WHITMAN-WALKER CLINIC, INC. et al v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES et al

Filing 1

COMPLAINT against ALEX M. AZAR, II, ROGER SEVERINO, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, SEEMA VERMA ( Filing fee $ 400 receipt number ADCDC-7253108) filed by SARAH HENN, MD, MPH, BRADBURY-SULLIVAN LGBT COMMUNITY CENTER, RANDY PUMPHREY, D.MIN, LCC, BCC, WARD CARPENTER, MD, LOS ANGELES LGBT CENTER, ROBERT BOLAN, MD, AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC. d/b/a GLMA: HEALTH PROFESSIONALS ADVANCING LGBTQ EQUALITY, THE TRANSLATIN@ COALITION, WHITMAN-WALKER CLINIC, Inc. d/b/a WHITMAN-WALKER HEALTH, AGLP: THE ASSOCIATION OF LGBTQ PSYCHIATRISTS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Civil Cover Sheet, # 4 Summons U.S. Department of Health and Human Services, # 5 Summons Alex M. Azar II, # 6 Summons Roger Severino, # 7 Summons Seema Verma, # 8 Summons U.S. Attorney General, # 9 Summons U.S. Attorney for the District of Columbia)(Dennehy, Johanna)

Case 1:20-cv-01630 Document 1 Filed 06/22/20 Page 1 of 85

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WHITMAN-WALKER CLINIC, Inc. d/b/a
WHITMAN-WALKER HEALTH
1377 R Street NW
Washington, DC 20009;
THE TRANSLATIN@ COALITION
3055 Wilshire Boulevard, Suite 350
Los Angeles, CA 90010;
LOS ANGELES LGBT CENTER
1625 Schrader Boulevard
Los Angeles, CA 90028;
BRADBURY-SULLIVAN LGBT
COMMUNITY CENTER
522 West Maple Street
at Bayard Rustin Way
Allentown, PA 18101;
AMERICAN ASSOCIATION OF PHYSICIANS
FOR HUMAN RIGHTS, INC. d/b/a GLMA:
HEALTH PROFESSIONALS ADVANCING
LGBTQ EQUALITY
1133 19th Street NW, Suite 302
Washington, DC 20036;
AGLP: THE ASSOCIATION OF LGBTQ
PSYCHIATRISTS
4514 Chester Avenue
Philadelphia, PA 19143;
SARAH HENN, MD, MPH
c/o Steptoe & Johnson LLP
1330 Connecticut Avenue NW
Washington, DC 20036;
RANDY PUMPHREY, D.MIN, LCC, BCC
c/o Steptoe & Johnson LLP
1330 Connecticut Avenue NW
Washington, DC 20036;

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) COMPLAINT FOR DECLARATORY
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Case 1:20-cv-01630 Document 1 Filed 06/22/20 Page 2 of 85

ROBERT BOLAN, MD
c/o Steptoe & Johnson LLP
1330 Connecticut Avenue NW
Washington, DC 20036; and
WARD CARPENTER, MD
c/o Steptoe & Johnson LLP
1330 Connecticut Avenue NW
Washington, DC 20036,
Plaintiffs,
v.
U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES
200 Independence Avenue SW
Washington, D.C. 20201;
ALEX M. AZAR II, in his official capacity as
Secretary of U.S. Department of Health and
Human Services,
200 Independence Avenue SW
Washington, D.C. 20201;
ROGER SEVERINO, in his official capacity as
Director, Office for Civil Rights, U.S.
Department of Health and Human Services,
200 Independence Avenue, SW
Room 509F, HHH Building
Washington, D.C. 20201; and
SEEMA VERMA, in her official capacity as
Administrator for the Centers for Medicare and
Medicaid Services, U.S. Department of Health
and Human Services,
7500 Security Boulevard,
Baltimore, MD 21244,
Defendants.

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Case 1:20-cv-01630 Document 1 Filed 06/22/20 Page 3 of 85

INTRODUCTION
1.

A person’s access to health care should not be contingent on their sex, gender

identity, transgender status, sexual orientation, race, national origin, age, disability, or religion.
When people go to a doctor’s office, hospital, or an emergency room seeking treatment, they
expect and are entitled to receive care appropriate to meet their health needs without regard to
who they are or the type of health care they seek.
2.

Yet, in the midst of a global pandemic, the Trump Administration’s Department

of Health and Human Services (“HHS”) has sought to diminish protections from discrimination
in health care because of a person’s sex, gender identity, transgender status, sexual orientation,
race, national origin, age, or disability.
3.

HHS has taken these actions notwithstanding and despite the decision of the

Supreme Court of the United States on June 15, 2020 holding that discrimination on the basis of
a person’s transgender status or sexual orientation is discrimination on the basis of sex. See
Bostock v. Clayton Cty., Ga., 590 U.S. ___, 2020 WL 3146686 (June 15, 2020).
4.

As of the filing of this Complaint, and in less than six months, approximately 2.25

million people in the United States have tested positive for COVID-19, resulting in
approximately 120,000 deaths to date.1 The United States is facing a public health crisis.
During these difficult times, Americans need the security and peace of mind that they will be
able to access the health care they need and require. The government should be doing everything
within its capacity to protect and preserve the safe and effective delivery of health care to all
patients regardless of their sex, gender identity, transgender status, sexual orientation, race,

1

Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Cases in
the U.S., https://perma.cc/38HG-JUBB (last visited June 21, 2020).

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national origin, age, or disability. Yet, HHS is doing exactly the opposite, adopting positions
that fly in the face of its stated mission to “enhance and protect the health and well-being of all
Americans by providing for effective health and human services.” 2
5.

Recognizing the paramount importance of providing people with prompt,

effective, and nondiscriminatory access to health care, Congress has taken repeated and
concerted efforts to improve access to health care and bar discrimination within the health care
industry.
6.

Section 1557 of the Patient Protection and Affordable Care Act (“ACA”), 42

U.S.C. § 18116, specifically and explicitly protects against discrimination in the provision of
health care services. Section 1557 prohibits discrimination based on sex, race, color, national
origin, age, and disability.
7.

In 2016, HHS promulgated a final rule, developed over the course of six years and

two notice-and-comment periods, to implement the nondiscrimination requirements of Section
1557. See Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376 (May 18,
2016) (formerly codified at 45 C.F.R. pt. 92) (the “2016 Final Rule”). Consistent with Section
1557’s nondiscrimination mandate, the 2016 Final Rule made clear that health care providers and
insurers may not discriminate against lesbian, gay, bisexual, transgender, and queer (“LGBTQ”)
people in making medical and coverage decisions. Doing so constitutes discrimination on the
basis of sex, which the 2016 Final Rule specifically defined to include discrimination on the
basis of gender identity and sex stereotyping, among other criteria.

2

U.S. Dep’t of Health & Human Servs., About HHS, HHS.GOV, https://perma.cc/CY5N-RBPH.
2

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8.

The 2016 Final Rule also included specific guidance about how Section 1557’s

sex discrimination prohibition applies to transgender people, including access to and coverage of
gender-affirming health services.
9.

In addition, the 2016 Final Rule confirmed, based on the plain statutory language

of Section 1557, that all enforcement mechanisms available under the statutes listed in Section
1557 are available to any person regardless of the person’s protected characteristic, establishing a
unitary legal standard for all violations of the statute. It also confirmed that Section 1557
prohibits not only intentional discrimination, but conduct and practices that have the effect of
subjecting individuals to discrimination on the basis of their sex.
10.

Since the 2016 Final Rule went into effect, it has led to a dramatic decrease in

discriminatory policies and practices.3
11.

Now, however, with next-to-no legal, medical, or reasoned policy foundation, and

contrary to the opinions of professional medical and public health organizations,4 HHS has
issued a revised regulation under Section 1557 (the “Revised Rule”) that rolls back the 2016
Final Rule and limits the protections for LGBTQ people, among others. See Nondiscrimination
in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg.

