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California to HHS: LGB&T still covered here (Equality California update)

Implementation of anti-LGBTQ rule set for Aug. 18

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Harper Jean Tobin, center, speaks at a rally for transgender health in front of the White House on May 29, 2019. (Washington Blade photo by Michael Key)

This federal announcement would be laughable if it wasn’t official. The U.S. Department of Health and Human Services “respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress. We are unwavering in our commitment to enforcing civil rights in healthcare,” said Roger Severino, director of the Office for Civil Rights at HHS on June 12 as he declared that Section 1557 of the Affordable Care Act would no longer prohibit discrimination on the basis of sexual orientation or gender identity.

The new Trump rule is scheduled to go into effect on Aug. 18.

Lambda Legal and the Human Rights Campaign immediately filed lawsuits on behalf of clients specifically impacted by the Trump administration’s callous move. The new rule would strip away the Obama administration’s May 2016 rule implementing Section 1557 that extended the legal interpretation of sex discrimination to include bias based on sexual orientation or gender identity, as well as discrimination based on race, color, national origin, sex, age or disability.

HHS focuses narrowly on the definition of “sex” in the healthcare program and Severino apparently decided to issue the new rule before the Supreme Court’s recent decision in Bostock v. Clayton County, which explicitly links sex discrimination to discrimination based on sexual orientation or gender identity.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” the Supreme Court ruled.

In the name of “Protecting Civil Rights in Healthcare, Restoring the Rule of Law, and Relieving Americans of Billions in Excessive Costs,” as they announced in their June 16 press release, neither Severino nor HHS Sec. Alex Azar II has backed off implementing the new rule, despite Bostock and the global coronavirus pandemic.

“LGBTQ people, and particularly transgender people, have been under constant attack by this federal administration.”

“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,” said Alphonso David, president of the Human Rights Campaign, after filing the 70-page complaint on June 26 in the United States District Court for the Eastern District of New York.

“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 Washington Blade reported that the HRC lawsuit on behalf of the two trans women of color, both of whom suffer from serious lung conditions, sought a preliminary injunction against the rule change “on the basis that it violated the law in the aftermath of the Bostock decision, exceeds statutory authority under the Affordable Care Act, is arbitrary and capricious and violates the right to equal protection under the Fifth Amendment.”

Lambda Legal and Steptoe & Johnson LLP also filed a lawsuit, Whitman-Walker Clinic v. HHS, in the United States District Court for the District of Columbia challenging the HHS rule on behalf of four doctors and six organizations, including [email protected] Coalition and the Los Angeles LGBT Center.

“The health care discrimination rule will hurt marginalized communities who already experience barriers to care, but especially those of us who are transgender, non-English speakers, immigrants, people of color and people living with disabilities and will have an even more serious impact on those of us who hold intersectional identities,” said Bamby Salcedo, President and CEO of the [email protected] Coalition.

“The [email protected] Coalition and its affiliated organizations such as Arianna’s Center in Florida and Puerto Rico and the Fundación Latinoamericana de Acción Social (FLAS) in Texas exist because of the already present challenges in our communities and because everyone deserves easy access to care that is respectful of who we are, compassionate and competent. Our lives depend on it and we’re going to fight for it,” she said.

On July 9, Lambda Legal filed for a preliminary injunction. “We are putting a stop to the Trump administration’s immoral and legally indefensible attacks on our communities. Section 1557 of the ACA is clear in its inclusion of LGBTQ people and other vulnerable communities and the law is on our side. This rule cannot be allowed to go into effect, not even for a moment,” Omar Gonzalez-Pagan, Senior Attorney and Health Care Strategist for Lambda Legal, said in a press release. “The Trump administration has a dismal record of handling the COVID-19 pandemic and a well-documented score of attacking the rights of LGBTQ people, particularly transgender persons. Now the Trump administration seeks to double-down on both by limiting access to health care for LGBTQ people and other vulnerable individuals in the midst of a global pandemic.”

Equality California, which has filed or been part of numerous lawsuits against the Trump Administration, was also angry at HHS and furious about their timing – the anniversary of the mass shooting at Pulse, the gay nightclub in Orlando, Florida.

“We’re considering all possible avenues to block this heartless, discriminatory rule from ripping healthcare away from millions of Americans during a global pandemic,” Equality California Executive Director Rick Chavez Zbur said when HHS issued the final rule on June 12.

“The Trump-Pence Administration’s response to COVID-19 has ranged from incompetent to illogical to reckless. But this is a new low. To roll back healthcare protections for LGBTQ+ patients in the middle of a global pandemic is heartless and cruel. But to do so on the fourth anniversary of the mass shooting at Pulse Nightclub in Orlando is especially despicable.”

