Mounting state lawsuits oppose gender nondiscrimination rule

Lawsuits in 18 states could upend a federal nondiscrimination rule scheduled to take effect early next month and designed to protect healthcare services for LGBTQ+ patients.

The Biden administration’s rule on Section 1557 of the Affordable Care Act is set to be implemented July 5 — but four lawsuits filed over the past month could put it on hold in all or part of the country. Section 1557 prohibits treatment and coverage discrimination on the basis of race, ethnicity, age, disability or sex, and each of the past three administrations has faced lawsuits over their varying interpretations.

Related: HHS proposes to reinstate Obama-era nondiscrimination policies

Florida, joined by the Catholic Medical Association, first filed a lawsuit against the Health and Human Services Department May 6, followed by a separate lawsuit filed by a group of 15 other states. Texas and Montana also sued the over the rule, as well as the McComb Children's Clinic in McComb, Mississippi.

The lawsuits allege the regulation would force providers to perform certain services in violation of state laws.

In the lawsuit filed by 15 states, the plaintiffs also allege HHS' rule does not define sex and therefore can't dictate what it means to discriminate on the basis of sex.

"HHS’s 2024 rule threatens states and healthcare providers with massive penalties for failing to align their policies, coverage decisions and even medical care with patients’ subjective gender identities rather than sex," the lawsuit alleges. States in the lawsuit include Oklahoma, Indiana, Kentucky, Kansas, South Dakota, South Carolina, Ohio, Mississippi, Alabama, Nebraska, Virginia, West Virginia, Georgia, Tennessee and Louisiana.

In a federal court filing, Florida and the Catholic Medical Association alleged the Biden administration's rule would require providers offer certain gender-affirming services to patients and “threaten the livelihood of doctors who refuse to provide experimental, sterilizing, ‘gender-change’ interventions to persons suffering from psychological distress.”

Florida and the association asked the court to put the rule on hold during the lawsuit to keep health systems and insurers that don't meet the rule's requirements from losing federal funding. A hearing on the request from Florida and the association for a preliminary injunction is scheduled for Friday.

"We're asking the court to rule as a legal matter that the federal government never had the authority to impose this gender transition mandate," said Julie Marie Blake, senior counsel for regulatory litigation at Alliance Defending Freedom, the firm representing the Catholic Medical Association.

Kellan Baker, who helped draft Section 1557 while working at the advocacy organization National Coalition for LGBTQ Health, said the lawsuits misinterpret the nondiscrimination rule. Baker said the rule would prohibit health systems from denying transgender patients the same services offered to cisgender patients on the sole basis of their identity.

“When you look at the final rule, it is very clear that it does not establish a new standard of care,” said Baker, now the executive director of the Whitman-Walker Institute, a LGBTQ+ research and advocacy organization. “It does not require the coverage or provision of any particular type of service, or any healthcare provider to offer a service that is not in scope for them.”

The rule does not include a determination that state laws banning certain services would violate Section 1557, HHS wrote in a filing opposing Florida's motion for a nationwide preliminary injunction.

There are laws in 25 states that ban gender confirmation surgeries, puberty-blocking medication and hormone therapies to transgender youth. One of those states is Ohio, which is assessing how the Section 1557 rule could affect a state law prohibiting gender affirming services for minors in hospitals and ambulatory surgical facilities, the state health department said in a statement. An Ohio county court has temporarily paused the state's law until a hearing set for July 15. A federal judge last week overturned Florida's law banning gender affirming services for minors, declaring it unconstitutional.

Some larger health systems said all patients will continue to have access to the same level of care, regardless of how Section 1557 is interpreted. Still, health professionals serving LGBTQ+ populations worry the rule's uncertain future could complicate access to care by creating a chilling effect and causing uncertainty among providers.

Nearly half of LGBTQ+ patients have had negative experiences with healthcare providers in the past two years, compared with 33% of non-LGBTQ+ patients, according to a 2023 survey of more than 6,000 adults by KFF. LGBTQ+ patients also were twice as likely to experience discrimination during a healthcare visit.

In some instances, patients have encountered providers that are unsure if they are allowed to prescribe treatments like HIV-prevention medication, said Christopher Hamilton, CEO of Texas Health Action, an LGBTQ+ healthcare provider based in Austin, Texas. Hamilton said many private practices stopped providing gender-affirming care for adults in Texas following the state’s ban on care for transgender youth and the attorney general’s targeted investigations of facilities.

“Our healthcare is now politicized and it may be easier for practices to just say, ‘We're not going to do it,’” he said. “That's exactly why we need nondiscrimination protections.”

States with their own nondiscrimination laws are not as reliant on federal regulation to create a roadmap.

In Minnesota, nondiscriminatory care for LGBTQ+ patients is mandated by the state’s 'trans refuge' law and many systems have their own nondiscrimination policies, so providers are generally less worried about or affected by national opposition to Section 1557, said Dr. Kade Goepferd, chief education officer and medical director of the gender health program at Children’s Minnesota, a Minneapolis-based nonprofit health system.

What Section 1557 does is provide clarity and direction to providers, Goepferd said.

"What I see in this rule change is the recognition that in healthcare, we don't say 'This type of medication is okay for a person with this gender identity, but not this gender identity,'" Goepferd said. "I'm hoping it gives us a new focus of how we're providing healthcare, and that it is not okay to withhold treatment totally based on gender identity."