3

See, e.g., Sharita Gruberg and Frank J. Bewkes, The ACA’s LGBTQ Nondiscrimination
Regulations Prove Crucial, Center for American Progress (Mar. 7, 2018),
https://perma.cc/CTP2-UMEJ.
4

See, e.g., Letter from James L. Madara, MD, Exec. Vice President/CEO, American Medical
Association, to The Hon. Alex M. Azar II, Sec’y, U.S. Dep’t Health & Hum. Servs. (Aug. 13,
2019), https://perma.cc/9N7N-JJ3G; Letter from Saul Levin, MD, MPA, FRCP-E, CEO & Med.
Dir., American Psychiatric Association, to Sec’y Alex Azar II, U.S. Dep’t Health & Hum. Servs.
(Aug. 9, 2019), https://perma.cc/YUG9-E6SW; Letter from Katherine B. McGuire, Chief
Advocacy Officer, American Psychological Association, to U.S. Dep’t Health & Hum. Servs.
(Aug. 13, 2019), https://perma.cc/LE65-6Q63.
3

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37,160 (June 19, 2020) (to be codified at 42 C.F.R. pts. 438, 440, & 460 and 45 C.F.R. pts. 86,
92, 147, 155, & 156).
12.

Although the Revised Rule cannot change the law, it is part of the Trump

Administration’s concerted and aggressive effort to undermine protections for LGBTQ people,
including Section 1557’s nondiscrimination protections and the regulatory structure and
administrative processes the 2016 Final Rule established. Multiple provisions in the Revised
Rule threaten to confuse and mislead patients, health care providers, and insurers and will result
in increased discrimination and substantial harm to precisely those vulnerable communities that
Section 1557 is intended to protect, like LGBTQ people and their families.
13.

Relying on essentially one federal district court opinion, the Revised Rule

arbitrarily and capriciously repeals entirely the 2016 Final Rule’s definition of discrimination on
the basis of sex, which specifically included discrimination based on gender identity and sex
stereotyping, as well as related provisions prohibiting discrimination against transgender
individuals. The elimination of this definition not only invites health care insurers and providers
to discriminate against LGBTQ people seeking health care, but it also introduces substantial
confusion among health care providers and insurers regarding their legal obligations and the
right of the populations they serve to be free from sex discrimination, particularly in light of the
Supreme Court’s decision in Bostock v. Clayton County, Georgia, 590 U.S. __, 2020 WL
3146686, which held that discrimination based on transgender status or sexual orientation
“necessarily entails discrimination based on sex.” Id. at *11.
14.

The Revised Rule, which HHS publicly released three days prior to the Supreme

Court’s ruling in Bostock, recognizes that “a holding by the U.S. Supreme Court on the meaning
of ‘on the basis of sex’ under Title VII will likely have ramifications for the definition of ‘on the

4

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basis of sex’ under Title IX,” because “Title VII case law has often informed Title IX case law
with respect to the meaning of discrimination ‘on the basis of sex.’” 85 Fed. Reg. 37,168.
However, undeterred from their goal to foster discrimination against LGBTQ people, HHS
published the Revised Rule, without any changes, four days after the Supreme Court’s decision
in Bostock.
15.

To be clear, Bostock’s holding that discrimination on the basis of sexual

orientation or transgender status constitutes discrimination on the basis of sex forecloses HHS’s
attempts to deny the full protection of Section 1557 to LGBTQ individuals and patients in health
care settings.
16.

The Revised Rule also eliminates the unitary legal standard for enforcement of

violations of Section 1557, replacing it with a fractured approach that will complicate and make
it more difficult to bring discrimination claims under Section 1557, particularly claims of
intersectional discrimination. The Revised Rule’s elimination of the explicit recognition of
private rights of action and the availability of compensatory damages under Section 1557 also
will confuse the public and mislead individuals into not asserting their legal rights.
17.

In addition, the Revised Rule imports broad and sweeping exemptions for

discrimination based on personal religious or moral beliefs from the identified statutes in Section
1557 and other statutes, including the Religious Freedom Restoration Act (42 U.S.C. § 2000bb et
seq.), which Section 1557 does not reference. These exemptions invite individual health care
providers, health care entities, and insurers across the country to opt out of treating patients,
including many transgender patients, if they believe doing so would compromise their faith.
18.

These exemptions will adversely affect health care providers that serve and treat

the LGBTQ community and their LGBTQ patients because (1) their individual health care

5

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employees may decline to serve patients based on religious objections, and (2) their ability to
refer patients to other providers will be impaired, as the Revised Rule would invite
discrimination against their LGBTQ patients.
19.

HHS’s attempt to create new religious exemptions in Section 1557 is contrary to

law and endangers patients’ health in the name of advancing the religious beliefs of those who
are entrusted with caring for them—a result sharply at odds with HHS’s stated mission to
“enhance and protect the health and well-being of all Americans” and to “provid[e] for effective
health and human services.”5
20.

The Revised Rule also arbitrarily and capriciously eliminates the requirement that

covered entities post notices informing individuals about nondiscrimination requirements and
their rights and also cuts back the safeguards that the 2016 Final Rule implemented for patients
with Limited English Proficiency (“LEP”), weakening protections for LEP patients and
depriving families and individuals of adequate care.
21.

In addition, the Revised Rule limits the scope of Section 1557, cutting back on the

entities subject to Section 1557. Despite the plain language of Section 1557, the Revised Rule
excludes health programs and activities that HHS funds but are not established or administered
under Title I of the ACA and health insurance plans outside of Title I of the ACA that do not
receive Federal financial assistance. Not only is this action inconsistent with Section 1557, it
will cause drastic reductions in protections for LGBTQ people.
22.

The Revised Rule also amends a series of unrelated regulations issued under

statutes other than Section 1557 by deleting references to sexual orientation and gender identity
discrimination. HHS does not have the authority to make these changes within the rulemaking

5

U.S. Dep’t of Health & Human Servs., About HHS, HHS.GOV, https://perma.cc/CY5N-RBPH.
6

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challenged, and these changes are not supported by any analysis or evidence. The Revised Rule
is intended only to send a message that a person’s LGBTQ identity is not recognized and
LGBTQ people can be subjected to discrimination.
23.

The Revised Rule’s cost-benefit analysis is fatally flawed, incomplete, and

unreasonable. Specifically, HHS fails to account for the increased costs to patients, insurers, and
the health care system at large stemming from discrimination against LGBTQ and other patients.
24.

The Revised Rule, if allowed to go into effect, will undermine the progress

achieved so far in eradicating health care discrimination against LGBTQ people in a broad array
of health care programs and entities by inviting health care insurers and providers once again to
discriminate against them, while also discouraging LGBTQ people from seeking health care in
the first instance.
25.

In adopting the Revised Rule, HHS acted arbitrarily and capriciously, in excess of

its statutory authority, and not in accordance with the law in violation of the Administrative
Procedure Act (“APA”) (5 U.S.C. § 551 et seq.). The Revised Rule also violates the Equal
Protection Guarantee and Due Process Clause of the Fifth Amendment, and the Free Speech and
Establishment Clauses of the First Amendment to the United States Constitution.
26.

The Revised Rule is causing and will continue to cause irreparable harm to

LGBTQ people and health care providers. The Revised Rule should be declared unlawful,
enjoined, and vacated.
JURISDICTION AND VENUE
27.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331, as this action arises

under the laws of the United States and United States Constitution; 28 U.S.C. § 1346, as a civil
action against the United States founded upon the Constitution, an Act of Congress, or an

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executive regulation; and 28 U.S.C. § 1361, as an action to compel an officer or agency to
perform a duty owed to plaintiffs.
28.

Jurisdiction also is proper under the Administrative Procedure Act, 5 U.S.C.

§§ 701-706. Defendants’ issuance of the Revised Rule on June 19, 2020, constitutes a final
agency action that is subject to judicial review under 5 U.S.C. §§ 702, 704, and 706.
29.

An actual controversy exists between the parties within the meaning of 28 U.S.C.

§ 2201(a), and this Court may grant declaratory, injunctive, and other relief pursuant to 28
U.S.C. §§ 2201-2202 and 5 U.S.C. §§ 705-706.
30.

