanding it, LGBTQ legal advocates are returning to the courts to bring the federal government into compliance.

The LGBTQ legal group Lambda Legal sued the Trump administration Monday over a rule from the Department of Health & Human Services permitting health care workers to refuse service to transgender people, including transition-related care and gender reassignment surgery. The case and the 85-page complaint is now pending before the U.S. District Court for D.C.

Omar Gonzalez-Pagan, a senior attorney at Lambda Legal, said in a Zoom call with reporters Monday the lawsuit was necessary because the Trump administration has used the law as a “weapon to target and hurt vulnerable communities, particularly the LGBTQ community.”

“They are seeking to harm those who have already experienced alarming rates of discrimination when seeking care,” Gonzalez-Pagan said. “Even now, in the midst of a global pandemic, their actions are simply wrong, they are callous, they are immoral. More importantly, for purposes of today, they are illegally indefensible.”

The Trump administration rule change was based on Section 1557 of the Affordable Care Act, which bars discrimination on the basis of sex in health care. During the final year of the Obama administration, HHS issued a rule interpreting the definition of “sex” to apply to cases of discrimination in health care against transgender people, women who have had abortions and patients with limited English proficiency.

However, in defiance of widespread legal precedent affirming anti-transgender discrimination is unlawful — and refusing to wait until later in the month, when the U.S. Supreme Court would issue the final word on the issue — the Trump administration revoked those regulations earlier this month with a rule change based on a narrow interpretation of the word “sex.”

The move prompted an outcry from transgender advocates who said it would enable widespread discrimination in health care during the time of a global coronavirus pandemic. LGBTQ legal advocates had threatened to sue over the reversal, which came to pass on Monday.

Chief among the reasons cited in the lawsuit for the unlawfulness of the Trump administration’s action was the U.S. Supreme Court’s decision in Bostock v. Clayton County, which determined anti-LGBTQ discrimination is a form of sex discrimination, thus illegal in the workplace under Title VII of the Civil Rights Act.

Even though the Supreme Court ruling was based on employment, the lawsuit says the Bostock decision applies to the Trump administration’s health care rule, calling it “not in compliance with the law” in the aftermath of the landmark decision.

“To be clear, Bostock’s holding that discrimination on the basis of sexual orientation or transgender status constitutes discrimination on the basis of sex forecloses HHS’s attempts to deny the full protection of Section 1557 to LGBTQ individuals and patients in health care settings,” the lawsuit says.

The lawsuit also seeks an injunction against the Trump administration rule change on the basis of it being arbitrary and capricious, in excess of statutory authority, in violation of due process and equal protection under the Fifth Amendment and in violation of freedom of speech and religion under the First Amendment.

“The Revised Rule violates the Establishment Clause by creating expansive religious exemptions for health care providers, plans, and employees at the expense of third parties – namely, plaintiffs, other providers, and most importantly the patients and the individuals whom plaintiffs serve,” the complaint says. “It invites health care providers, including insurance companies, hospitals, doctors, and nurses, to deny LGBTQ patients necessary medical treatment based on their religious beliefs.”

Although the lawsuit challenges the Trump administration rule change on legal grounds, representatives of plaintiffs in the lawsuit made an impassioned plea for reversal of the Trump administration rule change based on immortality and widespread harm of denying health care to LGBTQ people.

Naseema Shafi, CEO of the D.C.-based Whitman-Walker Health, said many D.C.-based LGBTQ patients come to the clinic because they experience marginalization and rejection in health care.

“Too often we learn of examples, such as a transgender patient who is subjected to hostile questions about who they are when seeking help from a hospital emergency room for deep pain, questions that may have long-term impact on whether that person seeks care when they are in pain again,” Shafi said.

Other examples Shafi cited were a transgender woman with cancer who was refused an ultrasound after being openly mocked by a technician performing the procedure, or patients trying to fill a prescription for PrEP for HIV prevention being denied service at a pharmacy.

“This type of discrimination is routine, and as health care providers we are obligated to do better and to rectify a history of upholding barriers to health and well-being,” Shafi said.

According to a 2017 survey conducted by the Center for American Progress, about 29 percent of transgender people reported being denied health care because of their actual or perceived gender identity. Eight percent of survey respondents reported being denied health care because of their sexual orientation.

