Judge Frederick Block of the U.S. District Court for the Eastern District of New York has preliminarily enjoined HHS from revising the Obama-era definitions of sex discrimination under Section 1557 of the ACA. See Walker v. Azar, No. 20CV2834FBSMG, 2020 WL 4749859, at *1 (E.D.N.Y. Aug. 17, 2020). The 2020 revisions would have excluded both sexual orientation and gender identity from the definition of sex for purposes of outlining the parameters of impermissible discrimination under the ACA.
In finding that the challengers to the 2020 revisions were likely to prevail on the merits, Judge Block ruled that the 2020 revisions were contrary to the U.S. Supreme Court’s recent holding in Bostock v. Clayton County, GA, 140 S.Ct. 1731 (2020), which held that Title VII’s prohibition of discrimination “on the basis of sex” necessarily precludes discrimination on the basis of sexual orientation and gender identity. Judge Block further ruled that HHS’s revisions were arbitrary and capricious because HHS refused to reconsider its position in light of Bostock. Judge Block’s order came a day before the new rule was set to take effect on August 18, 2020.
The result of Judge Block’s order is that the Obama-era definitions related to sex discrimination under Section 1557 remain in effect pending the resolution of the litigation:
Accordingly, the Court stays the repeal of the 2016 definition of discrimination on the basis of sex. As a result, the definitions of “on the basis of sex,” “gender identity,” and “sex stereotyping” currently set forth in 45 C.F.R. § 92.4 will remain in effect. In addition, the Court preliminarily enjoins the defendants from enforcing the repeal. Both the stay and the injunction shall remain in effect pending further order of this Court.
See id. at *10.
Under the 2016 rule, “on the basis of sex” is defined to include discrimination “on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, or gender identity.” 80 Fed. Reg. at 54,216 (codified at 45 C.F.R. § 92.4). “Sex stereotypes” is further defined as “stereotypical notions of gender, including expectations of how an individual represents or communicates gender to others, such as behavior, clothing, hairstyles, activities, voice, mannerisms, or body characteristics,” id. at 54,216-17, and “gender identity” is defined as “an individual’s internal sense of gender, which may be different from that individual’s sex assigned at birth,” id. at 54,216.
In light of this ruling, health systems should continue to take steps to proactively educate and train staff, providers, and executives on the importance of avoiding discrimination on the basis of gender identity and sex stereotyping. The Plaintiffs in Walker alleged, among other things, that they were mocked by medical office staff, referenced with offensive language, denied fulsome treatment, and asked invasive questions apparently unrelated to the medical treatment they needed. Therefore, in addition to training regarding privacy, sensitivity, and compassionate care, relevant training should include training employees against mis-gendering transgender individuals. See Prescott v. Rady Children’s Hosp.-San Diego, 265 F. Supp. 3d 1090, 1099 (S.D. Cal. 2017) (“The Complaint alleges that the RCHSD staff discriminated against Kyler by continuously referring to him with female pronouns, despite knowing that he was a transgender boy and that it would cause him severe distress.”).
Additionally, health systems should also invest resources into providing culturally-competent care to LGBTQ individuals. Cf. Rumble v. Fairview Health Servs., No. 14-CV-2037 SRN/FLN, 2015 WL 1197415, at *15 (D. Minn. Mar. 16, 2015) ([Physician] allegedly treated Rumble with hostility and aggression while asking him pointed questions that were allegedly meant to embarrass Rumble.”). In doing so, health systems will not only reduce legal risk to their organizations, but they will drastically improve the quality of the healthcare provided to LGBTQ individuals. If your health system needs guidance or assistance in preparing protocols or training, please do not hesitate to contact us.
Jennifer L. Shelfer is a partner in Arnall Golden Gregory LLP’s litigation and employment law practice groups. She has experience representing health care systems in a wide variety of litigation, and in conducting investigations into workplace misconduct.