Venue is proper in this district under 28 U.S.C. § 1391(b)(1), (b)(2), & (e)(1)

because at least one plaintiff resides in this judicial district, a substantial part of the events or
omissions giving rise to this action occurred in this district, and each defendant is an agency of
the United States or an officer of the United States sued in their official capacity.
PARTIES
A.

Plaintiffs

31.

Plaintiffs are two private health care facilities that provide health care services to

LGBTQ people and many individuals and families with LEP (Whitman-Walker Clinic, Inc. d/b/a
Whitman-Walker Health and the Los Angeles LGBT Center) (“private health care provider
plaintiffs”); two organizations that provide a wide range of services to the LGBTQ community,
including people and families with LEP (the TransLatin@ Coalition and Bradbury-Sullivan
LGBT Community Center) (“LGBTQ-services plaintiffs”); two national associations of health
professionals (American Association of Physicians for Human Rights d/b/a GLMA: Health
Professionals Advancing LGBTQ Equality and AGLP: The Association of LGBTQ
Psychiatrists) (“health professional association plaintiffs”); and three individual physicians and

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one behavioral health provider who work for the private health care provider plaintiffs
(“individual provider plaintiffs”).
32.

The private health care provider plaintiffs (Whitman-Walker Health and the Los

Angeles LGBT Center) and the individual provider plaintiffs assert claims on their own behalf
and also on behalf of their patients and recipients of services, who face barriers to asserting their
own claims and protecting their own interests.
33.

The LGBTQ-services plaintiffs (the TransLatin@ Coalition and the Bradbury-

Sullivan LGBT Community Center) assert claims on their own behalf and also on behalf of the
recipients of their services who face barriers to asserting their own claims and protecting their
own interests.
34.

The TransLatin@ Coalition also asserts claims on behalf of its transgender and

gender nonconforming members, including members who are leaders of affiliated community
organizations serving Latinx transgender and gender nonconforming people.
35.

The health professional association plaintiffs (GLMA and AGLP) assert claims on

their own behalf and on behalf of their members and also on behalf of the LGBTQ patients
whose interests they represent and the patients whom their members treat who face barriers to
asserting their own claims and protecting their own interests.
36.

Plaintiffs assert different but complementary interests and share the common

objective of maintaining an effective, functioning health care system that protects patients’
dignity and their rights to access health services. Plaintiffs also support providing informed
access to comprehensive, medically appropriate care to LGBTQ patients, including genderaffirming care for transgender persons, without discrimination based on a patient’s sex, gender

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identity, transgender status, or sexual orientation and in accordance with medical and ethical
standards of care.
37.

Plaintiff Whitman-Walker Clinic, Inc. d/b/a Whitman-Walker Health, a

Federally Qualified Health Center located in Washington, D.C., has a special mission to serve
the LGBTQ community and persons living with HIV of every sexual orientation and gender.
More than 280 medical, behavioral health and dental professionals, lawyers and paralegals,
support staff and administrators provide a range of services, including medical and community
health care, transgender care and services, behavioral-health services, dental-health services,
legal services, insurance-navigation services, and youth and family support. In 2019, WhitmanWalker provided health care services to 20,760 individuals. More than 10% of those individuals
identified as transgender or gender nonconforming. Almost 45% of health care patients – and
60% of those who provided information on their sexual orientation – identified as lesbian, gay,
bisexual, or otherwise non-heterosexual. More than 9% of patients had limited English
proficiency. Whitman-Walker receives various forms of federal funding from HHS and from
institutions affiliated with or funded by HHS, including but not limited to funds under the Public
Health Services Act (“PHSA”), direct grants, funding under the Ryan White Comprehensive
AIDS Resources Emergency Act of 1990, 42 U.S.C. § 300ff et seq. (“Ryan White funding”),
funds under the 340B Drug Discount Program, and research grants from the Centers for Disease
Control and Prevention and the National Institutes of Health, and Medicaid and Medicare
reimbursements. Whitman-Walker also receives funds from the Health Resources and Service
Administration (“HRSA”) and is a Federally Qualified Heath Center. In 2019, WhitmanWalker’s federally funded research contracts and grants totaled more than $7 million. WhitmanWalker is subject to Section 1557 of the ACA and the Revised Rule.

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38.

Plaintiff Dr. Sarah Henn is the Chief Health Officer of Whitman-Walker. Dr.

Henn oversees all health care-related services at Whitman-Walker and maintains a panel of
patients for whom she provides direct care. Whitman-Walker’s patient population, including
patients to whom Dr. Henn provides direct care and whose care she oversees, includes many
patients who have experienced refusals of health care or who have been subjected to disapproval,
disrespect, or hostility from medical providers outside of Whitman-Walker because of their
actual or perceived sexual orientation, gender identity, or transgender status. Many of Dr.
Henn’s patients and those whose care she oversees are, therefore, apprehensive or fearful of
encountering stigma and discrimination in health care settings because of their past experiences.
Such experiences will increase as a result of the Revised Rule. In addition to overseeing medical
care of patients and working with her own patients, Dr. Henn oversees Whitman-Walker’s
Research Department and is personally involved in a number of clinical research projects,
including as the Leader of Whitman-Walker’s Clinical Research Site for the AIDS Clinical
Trials Group funded by the National Institutes of Health.
39.

Plaintiff Dr. Randy Pumphrey is Senior Director of Behavioral Health at

Whitman-Walker. As Senior Director of Behavioral Health, Dr. Pumphrey oversees WhitmanWalker’s portfolio of mental-health services and substance-use-disorder-treatment services and
maintains a panel of patients for whom he provides direct behavioral health care. In 2019,
Whitman-Walker provided mental-health or substance-use-disorder-treatment services to more
than 1,800 patients, many of whom identify as LGBT or are living with HIV. Many, if not
most, of the patients to whom Dr. Pumphrey provides direct care and whose behavioral health
care he oversees face considerable stigma and discrimination as people living with HIV, sexual
or gender minorities, or people of color. They have experienced difficulty finding therapists or

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other mental-health or substance-use-disorder professionals who are understanding and
welcoming of their sexual orientation, gender identity, or transgender status. These experiences
of discrimination will increase as a result of the Revised Rule.
40.

Plaintiff The TransLatin@ Coalition is a nationwide 501(c)(3) nonprofit

membership organization that advocates for the interests of transgender and gender
nonconforming individuals, particularly Latinx people, and provides direct services to the
transgender community, including leadership development, educational services, and
employment services. The TransLatin@ Coalition currently has a presence in Los Angeles,
California; Washington, D.C.; Chicago, Illinois; New York, New York; Atlanta, Georgia;
Houston, Texas; and Tucson, Arizona. The TransLatin@ Coalition has thousands of individual
members across the United States, including transgender and gender nonconforming Latinx
individuals who have experienced or fear discrimination based on their sex, transgender status,
national origin, or LEP status in health care. This includes individual transgender and gender
nonconforming Latinx members like Bamby Salcedo, who resides in California, and Arianna
Lint, who resides in Florida. Ms. Salcedo and Ms. Lint have experienced discrimination in
health care because of their transgender status and fear the Revised Rule will make it more likely
they will encounter discrimination in health care again. The TransLatin@ Coalition’s
membership also includes leaders of affiliated community organizations that serve Latinx
transgender and gender nonconforming people across the country, such as Arianna’s Center
headquartered in Florida and with offices in Puerto Rico, Community Estrella in Georgia, and
the Fundación Latinoamericana de Accion Social (FLAS) in Texas. The Coalition and its
members advocate for policy changes at the local, state, and federal levels, and conducts research
regarding homelessness, health and health care, and employment in the transgender Latinx

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community. Through its Center for Violence Prevention & Transgender Wellness, the Coalition
also provides direct services to transgender, gender nonconforming, and intersex people in the
City of Los Angeles. Many of the members of the Coalition and the individuals they and the
Coalition serve are immigrants, some living with HIV/AIDS. The Coalition and its members
serve many communities in which English is not the primary language spoken and a number of
individuals in these communities are not fluent in English.
41.

