New Jersey attorney general files lawsuit challenging Trump administration’s elimination of anti-discrimination protections in health care

New Jersey Attorney General Gurbir Grewal on Monday joined a coalition of 23 attorneys general across the country in suing the U.S. Department of Health and Human Services over a new rule that rolls back federal protections against discrimination in health care for women, LGBTQ people, people with limited English proficiency, and others.

The lawsuit, filed in the U.S. District Court in New York, seeks to void a rule that was finalized by the U.S. Department of Health and Human Services in June. According to the lawsuit, the new rule related to section 1557 of the Affordable Care Act stips several protected groups of important rights. The Affordable Care Act prohibits discrimination against individuals on the basis of race, color, national origin, sex, disability, or age. According to the lawsuit, the new rule, finalized during the global COVID-19 pandemic, “will impose unjustifiable barriers to health care on vulnerable populations.”

“There’s never a good time for discrimination in health care, but the federal government’s decision to eliminate anti-discrimination protections during a pandemic means New Jersey residents may immediately face increased health risks,” Grewal said in a written statement about the lawsuit. “The burdens of this rule will fall most heavily on already-underserved populations, who will now find it even harder to obtain routine medical treatment as well as life-saving interventions. With our challenge to this rule, we are standing up for our residents against the current Administration’s latest effort to dismantle the protections of the Affordable Care Act.”

A 2016 U.S. Department of Health and Human Services rule detailed the obligations of health care providers and insurers with respect to transgender people, people seeking reproductive health care, people with limited English proficiency, and people with disabilities. Key provisions of the 2016 rule clarified that the Affordable Care Act’s antidiscrimination mandate broadly applies to all health providers and insurers that receive federal financial assistance. The rule clarified that the statute’s prohibition on discrimination on the basis of sex included discrimination based on gender identity, gender stereotypes, and pregnancy-related conditions. The rule also established detailed language access requirements to ensure non-discriminatory access to health services for people with limited English proficiency and established a uniform enforcement scheme for all forms of discrimination prohibited by the statute.
The new rule finalizes a proposal from last year to eliminate or curtail the protections. Under the new rule, Grewal said it will become easier for health care providers to deny care to transgender people and those seeking pregnancy-related treatment, and for insurance companies to deny them coverage. People with little or no English-speaking ability will no longer be entitled to language assistance services. People with disabilities will be exempted from any obligation to provide auxiliary aids and services.
The new rule dispenses with part of the 2016 rule that defined discrimination “on the basis of sex” to include discrimination based on gender identity, sex stereotypes, and pregnancy-related conditions. “The new rule removes those protections in direct conflict with the Supreme Court’s recent decision in Bostock v. Clayton County, which held that discrimination based on sexual orientation and transgender status are forms of sex discrimination prohibited by federal civil rights law,” according to a statement from Grewal’s office. In April, Grewal called on the federal government to withdraw the proposal because of the harm he said it would cause during the COVID-19 pandemic.

The lawsuit argues that the U.S. Department of Health and Human Services unlawfully ignored the harms the new rule will impose on vulnerable populations. The lawsuit also claims that the U.S. Department of Health and Human Services has failed to justify why the new rule is abandoning the prior federal policy that explicitly prohibited discrimination in health care.

Other plaintiffs in the lawsuit include California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Wisconsin.