Zbur added: “Transgender and gender-nonconforming people deserve healthcare. Gay, lesbian, bisexual and queer people deserve healthcare. People with disabilities and people for whom English is not their first language deserve health care. No one should be denied this basic human right because of who they are or who they love. Shame on Donald Trump and his administration for saying otherwise.”

Equality California trans member Darren Stanley Lazor (photo courtesy Equality California)

On July 10, Equality California, representing trans member Darren Stanley Lazor, upped the ante in another federal court joining National Women’s Law CenterTransgender Law CenterTransgender Legal Defense & Education FundHarvard Law School Center for Health Law and Policy Innovation and the other plaintiffs in BAGLY v. HHS in Boston.

In their press release, Equality California briefly laid out the horror Lazor has had to endure:

“Darren lives in Ohio, where he has experienced extensive healthcare discrimination based on his gender identity. For example, in 2012, Darren sought treatment for symptoms that later turned out to be endometriosis and a large ovarian cyst. Darren was denied treatment by four healthcare providers because of his transgender status before finally receiving treatment for his life-threatening condition.

 

In December 2017, Darren began experiencing shortness of breath as the symptom of a recurring health problem. He returned to the emergency room closest to his home where he once again experienced a hostile and disrespectful hospital staff who discriminated against him in several ways, from misgendering his hospital bracelet as female, to making audible expressions of disgust when affixing EKG stickers near Darren’s mastectomy scars, to ignoring him in the treatment room with no explanation.

 

When the Trump-Pence Administration issued its decision to undermine LGBTQ+ nondiscrimination protections in the Affordable Care Act, Darren decided to step forward and share his story as a plaintiff in BAGLY v. HHS to ensure that no one else will be denied life-saving healthcare or be discriminated against simply because of who they are.”

That may have prompted the California Department of Managed Health Care (DMHC) to ‘affirm its commitment to protect consumers’ healthcare rights, including the right to be protected from discrimination based on categories like gender identity and sexual orientation that are enshrined in California law,” according to a DMHC email distributed to LA County healthcare providers and policy makers.

“The DMHC Nondiscrimination Statement was issued in response to the finalized rule issued by the U.S. Department of Health and Human Services that eliminated regulations that protected individuals from discrimination based on categories like gender identity and sexual orientation,” DMHC’s Marisa Ramos wrote in a “Dear Colleagues” letter. “The rule also eliminated a federal requirement that health plans include information about the availability of language assistance services for people with limited English proficiency (LEP).”

The DMHC statement reads, in part: “Notwithstanding the new federal rule, all California-licensed health plans must continue to comply with California law, which protects all Californians from discrimination based on, among other things, gender identity and sexual orientation. Likewise, California-licensed health plans must continue to comply with California’s requirements to provide enrollees with notice of the availability of free language assistance services in English and the top 15 languages spoken by LEP individuals in California.”

Out California Insurance Commissioner Ricardo Lara also re-issued the statement he sent June 15 to “All Health Insurance Companies, All Licensed Insurance Producers, and Other Licensees and Interested Parties” alerting them to comply with California’s Health Insurance Anti-Discrimination Protections – specifically noting that the HHS federal rule does not preempt state law.

Health insurance that is regulated by the California Department of Insurance (CDI) “remains subject to California’s antidiscrimination law. Consequently, health insurers must continue to comply with the existing antidiscrimination standards in California law, beyond the minimum requirements of federal law,” he said. Lara’s Notice to insurance carriers notes that state anti-discrimination requirements include the following:

  • “Anti-discrimination and language and disability assistance services notification requirements, including a that “[a]n insurer does not discriminate on the basis of race, color, national origin, ancestry, religion, sex, marital status, gender, gender identity, sexual orientation, age, or disability.”

  • A  prohibition against discriminating based on an insured or prospective insured person’s actual or perceived gender identity, or on the basis that the insured or prospective insured is a transgender person, including discrimination in the following: denying, cancelling, limiting or refusing to issue or renew an insurance policy; premium rating; designating gender identity or transgender identity as a pre-existing condition for the purpose of denying or limiting coverage; denying or limiting coverage or denying a claim for the following services due to gender identity or because the insured is a transgender person; health care services related to gender transition if coverage is available under the policy for such services when not related to gender transition; including but not limited to reconstructive surgery; health care services ordinarily or exclusively available to individuals of one sex when the denial or limitation is due only to the fact that the insured person is enrolled as belonging to the other sex or has undergone, or is in the process of undergoing, gender transition.”