Plaintiff Los Angeles LGBT Center is located in Los Angeles, California. Its

mission is to build a world in which LGBT people thrive as healthy, equal, and complete
members of society. The LA LGBT Center offers programs, services, and advocacy spanning
four broad categories: health, social services and housing, culture and education, and leadership
and advocacy. The LA LGBT Center has more than 750 employees and provides services to
more LGBT people than any other organization in the world, with about 500,000 client visits per
year, including LEP patients. LA LGBT Center receives funds under the PHSA. Approximately
80% of the LA LGBT Center’s funding originates from the federal government, including but
not limited to Ryan White funding; direct funding from the Centers for Disease Control and
Prevention; discounts under the 340B Drug Discount Program; grants under section 330 of the
PHSA; grants from HRSA’s Bureau of Primary Health Care under which the LA LGBT Center
is a Federally Qualified Health Center; and Medicaid and Medicare reimbursements. The LA
LGBT Center is an entity subject to Section 1557 of the ACA and the Revised Rule.
42.

Plaintiff Dr. Robert Bolan is the Chief Medical Officer of the LA LGBT Center.

He oversees the delivery of health care for over 20,000 patients who come to the LA LGBT
Center and personally treats approximately 300 patients. More than 90% of these patients
identify as LGBT, many of them coming from different areas of California and other States to

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obtain services in a safe and affirming environment. Dr. Bolan also oversees the LA LGBT
Center’s Research Department. Dr. Bolan and the providers he supervises treat patients who
identify as transgender and who require gender-affirming treatment, including medically
necessary health care for gender dysphoria. Many of Dr. Bolan’s patients and many of the
patients of the providers he supervises at the LA LGBT Center already have experienced
traumatic and discriminatory denials of health care based on their sexual orientation, gender
identity, transgender status, or HIV status at the hands of providers outside the LA LGBT Center,
including by health care providers who have expressed religious or moral objections to treating
them. These experiences will increase as a result of the Revised Rule.
43.

Plaintiff Dr. Ward Carpenter is the Co-Director of Health Services at the LA

LGBT Center. Dr. Carpenter is a nationally recognized expert in the field of transgender
medicine. In his role as Co-Director of Health Services, Dr. Carpenter oversees the healthcare of
more than 25,000 patients who come to the LA LGBT Center and personally treats 150 patients.
All of Dr. Carpenter’s patients identify within the LGBT community and approximately 30% are
people living with HIV. These patients come from different areas of California and other States
to obtain services in a safe and affirming environment. Dr. Carpenter’s patient population is
disproportionately low-income and experiences high rates of chronic medical conditions,
homelessness, unstable housing, and extensive trauma history. In addition, many of Dr.
Carpenter’s patients, as well as the patients of the other medical providers he supervises at the
Center, already have experienced traumatic and discriminatory denials of healthcare based on
their sexual orientation, gender identity, transgender status, or HIV status at the hands of
providers outside the LA LGBT Center, including by healthcare providers who have expressed

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religious or moral objections to treating them. These experiences will increase as a result of the
Revised Rule.
44.

Plaintiff Bradbury-Sullivan LGBT Community Center is a 501(c)(3) nonprofit

organization based in Allentown, Pennsylvania, and incorporated in Pennsylvania. It is
dedicated to securing the health and well-being of LGBTQ people of the Greater Lehigh Valley.
It provides a variety of programs and services for the LGBTQ community, including HIV/STI
testing, health care-enrollment events, health promotion programs for LGBTQ adults and youth,
support groups, and a free legal clinic. Bradbury-Sullivan Center also provides referrals to
LGBT-welcoming health care providers. Patrons of Bradbury-Sullivan Center often seek health
care services from other health care organizations, including religiously affiliated organizations.
Bradbury-Sullivan Center works with patrons who have experienced discriminatory treatment
when seeking health care services from such organizations, and it advocates on behalf of those
patrons by providing referrals to LGBT-welcoming agencies and providers, training agencies to
provide LGBT-welcoming services, and, when necessary, communicating with agencies to
inform them of their legal obligations to serve LGBT people. Bradbury-Sullivan Center also
conducts research documenting health disparities in the LGBT community and performs related
community-education efforts to improve public health within the LGBT community. BradburySullivan Center receives pass-through funding from HHS through the Assistance Programs for
Chronic Disease Prevention and Control, State Public Health Approaches to Ensuring Quitline
Capacity funded in part by Prevention and Public Health Fund, State Physical Activity and
Nutrition, Injury Prevention and Control Research and State and Community Based Programs,
National State-Based Tobacco Control Programs, Maternal and Child Health Services Block
Grant, and in the past also has received Ryan White funding.

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45.

Plaintiff American Association of Physicians For Human Rights, Inc. d/b/a

GLMA: Health Professionals Advancing LGBTQ Equality (formerly known as the Gay &
Lesbian Medical Association) is a 501(c)(3) nonprofit membership organization based in
Washington, D.C. and incorporated in California. GLMA is a national organization committed
to ensuring health equity for lesbian, gay, bisexual, transgender, queer, and all sexual and gender
minority individuals, and equality for health professionals in such communities in their work and
learning environments. To achieve this mission, GLMA utilizes the scientific expertise of its
diverse multidisciplinary membership to inform and drive advocacy, education, and research.
GLMA works with professional accreditation bodies and health professional associations on
standards, guidelines, and policies that address LGBTQ health and protect individual patient
health and public health in general. GLMA also represents the interests of hundreds of
thousands of LGBTQ health professionals and millions of LGBTQ patients and families across
the United States. GLMA’s membership includes approximately 1,000 member physicians,
nurses, advanced practice nurses, physician assistants, researchers and academics, behavioral
health specialists, health-profession students, and other health professionals throughout the
country. Their practices represent the major health care disciplines and a wide range of health
specialties, including primary care, internal medicine, family practice, psychiatry, pediatrics,
obstetrics/gynecology, emergency medicine, neurology, and infectious diseases.
46.

Plaintiff AGLP: The Association of LGBTQ Psychiatrists is a 501(c)(3)

nonprofit membership organization based in Philadelphia, Pennsylvania. AGLP is a national
organization of 450 LGBTQ+ psychiatrists that educates and advocates on LGBTQ mentalhealth issues. It is the oldest association of LGBTQ+ professionals in the country. AGLP
represents the interests of its members, LGBTQ+ patients, and the patients whom AGLP

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members treat in working to influence policies relevant to the LGBTQ+ community and
advocating for its members’ patients. AGLP’s goals are to foster a fuller understanding of
LGBTQ+ mental-health issues; research and advocate for the best mental healthcare for the
LGBTQ community; develop resources to promote LGBTQ mental health; create a welcoming,
safe, nurturing, and accepting environment for members; and provide valuable and accessible
services to our members. AGLP also assists medical students and residents in their professional
development; encourages and facilitates the presentation of programs and publications relevant
to LGBTQ concerns at professional meetings; and serves as liaison with other minority and
advocacy groups within the psychiatric community. Some of the institutions in which AGLP’s
members work receive various forms of federal funding directly or indirectly via federal
programs. AGLP’s members therefore are subject to Section 1557 of the ACA and the Revised
Rule.
B.

Defendants

47.

Defendant United States Department of Health and Human Services is a

cabinet department of the federal government, headquartered in the District of Columbia. HHS
promulgated the Revised Rule and is responsible for its enforcement. HHS is an “agency”
within the meaning of the APA. 5 U.S.C. § 551(1).
48.

Defendant Alex M. Azar, II is the Secretary of HHS. He is sued in his official

capacity. Secretary Azar is responsible for all aspects of the operation and management of HHS,
including the adoption, administration, and enforcement of the Revised Rule, and with
implementing and fulfilling HHS’s duties under the United States Constitution and the APA.
49.

Defendant Roger Severino is the Director of the Office of Civil Rights (“OCR”)

at HHS. He is sued in his official capacity. Director Severino is responsible for all aspects of
the operation and management of OCR, including the adoption, administration, and enforcement
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of the Revised Rule. As an HHS law enforcement agency, OCR is supposed to ensure equal
access to health and human services by enforcing civil rights laws such as Section 1557.
50.

