Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

FOR IMMEDIATE RELEASE: 
Jul 16 2020

Rule threatens health care access for LGBTQ communities

OLYMPIA — Attorney General Bob Ferguson today announced a lawsuit challenging the Trump Administration’s new rule vastly limiting anti-discrimination protections under the Affordable Care Act. Among many other changes, the rule removes explicit protections against discrimination on the basis of gender identity and sex stereotyping. This allows for discrimination against LGBTQ patients — particularly transgender patients.

The rule also allows a wide range of health care organizations, including health insurers and religious institutions, to discriminate against their patients, even in emergencies or in areas of the state where patients have little or no choice in their health care provider. Under the rule, about 1.5 million Washingtonians will not have broad antidiscrimination protections when seeking health care. This includes an estimated 82,000 LGBTQ patients, including as many as 16,000 transgender patients.

The Trump Administration’s rule came only a few days after the U.S. Supreme Court’s June 15 decision that discrimination on the basis of transgender status or sexual orientation is unlawful. Ferguson’s lawsuit, filed in U.S. District Court for the Western District of Washington, asserts that this new rule defies the Supreme Court’s ruling. It also violates the express language and fundamental purpose of the Affordable Care Act to increase access to health insurance and health care, and violates patients’ constitutional rights.

“We should be working to eliminate discrimination in our health care system, not allowing it,” Ferguson said. “President Trump’s unlawful attempt to roll back anti-discrimination protections under the Affordable Care Act directly threatens the health and lives of Washingtonians. We’re in the middle of a pandemic — broad health care coverage has rarely been more critical. I will not allow the Trump Administration to attack Washingtonians’ access to unbiased care.”

“Equal access to health care should never be a question, much less in the middle of a pandemic,” Gov. Jay Inslee said. “This discriminatory and disgraceful rule is an attack on transgender patients and undermines Washingtonians’ access to reproductive services and multi-lingual care. I strongly support the Attorney General’s challenge to ensure this cruel and unlawful policy does not stand.”

"It is shameful that in the middle of a global pandemic the Trump Administration would actively work to reduce healthcare access for any U.S. residents,” said Equal Rights Washington Board Chair Monisha Harrell. “Trump's ongoing attacks on LGBTQ and immigrant people demonstrates his commitment to harming historically marginalized communities. Washington state is fortunate to have an Attorney General willing to fight for our state's values.”

 

Details of the new rule

Under the Affordable Care Act, health care providers are prohibited from discriminating against patients based on sex, race, national origin, age or disability.

The new rule strips gender identity and sex stereotyping from the definition of “sex discrimination” under the law. This gives health care providers license to refuse care to LGBTQ patients.

The rule also limits the types of health care organizations that must comply with the ACA’s anti-discrimination protections, including many health insurers. Only ACA marketplace plans, such as the ones available through Washington Healthplanfinder, and plans that receive federal funding would be required to comply. Private insurers, including insurance plans sponsored by many large employers, would no longer be subject to the ACA’s anti-discrimination protections.

The rule also allows religious health care organizations, including religious hospitals and their employees, to discriminate on the basis of sex. Providers may deny services based on religious belief without any safeguards ensuring the patient is able to receive timely, necessary care from another source.

In addition, the rule permits health care entities to provide fewer services that people with limited English proficiency need in order to have meaningful access to health care, including translations of important medical information.

 

Impacts of the rule in Washington

If the new rule takes effect, the harm to Washington and its residents will be substantial and far-reaching. The Trump Administration’s new rule will jeopardize the health, safety, and physical and economic well-being of Washington residents by inviting discrimination, particularly against LGBTQ individuals and people with limited English proficiency.

Washington has broad and inclusive anti-discrimination laws. However, these state laws do not apply to some health care plans, like those that are part of the Federal Employees Health Benefits Program and self-funded group health plans under the Employee Retirement Income Security Act of 1974. At least 1.5 million Washingtonians receive health coverage from these kinds of plans.

The Washington State Department of Health estimates that, if the rule stands, between 5,200 and 16,000 transgender Washingtonians will lose basic health coverage, and coverage for gender affirming health care services. This will cause devastating mental health consequences including depression, substance abuse and suicide, harming Washington and its residents.

An additional 82,000 LGBTQ Washingtonians will lose protection from discrimination as they seek health care. The threat of discrimination would cause many people to delay important care or lose their health care coverage altogether.

Under the new rule, many health care providers or insurers could:

  • Deny or limit birth control options and interfere with communications regarding a full range of treatment options, potentially impacting 1.46 million Washington women;
  • Use provider networks that exclude health care providers who specialize in treating conditions for which LGBTQ communities are at higher risk;
  • Require patients to pay more for all drugs that treat a certain condition for which LGBTQ communities are at higher risk, like HIV, while not doing so for other conditions; and
  • Deny necessary care based on a religious objection — particularly harmful in rural areas where a religious hospital may be the only option.

Ferguson’s complaint states, “If health care providers can refuse services because of who the patient loves, how the patient dresses, whether the sex they were assigned at birth matches their gender identity, or whether they speak English fluently, the results will be devastating. Vulnerable people will lose health care coverage, be denied needed medical care, and fewer people will purchase health insurance because they would not be able to use it in many situations where they need it.”

 

Legal claims

Ferguson’s lawsuit asserts that the rule violates the Administrative Procedure Act, which prevents the federal government from implementing rules that violate the law or Constitutional rights. The rule violates the express language of the ACA and the Equal Protection and Due Process clauses of the Constitution by allowing broad discrimination to interfere with important medical care.

Under the Administrative Procedure Act, the federal government must provide evidence and reasoning when it changes a rule. The rule creates sweeping and drastic changes from previous Affordable Care Act rules. It contradicts the fundamental purpose of the ACA to increase access to health care.

Assistant Attorneys General Marsha Chien, Neal Luna and Brian Sutherland are leading the case for Washington.

 

Lawsuits against the Trump Administration

With today’s filing, Ferguson has filed 66 lawsuits against the Trump Administration. Thirty-six of these cases are awaiting a judicial ruling. Ferguson has 30 legal victories against the Trump Administration. There has been one adverse decision on the merits and Ferguson is appealing that decision. Twenty of those cases are finished and cannot be appealed.

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The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.

 

Media Contact:

Brionna Aho, Communications Director, (360) 753-2727; Brionna.aho@atg.wa.gov

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