Lara says the CDI will continue to “vigorously enforce these and other existing provisions of California law to protect Californians against wrongful discrimination.”

Anyone who thinks they have been subject to unlawful discrimination should contact the Department’s Consumer Complaint Center at 1-800-927-4357, or submit a complaint through the Department’s website at www.insurance.ca.gov.

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Coronavirus

CDC backtracks and releases new guidance on facial masks

CDC’s mask guidance recommends fully vaccinated people wear masks indoors when in areas with “substantial” & “high” transmission of Covid-19

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The Centers for Disease Control and Prevention Headquarters Building and Campus in Atlanta, GA (Blade file photo)

ATLANTA – The Centers for Disease Control and Prevention, citing increasing concern around the fast-spreading and highly contagious delta variant on Tuesday, reversed its earlier mask guidance to specifically target areas of the country with the highest levels of the coronavirus and recommended that everyone in those areas, vaccinated or not, wear a mask as the delta variant continues to spread rapidly across the U.S.

“CDC recommends localities encourage universal indoor masking for all teachers, staff, students, and visitors to schools, regardless of vaccination status,” the CDC announced. “Children should return to full-time in-person learning in the fall with proper prevention strategies are in place.”

The White House issued a statement from President Joe Biden which read in part:

“Today’s announcement by the CDC—that new research and concerns about the Delta variant leads CDC to recommend a return to masking in parts of the country—is another step on our journey to defeating this virus. I hope all Americans who live in the areas covered by the CDC guidance will follow it; I certainly will when I travel to these areas.

Today, the CDC also reaffirmed that we can safely reopen schools this fall—full time. Masking students is inconvenient, I know, but will allow them to learn and be with their classmates with the best available protection.

Most importantly, today’s announcement also makes clear that the most important protection we have against the Delta variant is to get vaccinated. Although most U.S. adults are vaccinated, too many are not. While we have seen an increase in vaccinations in recent days, we still need to do better.”

The CDC’s mask guidance that recommends fully vaccinated people wear masks indoors when in areas with “substantial” and “high” transmission of Covid-19 includes nearly two-thirds of U.S. counties.

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Coronavirus

State employees & health care workers must show proof of vaccination

Newsom blasts ‘right-wing echo chamber’ for vaccine misinformation & claimed individuals refusing the vaccine are similar to drunk drivers.

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California Governor Gavin Newsom (Blade file photo)

SACRAMENTO – As the Delta variant continues to surge driving coronavirus case numbers higher, Governor Gavin Newsom in a press conference Monday announced California is implementing a first-in-the-nation standard to require all state workers and workers in health care and high-risk congregate settings to either show proof of full vaccination or be tested at least once per week.

“We are now dealing with a pandemic of the unvaccinated, and it’s going to take renewed efforts to protect Californians from the dangerous Delta variant,” said Newsom. “As the state’s largest employer, we are leading by example and requiring all state and health care workers to show proof of vaccination or be tested regularly, and we are encouraging local governments and businesses to do the same. Vaccines are safe – they protect our family, those who truly can’t get vaccinated, our children and our economy. Vaccines are the way we end this pandemic.” 

The new policy for state workers will take effect August 2 and testing will be phased in over the next few weeks. The new policy for health care workers and congregate facilities will take effect on August 9, and health care facilities will have until August 23 to come into full compliance.

 

Despite California leading the nation in vaccinations, with more than 44 million doses administered and 75 percent of the eligible population having received at least one dose, . This increase is heavily due to the Delta variant, which is more contagious and kills people faster:

  • As of last week, California’s statewide case rate more than quadrupled from a low in May of 1.9 cases/100,000/day to at least 9.5 cases/100,000. 
  • The testing positivity was at a low of 0.7 percent in June, now it has risen to 5.2 percent. 
  • Hospitalizations were at a low in June of under 900, and the state numbers are now approaching 3,000. 
  • The vast majority of new cases are among the unvaccinated, with 600 percent higher case rates among the unvaccinated than for those who are vaccinated.

“California has administered more vaccines than any other state, with 75 percent of those eligible having gotten at least one dose, and we were weeks ahead of meeting President Biden’s 70 percent goal. But we must do more to fight disinformation and encourage vaccine-hesitant communities and individuals,” said California’s Health and Human Services Secretary Dr. Mark Ghaly. “The Delta variant is up to 60 percent more infectious than the Alpha strain but many times more infectious than the original COVID-19 strain. If you have been waiting to get vaccinated, now is the time.”  