Defendant Seema Verma is the Administrator for the Centers for Medicare and

Medicaid Services (“CMS”), a component of HHS. She is sued in her official capacity.
Administrator Verma is responsible for all aspects of the operation and management of CMS,
including the adoption, administration, and enforcement of the Revised Rule as it pertains to
regulations relating to the establishment and operation of ACA exchanges; in the marketing and
design practices of health insurance issuers under the ACA; in the administration, marketing, and
enrollment practices of Qualified Health Plans (“QHPs”) under the ACA; in beneficiary
enrollment and the promotion and delivery of services under Medicaid; and in the delivery of
services under the Programs for All-Inclusive Care for the Elderly (“PACE”).
FACTUAL ALLEGATIONS
I.

Discrimination Against Transgender People Prior to the Affordable Care Act
51.

Before the Affordable Care Act was enacted in 2010 during the Obama

Administration, HHS documented many forms of discrimination against transgender people in
accessing health care services, insurance coverage, and facilities.
52.

The administrative record documents and demonstrates that, prior to the

enactment of the ACA, transgender people experienced significant discrimination from entities
providing health care, even for routine medical care. HHS reported that “[f]or transgender
individuals, a major barrier to receiving care is a concern over being refused medical treatment
based on bias against them.” 81 Fed. Reg. 31,376, 31,460. For example, “[i]n a 2010 report,
26.7% of transgender respondents reported that they were refused needed health care. A 2011
survey revealed that 25% of transgender individuals reported being subject to harassment in
medical settings.” Id.
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53.

Some entities providing insurance or health care discriminated against

transgender patients by refusing to cover medically necessary treatments for gender dysphoria in
accordance with accepted standards of care. Gender dysphoria is a serious medical condition
codified in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) and
International Classification of Diseases (ICD-11). The criteria for diagnosing gender dysphoria
are set forth in the DSM-V (302.85). The World Professional Association for Transgender
Health (“WPATH”) publishes widely accepted standards of care for treating gender dysphoria.
Leading medical organizations and federal courts have recognized the WPATH Standards of
Care as the authoritative standards of care. The overwhelming consensus among medical experts
and every major medical organization is that treatments for gender dysphoria, including surgical
procedures, are effective, safe, and medically necessary when clinically indicated to alleviate
gender dysphoria.
54.

Prior to the enactment of the ACA, however, insurance companies routinely

excluded coverage for transition-related care based on the misguided assumption that such
treatments were cosmetic and experimental. Today, medical consensus recognizes that such
exclusions have no basis in medical science.6
55.

Those discriminatory exclusions prevented transgender people from obtaining

medically necessary treatment for gender dysphoria. See 81 Fed. Reg. at 31,460. As a result,
transgender people were more likely to lack health insurance and suffer significant health
disparities, including high rates of untreated mental health needs, suicide attempts, and HIV. Id.

6

See Decision No. 2576, National Coverage Determination 140.3: Transsexual Surgery at 18
(Docket No. A-13-87) (U.S. Dep’t of Health & Human Servs. Appeals Bd. App. Div. 2014),
https://perma.cc/3BGA-F9DH.
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II.

Section 1557 of the Affordable Care Act
56.

On March 23, 2010, Congress enacted the Patient Protection and Affordable Care

Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), recognizing the importance of
providing patients with prompt and nondiscriminatory access to medical care and to information
about all treatment options.
57.

Section 1554 of the ACA provides:
Notwithstanding any other provision of this Act, the Secretary of
Health and Human Services shall not promulgate any regulation
that—
(1) creates any unreasonable barriers to the ability of
individuals to obtain appropriate medical care;
(2) impedes timely access to healthcare services;
(3) interferes with communications regarding a full range of
treatment options between the patient and the provider;
(4) restricts the ability of healthcare providers to provide full
disclosure of all relevant information to patients making
healthcare decisions;
(5) violates the principles of informed consent and the
ethical standards of healthcare professionals; or
(6) limits the availability of healthcare treatment for the full
duration of a patient’s medical needs.

42 U.S.C. § 18114.
58.

Section 1557 of the ACA protects against discrimination in the provision of health

care services. It provides, in relevant part:
Except as otherwise provided for in this title [I] (or an amendment
made by this title), an individual shall not, on the ground prohibited
under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et
seq.), title IX of the Education Amendments of 1972 (20 U.S.C.
1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101
et seq.), or section 794 of Title 29 [Section 504 of the Rehabilitation
Act of 1973], be excluded from participation in, be denied the
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benefits of, or be subjected to discrimination under, any health
program or activity, any part of which is receiving Federal financial
assistance, including credits, subsidies, or contracts of insurance, or
under any program or activity that is administered by an Executive
Agency or any entity established under this title [I] (or
amendments). The enforcement mechanisms provided for and
available under such title VI, title IX, section 794, or such Age
Discrimination Act shall apply for purposes of violations of this
subsection.
42 U.S.C. § 18116(a).
59.

Section 1557 prohibits discrimination based on sex, including discrimination

based on a patient’s gender identity, transgender status, sexual orientation, and failure to conform
to sex stereotypes, all of which are forms of sex discrimination. It also prohibits discrimination
on the basis of race, color, national origin, age, and disability.
60.

Section 1557 provides that “[t]he enforcement mechanisms provided for and

available under such title VI, title IX, section 794, or such Age Discrimination Act shall apply
for purposes of violations of this subsection.” Id. § 18116(a).
61.

Section 1557 further provides that the Secretary of HHS “may promulgate

regulations to implement this section.” Id. § 18116(c).
62.
III.

The ACA covers nearly every health care provider in the country.

The 2016 Final Rule
63.

On May 18, 2016, HHS published a final rule implementing Section 1557. See

Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376 (May 18, 2016)
(formerly codified at 45 C.F.R. pt. 92) (the “2016 Final Rule”). A copy of the 2016 Final Rule is
attached as Exhibit 1.
64.

In implementing Section 1557’s prohibition of discrimination “on the basis of . . .

sex,” the 2016 Final Rule defined “on the basis of sex” to include “discrimination on the basis of

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. . . sex stereotyping, and gender identity.” 81 Fed. Reg. at 31,467 (formerly codified at 45
C.F.R. § 92.4).7
65.

The 2016 Final Rule defined “gender identity” as “an individual’s internal sense

of gender, which may be male, female, neither, or a combination of male and female, and which
may be different from an individual’s sex assigned at birth.” Id. In the 2016 Final Rule, HHS
emphasized that “even where it is permissible to make sex-based distinctions, individuals may
not be excluded from health programs and activities for which they are otherwise eligible based
on their gender identity.” 81 Fed. Reg. at 31,409.
66.

The 2016 Final Rule defined “sex stereotypes” as
stereotypical notions of masculinity or femininity, including
expectations of how individuals represent or communicate their
gender to others, such as behavior, clothing, hairstyles, activities,
voice, mannerisms, or body characteristics. These stereotypes can
include the expectation that individuals will consistently identify
with only one gender and that they will act in conformity with the
gender-related expressions stereotypically associated with that
gender. Sex stereotypes also include gendered expectations related
to the appropriate roles of a certain sex.

81 Fed. Reg. at 31,468 (formerly codified at 45 C.F.R. § 92.4).
67.

In defining “on the basis of sex” to include “discrimination on the basis of . . . sex

stereotyping, and gender identity,” HHS explained that “courts, including in the context of
Section 1557, have recognized that sex discrimination includes discrimination based on gender

7

Although OCR stated in 2016 “that current law is mixed on whether existing Federal
nondiscrimination laws prohibit discrimination on the basis of sexual orientation as a part of their
prohibitions on sex discrimination,” 81 Fed. Reg. at 31388, the Supreme Court now has
definitively answered this question by holding in Bostock that “it is impossible to discriminate
against a person for being homosexual or transgender without discriminating against that
individual based on sex.” 2020 WL 3146686, at *7.
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identity. Thus, we proposed to adopt formally this well-accepted interpretation of discrimination
‘on the basis of sex.’” 81 Fed. Reg. at 31,387-88.
68.