Terra Russell-Slavin, deputy director of the Policy and Community Building Department at the Los Angeles LGBT Center, said on the Zoom call the Trump administration rule change is particularly reprehensible during the coronavirus pandemic.

“Many of our clients come to the center because they face discrimination and dehumanization when they seek basic medical care from other providers,” Russell-Slavin said. “That our government would seek to restrict access to care during a worldwide pandemic is yet another attack on their humanity.”

It should be noted that regardless of the outcome of the lawsuit, the underlying law on which the HHS rules are based, Section 1557 of the Affordable Care Act, is still in place, as is its language prohibiting discrimination on the basis of sex in health care. If LGBTQ people feel they experienced discrimination in health care, they can still sue in court, even if they can’t take it up with the HHS Office of Civil Rights under the Trump administration regulations.

One wrinkle in the lawsuit against the Trump administration is an injunction issued in 2016 by U.S. District Judge Reed O’Connor in Texas against the Obama administration’s trans-inclusive interpretation of the law.

The U.S. government was enjoined from enforcing the rule regardless of an administrative rule change in the back end. The Trump administration had the opportunity to appeal that injunction, but declined.

But if the injunction against Obama-era trans-inclusive interpretation of the law stays in place, and the district court in D.C. issues an injunction against the Trump administration reversal, what action should HHS take?

Gonzalez-Pagan, asked about potential conflicting injunctions by the Washington Blade, acknowledged higher courts may have to adjudicate conflicting injunctions to resolve them.

“Certainly if there are competing injunctions, we can see this move up to higher levels of courts, whether it’s a court of appeals, or at some point, even SCOTUS, if they so decide to take this case,” Gonzalez-Pagan said.

Each of the plaintiffs in the case are organizational plaintiffs or representatives of those organizations. One of them, the Los Angeles-based [email protected] Coalition, has members who say they’ve experienced discrimination in health care firsthand.

Bamby Salcedo, founder of the [email protected] Coalition, said she experienced discrimination in health care because she’s transgender, which is noted in the complaint.

“I myself as a trans Latina immigrant, and undocumented, has experienced discrimination while trying to access health care,” Salcedo said. “Not just myself, but Arianna Lint, as she was mentioned, but many members of our organization across the country have stated to us that they have been discriminated against while trying to access health care.”

An HHS spokesperson declined to comment on the lawsuit, citing a policy of no comment on pending litigation.

Click here for more information on other trans cases waged by Lambda Legal, plus resource links. – Karen Ocamb contributed to this story. 

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NBC Universal cancels Golden Globe awards broadcast for 2022

NBC Universal announced the network would not broadcast the 2022 Golden Globes awards ceremony

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Screenshot NBC coverage of the Golden Globes from previous years on YouTube

BURBANK – In the wake of an in-depth investigation into the Hollywood Foreign Press Association (HFPA), the organization responsible for the Golden Globes by the Los Angeles Times, which revealed a lack of racial diversity among its voting members and various other ethical concerns, NBC Universal announced Monday the network would not broadcast the 2022 Golden Globes ceremony.

This past February ahead of the HFPA’s 78th Annual Golden Globes ceremony, HFPA board chair Meher Tatna told Variety magazine that the organization that the organization of international journalists which covers the film, television, and entertainment industry has not had any Black members in at least 20 years.

Actor Sterling K. Brown,  a Golden Globe winner and two-time nominee, posted to Instagram; 

Criticism of the HFPA, which puts on the Globes and has been denounced for a lack of diversity and for ethical impropriates, reached such a pitch this week that actor and superstar celebrity Tom Cruise returned his three Globes to the press association’s headquarters, according to a person who was granted anonymity because they weren’t authorized to speak publicly about the decision, the Associated Press reported.

“We continue to believe that the HFPA is committed to meaningful reform. However, change of this magnitude takes time and work, and we feel strongly that the HFPA needs time to do it right,” a spokesperson for NBC said in a statement.

“As such, NBC will not air the 2022 Golden Globes,” the spokesperson added. “Assuming the organization executes on its plan, we are hopeful we will be in a position to air the show in January 2023.”

NBC’s decision comes as Vogue reported that the backlash to the HFPA came swiftly and decisively. Some of Hollywood’s biggest studios, including Netflix, Amazon, and WarnerMedia, announced they were severing ties with the organization until efforts were made to increase diversity and stamp out corruption, while a group of more than 100 of the industry’s biggest PR firms released a statement in March in which they pledged to boycott the ceremony for the foreseeable future. 

