Federal Judge Affirms BakerHostetler-Backed Lawsuit, Blocks HHS From Ending LGBTQ+ Bias Protections

News / August 19, 2020

On Aug. 17, a New York federal judge sided with BakerHostetler and the Human Rights Campaign (HRC) in halting recent regulations by the U.S. Department of Health and Human Services (HHS) that rolled back anti-discrimination protections for LGBTQ+ patients. Senior U.S. District Judge Frederic Block ruled that HHS’ actions likely conflict with the U.S. Supreme Court's 6-3 ruling in Bostock v. Clayton County, announced in June, which found that Title VII of the Civil Rights Act prohibits bias against workers based on sexual orientation and gender identity.

The representation – a collaboration of attorneys across the firm, including in the Atlanta, Cleveland and New York offices – is led by Partners Ted Jacobs, Kathryn Zunno-Freaney, and Katrina Quicker, and Associates Michael Sabella, Joshua Rovenger and Ryan Harbin. Additional team members included Audrey van Duyn, Alyssa M. Daniels, Reggie Grimes and Lauren Sternbach. Michael Sabella and Josh Rovenger split the successful oral argument.

"[W]hether by design or bureaucratic inertia, the fact remains that HHS finalized the 2020 Rules without addressing the impact of the Supreme Court's decision in Bostock. This makes it likely that plaintiff[s] will succeed on their claim that the rules are arbitrary and capricious,” Block wrote in his ruling. “When the Supreme Court announces a major decision, it seems a sensible thing to pause and reflect on the decision’s impact. Since HHS has been unwilling to take that path voluntarily, the Court now imposes it.”

It was nearly two months ago that BakerHostetler joined HRC in filing a federal civil rights lawsuit in the U.S. District Court for the Eastern District of New York on behalf of two transgender women of color: Tanya Asapansa-Johnson Walker, an Army veteran, two-time lung cancer survivor and community leader who co-founded a statewide advocacy group for transgender and gender non-conforming New Yorkers; and Cecilia Gentili, an activist, writer and storyteller with more than a decade of experience as a patient and healthcare policy advocate. Both say that, for years, because they are transgender, they routinely encountered harassment, verbal acts of discrimination (such as misgendering and deadnaming) and rough, physical handling when they sought healthcare treatment. Both women live with serious and chronic lung conditions, yet they delay or avoid treatment for these and other conditions due to fear of discrimination. Both also live with the trauma and grief of having lost friends and chosen family who succumbed to medical conditions that were treatable, but who nonetheless chose to forego medical care due to fear of harassment and discrimination.

Section 1557 of the Affordable Care Act prohibits discrimination based on race, color, national origin, sex, age or disability in certain health programs or activities. A landmark provision, it was the first of its kind to include protections from discrimination based on sex in the context of healthcare. The lawsuit argued that HHS violated federal law by removing language from the regulations interpreting Section 1557. Those prior regulations clarified that prohibited sex discrimination includes discrimination on the basis of gender identity and sex stereotyping, as well as sexual orientation. By HHS enacting its 2020 regulation, HHS effectively would enable discrimination against LGBTQ+ people seeking healthcare and health insurance. The complaint alleged that this undermines the very guiding purpose of the ACA: to expand access to affordable and quality healthcare.

Last year, HRC announced a new strategic impact litigation initiative and pro bono partnership with six leading law firms, including BakerHostetler. This is the first case that HRC filed as part of its new program.