The 2016 Final Rule also prohibited discrimination based on association – that is,

it prohibited discrimination against a person on the basis of the sex, race, color, national origin,
age, or disability of “an individual with whom the individual or entity is known or believed to
have a relationship or association.” 81 Fed. Reg. at 31,472 (formerly codified at 92 C.F.R.
§ 209). HHS explained that a “prohibition on associational discrimination is consistent with
longstanding interpretations of existing antidiscrimination laws, whether the basis of
discrimination is a characteristic of the harmed individual or an individual who is associated with
the harmed individual.” 81 Fed. Reg. at 31,439. It also is consistent with the Age
Discrimination Act, which includes a specific prohibition of discrimination based on association
with an individual with a disability. Id.; see also 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R.
§ 35.130(g).
69.

The 2016 Final Rule also recognized that Section 1557 not only prohibits

intentional discrimination on the basis of sex, it also prohibits conduct and practices “that have
the effect of subjecting individuals to discrimination on the basis of sex,” which can give rise to
disparate impact claims. 81 Fed. Reg. at 31,470 (formerly codified at 45 C.F.R.
§ 92.101(b)(3)(ii)) (emphasis added).
70.

The 2016 Final Rule applied to “every health program or activity, any part of

which receives Federal financial assistance provided or made available by the Department; every
health program or activity administered by the Department; and every health program or activity
administered by a Title I entity.” 81 Fed. Reg. at 31,466 (formerly codified at 45 C.F.R.

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§ 92.2(a)). HHS estimated that the rule would “likely cover almost all licensed physicians
because they accept Federal financial assistance.” 81 Fed. Reg. at 31,445.
71.

With respect to health care insurance providers or employee benefits plans, the

2016 Final Rule specifically required covered entities to treat individuals consistent with their
gender identity. See 81 Fed. Reg. at 31,471 (formerly codified at 45 C.F.R. § 92.206). And it
prohibited covered entities from having or implementing “a categorical coverage exclusion or
limitation for all health care services related to gender transition,” 81 Fed. Reg. at 31,472
(formerly codified at 45 C.F.R. § 92.207(b)(4)), because such an exclusion is “discriminatory on
its face,” 81 Fed. Reg. at 31,456. In adopting these provisions, HHS explained that blanket
“exclusions of coverage for all care related to gender dysphoria or associated with gender
transition” were “outdated and not based on current standards of care.” 81 Fed. Reg. at 31,429.
72.

The “range of transition-related services” the 2016 Final Rule contemplated were

“not limited to surgical treatments and may include, but [were] not limited to, services such as
hormone therapy and psychotherapy, which may occur over the lifetime of the individual.” 81
Fed. Reg. at 31,435-36.
73.

Consistent with the plain language of Section 1557, which provides that the

“enforcement mechanisms provided for and available under such title VI, title IX, section 794, or
such Age Discrimination Act shall apply for purposes of violations” of Section 1557, 42 U.S.C.
§ 18116(a) (emphasis added), the 2016 Final Rule adopted a unitary legal standard for
addressing discrimination in health care and enforcing Section 1157. The 2016 Final Rule
provided: “The enforcement mechanisms available for and provided under Title VI of the Civil
Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the
Rehabilitation Act of 1973, or the Age Discrimination Act of 1975 shall apply for purposes of

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Section 1557 as implemented by this part.” 81 Fed. Reg. at 31,472 (formerly codified at 45
C.F.R. § 92.301) (emphasis added).
74.

In the preamble to the 2016 Final Rule, HHS clarified that all enforcement

mechanisms available under the statutes listed in Section 1557 are available for purposes of
Section 1557 enforcement, regardless of an individual’s protected characteristic or
characteristics. Otherwise, different enforcement mechanisms and standards would apply
depending on whether an individual’s claim is based on her sex, race, age, or disability. 81 Fed.
Reg. at 31,439-40. HHS thus interpreted Section 1557 as “authorizing a private right of action
for claims of disparate impact discrimination on the basis of any of the criteria enumerated in the
legislation.” Id. at 31,440.
75.

The 2016 Final Rule also specifically recognized that a private right of action is

available under Section 1557 and compensatory damages are available. See 81 Fed. Reg. at
31,472 (formerly codified at 45 C.F.R. §§ 92.301(b), 92.302(d)). HHS explained that its
“interpretation of Section 1557 as authorizing compensatory damages is consistent with our
interpretations of Title VI, Section 504, and Title IX.” 81 Fed. Reg. at 31,440.
76.

The 2016 Final Rule did not incorporate Title IX’s blanket religious exemption

because Section 1557 “contains no religious exemption.” 81 Fed. Reg. at 31,380. In declining
to import Title IX’s religious exemption, HHS further explained that “Title IX and its exemption
are limited in scope to educational institutions, and there are significant differences between the
educational and health care contexts that warrant different approaches.” Id. HHS noted that “a
blanket religious exemption could result in a denial or delay in the provision of health care to
individuals and in discouraging individuals from seeking necessary care, with serious and, in
some cases, life threatening results.” Id.

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77.

After a careful and deliberate analysis, HHS determined that a “more nuanced

approach in the health care context” was warranted. Id. The 2016 Final Rule provided: “Insofar
as the application of any requirement under this part would violate applicable Federal statutory
protections for religious freedom and conscience, such application shall not be required.” 81
Fed. Reg. at 31,466 (formerly codified at 45 C.F.R. § 92.2(b)(2)).
78.

The 2016 Final Rule also included provisions to ensure that the approximately 25

million Americans who are Limited English Proficient (LEP)8 have access to the health care they
need. The 2016 Final Rule required health care providers and other covered entities to post
nondiscrimination notices and include taglines in the top 15 languages spoken throughout the
state with all significant publications and communications. See 81 Fed. Reg. at 31,469 (formerly
codified at 45 C.F.R. § 92.8).
79.

The 2016 Final Rule also included standards that governed access to language

assistance services for LEP individuals by requiring that language interpreters be “qualified” and
that when covered entities video interpretation services to LEP individuals, it be real-time and
high quality. See 81 Fed. Reg. at 31,470-71 (formerly codified at 45 C.F.R. § 92.201).
80.

The promulgation of the 2016 Final Rule led to a decrease in discriminatory

policies and practices.9 For example, a recent study of 37 states in the federal marketplace

8

U.S. Census Bureau, Language Spoken at Home, American Community Survey 2018 1-Year
Estimates Subject Tables, tbl. S1601 (2018), https://perma.cc/Z452-RSWR; U.S. Census Bureau,
Characteristics of People by Language Spoken at Home, American Community Survey 2018 1Year Estimates Subject Tables, tbl. S1603, https://perma.cc/R59J-HG4K.

9

See Gruberg & Bewkes, The ACA’s LGBTQ Nondiscrimination Regulations Prove Crucial,
https://perma.cc/CTP2-UMEJ.

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showed that, in 2019, 97% of plans did not contain blanket exclusions of transition-related
care.10
IV.

The Trump Administration’s Proposed Revision to the 2016 Final Rule
81.

On June 14, 2019, the Trump Administration issued a Notice of Proposed

Rulemaking, proposing to “make substantial revisions” to the 2016 Final Rule, including
repealing certain provisions. See Notice of Proposed Rulemaking, Nondiscrimination in Health
and Health Education Programs or Activities, 84 Fed. Reg. 27,846, 27,848 (June 14, 2019)
(“Proposed Rule”).
82.

In an attempt to explain why it was reversing course merely three years after the

2016 Final Rule went into effect, HHS stated it was revising the implementing regulations “to
better comply with the mandates of Congress, address legal concerns, relieve billions of dollars
in undue regulatory burdens, further substantive compliance, reduce confusion, and clarify the
scope of Section 1557 in keeping with existing civil rights statutes and regulations prohibiting
discrimination on the basis of race, color, national origin, sex, age, and disability.” 84 Fed. Reg.
at 27,846.
83.

HHS further claimed that the 2016 Final Rule “exceeded its authority under

Section 1557, adopted erroneous and inconsistent interpretations of civil rights law, caused
confusion, and imposed unjustified and unnecessary costs.” Id. at 27,849.
84.