The HFPA did not immediately respond to inquiries by media outlets requesting comment about NBC’s decision.

In February, the organization said it was “fully committed to ensuring our membership is reflective of the communities around the world who love film, TV, and the artists inspiring and educating them.”

“We understand that we need to bring in Black members as well as members from other underrepresented backgrounds, and we will immediately work to implement an action plan to achieve these goals as soon as possible,” it said.

HFPA also announced a full timetable through this summer for implementing promised reform initiatives in response to NBC’s decision.

“Regardless of the next air date of the Golden Globes, implementing transformational changes as quickly — and as thoughtfully — as possible remains the top priority,” the HFPA board said in a statement. “We invite our partners in the industry to the table to work with us on the systemic reform that is long overdue, both in our organization as well as within the industry at large.”

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Coronavirus

LA County expected to hit herd immunity by mid summer

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Photo Credit: County of Los Angeles

LOS ANGELES – Los Angeles County could reach COVID-19 herd immunity among adults and the older teenagers by mid- to late July, public health officials announced Monday. Over the weekend LA Mayor Eric Garcetti announced that appointments are no longer needed for Angelenos to get COVID-19 vaccinations at any site run by the city.

Garcetti’s move is intended to give people who don’t have the time or technological resources to navigate online booking platforms a chance to get the shot.

The percentage of the population the County needs to vaccinate to achieve community immunity is unknown, however Public Health officials estimate it’s probably around 80%. Currently, 400,000 shots each week are getting into the arms of L.A. County residents, and there are over 2 million more first doses to go before 80% of all L.A. County residents 16 and older have received at least one shot.

At this rate, Public Health expects the County will reach this level of community immunity in mid- to late July and that assumes the County continues to at least have 400,000 people vaccinated each week. That would include both first doses that people need as well as their second doses.

This news came as Los Angeles Unified School District officials announced that attendance numbers at all grade levels in the District have been considerably lower than expected as extensive safety measures have failed to lure back the vast majority of families in the final weeks of school.

Only 7% of high school students, about 30% of elementary school children and 12% of middle school students have returned to campuses.

As of May 7, more than 8,492,810 doses of COVID-19 vaccine have been administered to people across Los Angeles County. Of these, 5,146,142 were first doses and 3,346,668 were second doses.

On Monday the U.S. Food & Drug Administration (FDA) expanded the emergency use authorization for the Pfizer COVID-19 vaccine for adolescents 12 to 15 years of age. The Pfizer vaccine is already authorized for people 16 years old and older.

Pfizer’s testing in adolescents “met our rigorous standards,” FDA vaccine chief Dr. Peter Marks said. “Having a vaccine authorized for a younger population is a critical step in continuing to lessen the immense public health burden caused by the COVID-19 pandemic.”

In a statement released Monday by the White House, President Joe Biden the FDA’s decision marked another important step in the nation’s march back to regular life.

“The light at the end of the tunnel is growing, and today it got a little brighter,” Biden said.

Los Angeles County will offer the Pfizer vaccine for 12 to 15-year-olds once the Centers for Disease Control and Prevention (CDC) affirms the FDA recommendation, which can happen as early as Wednesday. All adolescents 12-17 will need to be accompanied by a parent or guardian to get vaccinated.

To find a vaccination site near you, to make an appointment at vaccination sites, and much more, visit: www.VaccinateLACounty.com (English) and www.VacunateLosAngeles.com (Spanish). If you don’t have internet access, can’t use a computer, or you’re over 65, you can call 1-833-540-0473 for help finding an appointment or scheduling a home-visit if you are homebound. Vaccinations are always free and open to eligible residents and workers regardless of immigration status.

In the meantime, the Los Angeles County Department of Public Health and the Centers for Disease Control and Prevention say that unvaccinated people — including children — should continue taking precautions such as wearing masks indoors and keeping their distance from other unvaccinated people outside of their households.

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Health

HHS takes steps to reverse Anti-LGBTQ+ healthcare policy

The announcement came minutes before a scheduled hearing before the U.S. District Court for Equality California’s lawsuit challenging the Trump-Pence Administration’s “Rollback Rule”

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HHS the Hubert H. Humphrey Building (Photo: GSA)

WASHINGTON – The U.S. Department of Health and Human Services announced Monday morning that the Biden-Harris Administration will interpret and enforce Section 1557 of the Affordable Care Act (ACA) and Title IX’s prohibitions on discrimination based on sex to include discrimination on the basis of sexual orientation and gender identity.