Appearing on MSNBC, Newsom aggressively lashed out at some conservatives after being asked what the governor attributed to those 25% of Californians who remain unvaccinated. Newsom responded by saying he credited “[an] overwhelming majority of misinformation by right-wing pundits.

California to require vaccinations or frequent testing of state workers:

Appearing on MSNBC and CNN, Newsom claimed that individuals who refused to take the vaccine posed a risk to the public similar to drunk driving.

“It’s like drunk drivers, you don’t have the right to go out and drink and drive and put everybody else at risk including your own life,” the governor said.

Newsom also denounced high-profile conservatives, including Fox News host Tucker Carlson. In a harsh exchange on Twitter, Newsom aggressively put down an attack by Georgia Rep. Marjorie Taylor Greene (R) a noted QAnon and conspiracy afficando:

In addition to these new measures, the state continues its efforts to vaccinate Californians. Last week, California surpassed 2 million newly vaccinated individuals since launching its incentive program, Vax for the Win. The program increased HPI Q1 vaccinations, and increased doses administered to the Latinx population by 10 percent. It also successfully slowed the rate of decline that California was experiencing in vaccination rates.

The program’s peak showed a 33 percent increase in vaccinations, “outpacing the inoculation trends in much of the country,” including more recently a 4.4 percent increase for the week ending July 14 – a promising sign in California, as vaccination rates declined nationwide. 

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AIDS and HIV

Governor Newsom signs HIV & Aging Act authored by Sen. John Laird

Sponsors of SB 258 include Equality California, AIDS Project Los Angeles (APLA) Health, Services & Advocacy for GLBT Elders (SAGE)

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Photo Credit: Office of the Governor of California

SACRAMENTO – On Friday Governor Gavin Newsom announced the signing of Senate Bill 258, the HIV & Aging Act, authored by Senator John Laird (D – Santa Cruz). Senate Bill 258 will ensure HIV+ seniors are included in the definition of “greatest social need”.

“When I was the Santa Cruz AIDS Agency Director in the 1980’s, it was our dream to have people living with HIV live into old age,” said Senator Laird. “To be very clear, this group was not supposed to age. Governor Newsom signing the HIV & Aging Act is a historic moment for the LGBTQ community, and all those who have been affected by the HIV crisis.”

With the recent advancements in HIV treatment, people with HIV can keep the virus suppressed and live long and healthy lives. For this reason, the number of HIV positive older people is increasing. According to a 2018 California HIV Surveillance Report published by the California Department of Public Health, over half of the people living with the virus in California are now aged 50 years or older. This same report shows that 15 percent of newly diagnosed patients were age 50 and older in that same year.

Sponsors of SB 258 include Equality California, AIDS Project Los Angeles (APLA) Health, Services & Advocacy for GLBT Elders (SAGE), and the Los Angeles LGBT Center.

Sen. John Laird speaking at PRIDE with the LGBTQ Legislative Caucus June 2021 (Blade File Photo)

Equality California Legislative Director Tami A. Martin notes, “After surviving the darkest days of the AIDS epidemic, many Californians living with HIV are now over the age of 50, but in dire need of support. Thanks to Governor Newsom, Senator Laird and HIV advocates, the Golden State will now make sure that our elders living with HIV have access to food assistance, job training, transportation or any other vital services. We applaud Governor Gavin Newsom for signing the HIV & Aging Act into law, making California just the second state to ensure older Californians living with HIV don’t just continue to survive, but thrive.”

“Thanks to effective treatments, people with HIV are living longer than we could have ever imagined just a few decades ago and now a majority of people with HIV in California are over 50 years old. Unfortunately, our current health and social service systems are not yet prepared to address the unique needs of this population,” APLA Health Chief Executive Officer Craig E. Thompson said adding; “Many older people with HIV are long term survivors of the AIDS epidemic. They have lost countless loved ones and entire networks of social support. They also continue to face discrimination and alarming levels of stigma. We thank Senator Laird for his leadership on this historic bill to ensure that people aging with HIV have the resources and support they need to thrive and age with dignity.”

“We must ensure that LGBTQ seniors have the affirming care and support so they can age in peace with dignity,” stated Laird. “It’s incumbent upon us to not force individuals back into the closet for them to access adequate care. Once again, I’d like to applaud the Governor for his continued support of the LBGTQ community and to my colleagues for making this a priority bill.”

The HIV & Aging Act received unanimous bipartisan support through both chambers of the Legislature and is a legislative priority for the California Legislative LGBTQ Caucus.

Senate Bill 258 will go into effect January 1, 2022.

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