These purported justifications do not withstand scrutiny.

85.

HHS received nearly 200,000 comments during the public comment period. The

comments that HHS received identified and expressed concerns about many of HHS’s proposed

10

Out2Enroll, Summary of Findings: 2020 Marketplace Plan Compliance with Section 1557,
https://perma.cc/WU25-C9BN. This finding is consistent with summaries from 2017, 2018, and
2019.

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revisions, including many of the same issues that form the basis of this complaint. Commenters
emphasized that the following actions, taken individually or combined, will cause immediate and
irreparable harm to LGBTQ people and their families:
a.

Eliminating the definition of “on the basis of sex” and the specific
prohibition on discrimination on the basis of gender identity and sex
stereotyping is arbitrary and capricious, not the result of reasoned
decision-making, contrary to law, and invites covered health care
providers and insurers to discriminate against transgender people;

b.

Eliminating a unitary legal standard for enforcing violations of Section
1557 and replacing it with a fractured and complex set of procedures is
contrary to the plain language of Section 1557 and Congress’s intent, and
will complicate and make it more difficult to bring discrimination claims,
particularly claims of intersectional discrimination;

c.

Incorporating sweeping religious exemptions is contrary to the statutory
language of Section 1557 and will create significant burdens on patients
and providers;

d.

Eliminating notice requirements and critical language access provisions
that ensure LEP individuals can access necessary health care is arbitrary
and capricious, contrary to statutory intent, and will make it more difficult
for LEP patients to understand their health care rights, communicate with
doctors and other health care workers, and navigate complex insurance
and medical documents with specialized terminology, and cause an
increase in patients who will delay or not seek care at all;

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e.

Excluding from Section 1557 health programs and activities that HHS
administers but are not established under Title I of the ACA and health
insurance plans outside of Title I of the ACA that do not receive Federal
financial assistance is inconsistent with Section 1557 and will cause
drastic reductions in protections for LGBTQ people;

f.

Eliminating gender identity and sexual orientation protections in unrelated
regulations is procedurally improper, arbitrary and capricious, and
contrary to law; and

g.

Eliminating protections relating to discrimination on the basis of
association is arbitrary and capricious and contrary to law.

V.

The Revised Rule
86.

Despite the significant concerns raised during the comment period, HHS

published the Revised Rule in the Federal Register on June 19, 2020, making only “minor and
primarily technical corrections.” See Nondiscrimination in Health and Health Education
Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160, 37,161 (June 19, 2020). A
copy of the Revised Rule is attached as Exhibit 2 and incorporated by reference.
87.

In adopting the Revised Rule, HHS failed to address adequately many of the

serious issues commenters raised, including concerns that the proposed elimination of the
definition of “on the basis of sex,” which the 2016 Final Rule defined to include gender identity
and sex stereotyping, would invite discrimination against LGBTQ people. See 85 Fed. Reg. at
37,165, 37,180.
88.

Relying essentially on one federal district court opinion—Franciscan Alliance,

Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016)—which the preamble cites more than 40
times, HHS takes the position that “the ordinary public meaning of the term ‘sex’ in Title IX is
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unambiguous” and refers to a “biological binary meaning of sex,” 85 Fed. Reg. at 37,178-80, and
discrimination on the basis of sex under Title IX does not encompass discrimination on the basis
of gender identity or sex stereotyping, 85 Fed. Reg. at 37,183-86.
89.

HHS explicitly rejected comments urging it to wait until the Supreme Court

decided Bostock and related cases because of the potential implications for the Revised Rule.
See 85 Fed. Reg. at 37,168. Despite acknowledging that “a holding by the U.S. Supreme Court
on the meaning of ‘on the basis of sex’ under Title VII will likely have ramifications for the
definition of ‘on the basis of sex’ under Title IX,” because “Title VII case law has often
informed Title IX case law with respect to the meaning of discrimination ‘on the basis of sex,’”
id., HHS stated it was sticking with the position the federal government had taken in Bostock and
related cases that “discrimination ‘on the basis of sex’ in Title VII and Title IX does not
encompass discrimination on the basis of sexual orientation or gender identity,” id.
90.

HHS further asserted that even if the Supreme Court determined that the

prohibition on sex discrimination in Title VII encompassed gender identity and sexual
orientation, such a ruling may not fully address the implications for the health care context. 85
Fed. Reg. at 37,168.
91.

Among other revisions, the Revised Rule:
a.

Repeals the definition of “on the basis of sex” and the specific prohibition
of discrimination on the basis of gender identity and sex stereotyping, see
85 Fed. Reg. at 37,161-62;

b.

Repeals the unitary legal standard for enforcing violations of Section 1557
and eliminates provisions recognizing a private right of action and
compensatory damages, see 85 Fed. Reg. at 37,162;

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c.

Incorporates sweeping religious exemptions, see id.;

d.

Repeals notice requirements and access to language provisions, see id.;

e.

Excludes from the scope of Section 1557 certain health programs and
activities and health insurance plans, see id.;

f.

Repeals gender identity and sexual orientation protections in unrelated
regulations, see id.; and

g.

Repeals provisions relating to discrimination on the basis of association,
see id.

92.

These changes are arbitrary and capricious, not the process of reasoned decision-

making, contrary to the statutory language and Congress’s intent, not in accordance with law, in
excess of HHS’s statutory authority, and unconstitutional.
VI.

HHS’s Repeal of the Definition of “On the Basis of Sex” and Protections Against
Discrimination on the Basis of Gender Identity and Sex Stereotyping Is Arbitrary
and Capricious and Contrary to Law
93.

Section 1557 prohibits sex discrimination. In line with that prohibition, the 2016

Final Rule included a definition of “on the basis of sex” that explicitly prohibited discrimination
on the basis of gender identity and sex stereotyping, among other grounds. See 81 Fed. Reg. at
31,467 (formerly codified at 45 C.F.R. § 92.4).
94.

The Revised Rule repeals entirely the 2016 Final Rule’s definition of

discrimination “on the basis of sex,” without providing a different definition. Although HHS’s
Notice of Proposed Rulemaking stated HHS was declining to define the term because “of the
likelihood that the Supreme Court will be addressing the issue in the near future,” 84 Fed. Reg. at
27,857, HHS did not wait for the Supreme Court to decide whether discrimination on the basis of
“sex” encompasses discrimination against LGBTQ people.

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95.

Instead, it staked its elimination of the definition of “on the basis of sex” on the

Franciscan Alliance decision and the government’s position in the Bostock litigation “that
discrimination ‘on the basis of sex’ in Title VII and Title IX does not encompass discrimination
on the basis of sexual orientation or gender identity.” 85 Fed. Reg. at 37,168.
96.

The Supreme Court now has conclusively rejected that position, holding “it is

impossible to discriminate against a person for being homosexual or transgender without
discriminating against that individual on the basis of sex.” Bostock, 2020 WL 3146686, at *7.
Bostock’s conclusion that discrimination “on the basis of sex” encompasses claims of
discrimination based on transgender status and sexual orientation affirms the validity of the
substantial body of case law that formed the basis of the 2016 Final Rule. See 81 Fed. Reg. at
31,387-90, 31,392.
97.

The Revised Rule’s repeal of the definition of “on the basis of sex” and

elimination of the protections for LGTBQ people against discrimination is contrary to law and
will invite health care insurers and providers to discriminate against LGBTQ people seeking
health care. It also introduces substantial confusion among health care providers and insurers
regarding their legal obligations and the right of the populations they serve to be free from
discrimination, particularly in light of the Supreme Court’s ruling in Bostock.
98.

The Revised Rule also eliminates the provisions in the 2016 Final Rule

specifically requiring covered entities to treat individuals consistent with their gender identity
and prohibiting covered entities from having or implementing “a categorical coverage exclusion
or limitation for all health care services related to gender transition.” Compare 81 Fed. Reg. at
31,471-72 (formerly codified at 45 C.F.R. §§ 92.101(b)(3)-(4)), with 85 Fed. Reg. at 37,187-88.

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99.