The announcement came minutes before a scheduled hearing before the U.S. District Court for the District of Massachusetts in BAGLY v. HHS, Equality California’s lawsuit challenging the Trump-Pence Administration’s “Rollback Rule.”

The Trump-era policy undermines the ACA’s nondiscrimination protections on the basis of sex — including pregnancy, gender identity and sex stereotyping — as well as protections for patients with limited-English proficiency and those living with chronic illnesses, including HIV. Because the issues in BAGLY v. HHS are broader than what the Administration announced today, the Court scheduled a hearing on the government’s motion to dismiss for June 3rd at 2:30 PM EST.

In reaction to the HHS announcement, House Speaker Nancy Pelosi issued a statement Monday:

“Today, the Biden Administration has taken essential and potentially life-saving action to affirm that all people in America have the right to quality, affordable health care – no matter who they are or whom they love.  During this time of pandemic and always, it is vital that the most vulnerable have access to care, including LGBTQ Americans, who have long suffered injustice and discrimination that has left them dangerously exposed to health risks.
 
“The Trump Administration’s decision to greenlight anti-LGBTQ discrimination in health care in the middle of a pandemic was an act of senseless and staggering cruelty, made in blatant defiance of our values and a Supreme Court ruling made just a month prior.  
 
“Congressional Democrats together with the Biden Administration are proud to uphold the equal right of every American to access the care that they need to pursue a life of dignity and health.  We must now build on this progress and enact the House-passed Equality Act to fully ban anti-LGBTQ discrimination in our nation.”

In addition to Equality California, co-plaintiffs in BAGLY v. HHS include Darren Lazor, The Boston Alliance of Gay, Lesbian, Bisexual and Transgender Youth (BAGLY), Callen-Lorde Community Health Center, Campaign for Southern Equality, Equality California, Fenway Health, and Transgender Emergency Fund.

Lazor is a transgender man near Cleveland, Ohio, who experienced numerous counts of discrimination from healthcare providers on the basis of his gender identity from 2012 to 2017. He is a member of Equality California. Plaintiffs are represented by National Women’s Law Center (NWLC), the Transgender Law Center (TLC), the Transgender Legal Defense & Education Fund (TLDEF), the Center for Health Law and Policy Innovation (CHLPI) of Harvard Law School and law firm Hogan Lovells.

The lawsuit asserts that the new rule violates the Administrative Procedures Act by being contrary to law, arbitrary and capricious and a violation of the Equal Protection Clause of the 14th Amendment. Notably, it was published on June 19,  just days after the June 15, 2020 U.S. Supreme Court ruling in Bostock v. Clayton County, which found that it is unlawful sex discrimination to fire employees based on sexual orientation or gender identity.

The lawsuit also asserts that the new rule will embolden discrimination and harm LGBTQ+ patients and people seeking reproductive health care, further stigmatize abortion and other pregnancy-related care, harm patients with limited-English proficiency, especially immigrants, and harm people with chronic illnesses, including those living with HIV. The rule will also create confusion about the scope of protections against discrimination under federal law. 

Trans people, like plaintiff Darren Lazor, already face disproportionate discrimination in health care settings, including mistreatment by insurers and humiliation and harassment by doctors – problems that are exacerbated for trans people of color and trans people living in rural regions and the U.S. South. In seeking to deny trans people access to the healthcare they need, the Trump Administration had placed trans people, and especially Black trans women, in danger through deliberately harmful governmental action.

“We are thrilled by the news that the Biden-Harris Administration will take initial steps to reverse President Trump’s dangerous, discriminatory Rollback Rule, which undermined healthcare nondiscrimination protections critical to the LGBTQ+ community, and trans people in particular,” said Equality California Executive Director Rick Chavez Zbur.

“As the world recovers from a global pandemic, it’s more important than ever that every American have access to quality, affordable healthcare without fear of harassment and discrimination. We remain hopeful that under Secretary Becerra and Assistant Secretary Levine’s leadership, HHS will continue to take further steps to rescind the Trump-era regulation and address the harms that it has caused,” he added.

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