HHS claims this provision inappropriately interfered with the ethical and medical

judgment of health professionals. See 85 Fed. Reg. at 37,187-88. However, as the 2016 Final
Rule demonstrates, prohibiting the exclusion or denial of health programs or activities on the
basis of an individual’s LGBTQ status does not prevent medical providers from providing
appropriate medical advice.
100.

The Revised Rule also eliminates the provision in the 2016 Final Rule that

prohibited a covered entity from discriminating against an individual based on those with whom
they are known or believed to have a relationship or to be associated. Compare 81 Fed. Reg. at
31,472 (formerly codified at 45 C.F.R. § 92.209), with 85 Fed. Reg. at 37,199-200. The 2016
Final Rule grounded this provision on a thorough examination of existing case law. See 81 Fed.
Reg. at 31,438-39.
101.

Former Section 92.209 accurately reflected current law. HHS has provided no

good reason to eliminate it. Its decision to do so is arbitrary and capricious and contrary to the
law, in violation of the APA.
VII.

The Revised Rule’s Repeal of the Unitary Standard Is Arbitrary and Capricious
and Contrary to Law
102.

Section 1557 provides: “The enforcement mechanisms provided for and available

under such title VI, title IX, section 794, or such Age Discrimination Act shall apply for
purposes of violations of [Section 1557].” 42 U.S.C. § 18116(a) (emphasis added). Congress’s
use of the disjunctive “or” indicates that the enforcement mechanisms applicable under any of
the incorporated statutes are available to every claim of discrimination under Section 1557,
regardless of the particular type of discrimination.
103.

During the notice-and-comment period on the 2016 Final Rule, commenters

pointed to the plain language of Section 1557 and asked HHS to “clarify that all enforcement

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mechanisms available under the statutes listed in Section 1557 are available to each Section 1557
plaintiff, regardless of the plaintiff’s protected class. Thus, for example, an individual could
bring a race claim under the Age Act procedure and an age claim under the Title VI procedure.”
81 Fed. Reg. at 31,439.
104.

As commenters emphasized, by enacting Section 1557, Congress intended to

create a new health-specific, anti-discrimination cause of action subject to a singular standard
regardless of a person’s protected characteristic. Otherwise, different enforcement mechanisms
and standards would apply depending on whether an individual’s claim is based on their sex,
race, national origin, age, or disability, in which case a person who faces intersectional
discrimination – that is, discrimination based on more than one ground – would have different
remedies and enforcement mechanisms for the same conduct under the same law. Id. at 31,43940.
105.

In response, HHS stated: “OCR interprets Section 1557 as authorizing a private

right of action for claims of disparate impact on the basis of any of the criteria enumerated in the
legislation.” Id. at 31,440.
106.

The 2016 Final Rule specified, consistent with this interpretation, that Section

1557 not only prohibits intentional discrimination on the basis of sex, but also conduct and
practices “that have the effect of subjecting individuals to discrimination on the basis of sex” –
conduct that can give rise to disparate impact claims based on sex. 81 Fed. Reg. at 31,470
(formerly codified at 45 C.F.R. § 92.101(b)(3)(ii)) (emphasis added).
107.

The 2016 Final Rule implemented Section 1557’s directives regarding

enforcement by promulgating 45 C.F.R. § 92.301, which provided: “The enforcement
mechanisms available for and provided under Title VI of the Civil Rights Act of 1964, Title IX

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of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, or the
Age Discrimination Act of 1975 shall apply for purposes of Section 1557 as interpreted by this
part.” 81 Fed. Reg. at 31,472 (formerly codified at 45 C.F.R. § 92.301(a)) (emphasis added).
108.

In addition, the 2016 Final Rule specified that a private right of action is available

under Section 1557 and compensatory damages are available. See 81 Fed. Reg. at 31,472
(formerly codified at 45 C.F.R. §§ 92.301(b), 92.302(d)). HHS explained that its “interpretation
of Section 1557 as authorizing compensatory damages is consistent with our interpretations of
Title VI, Section 504, and Title IX.” 81 Fed. Reg. at 31,440.
109.

Under these regulations, individuals bringing claims of intersectional

discrimination, i.e., discrimination based on multiple characteristics, would not need to litigate
their claims under different standards and different enforcement mechanisms.
110.

The Revised Rule, however, without reasoned explanation, rejects the 2016 Final

Rule’s establishment of a unitary legal standard and enforcement mechanism under Section
1557, limiting the remedies available from claims of discrimination based on a characteristic
listed in Section 1557 to only those remedies available under the statute from which the
characteristic was incorporated. HHS acknowledged commenters raised concerns about
intersectional discrimination but brushed them aside by noting that OCR accepts complaints that
allege discrimination based on more than one protected status. 85 Fed. Reg. at 37,199-200.
111.

HHS claims the 2016 Final Rule applied the enforcement mechanisms in existing

statutes “in a confusing and inconsistent manner,” 85 Fed. Reg. at 37,202, and resulted in “a new
patchwork regulatory framework unique to Section 1557 covered entities,” 85 Fed. Reg. at
37,162.

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112.

The 2016 Final Rule accomplished precisely the opposite. It established a

consistent, unitary legal standard and enforcement mechanism as Section 1557 contemplates. It
is HHS’s arbitrary and capricious elimination of a unitary standard that creates a confusing and
patchwork approach, applying different remedies and enforcement mechanisms to discriminatory
conduct that arises under a single statute – Section 1557.
113.

The Revised Rule also eliminates, without providing a reasoned explanation, the

provisions in the 2016 Final Rule expressly recognizing a private right of action to “challenge a
violation of Section 1557 or this part.” Compare 81 Fed. Reg. at 31,472 (formerly codified 45
C.F.R. § 92.302(d)), with 85 Fed. Reg. at 37,203.
114.

HHS eliminated the private right of action provision even though the existence of

such a right is clear from the statutory language of Section 1557, which explicitly references and
incorporates the “enforcement mechanisms” of four civil rights laws, all of which have a private
right action, and even though every court that has ruled on the question has held that the statutory
language of Section 1557 confers a private right of action.
115.

The Revised Rule also eliminates, without providing a reasoned explanation,

§ 92.301(b) of the 2016 Final Rule that recognized “[c]ompensatory damages for violations of
Section 1557 are available in appropriate administrative and judicial actions brought under this
rule.” 81 Fed. Reg. at 31,472 (formerly codified 45 C.F.R. § 301(b)). The only justification
HHS offers is that “the Department has concluded that its enforcement of Section 1557 should
conform to the Department of Justice’s Title VI Manual,” which states that “under applicable
Federal case law, compensatory damages are generally unavailable for claims based solely on a
Federal agency’s disparate impact regulations.” 85 Fed. Reg. at 37,202.

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116.

HHS ignores entirely its own statement in the preamble to the 2016 Final Rule

that its interpretation of Section 1557 as authorizing compensatory damages was consistent with
HHS’s “interpretations of Title VI, Section 504, and Title IX,” as providing for compensatory
damages. See 81 Fed. Reg. at 31,440. HHS’s elimination of the provision recognizing the
availability of compensatory damages also is inconsistent with controlling U.S. Supreme Court
decisions holding that damages are available under these civil rights statutes.
117.

HHS’s unreasonable interpretation of Section 1557 is arbitrary, capricious, and

contrary to law in that it fails to follow the statutory language of Section 1557 and apply each of
the “enforcement mechanisms” available under each of the civil rights statutes incorporated into
Section 1557 to every claim of discrimination arising under Section 1557 regardless of the basis.
HHS’s arbitrary and capricious elimination of provisions recognizing a private right of action
under Section 1557 and the availability of compensatory damages likewise is contrary to the
plain language of the statute and the law.
118.

Although HHS cannot change the law, its fracturing of the consolidated

procedures established in the 2016 Final Rule undermines Congress’s intent to create a new,
health-specific anti-discrimination cause of action and will make it more difficult to bring
discrimination claims under Section 1557. HHS’s elimination of the private right of action and
compensatory damages provisions also will confuse the public and mislead some persons into
not asserting their legal rights.
VIII. The Revised Rule’s Incorporation of Sweeping Religious Exemptions Conflicts with
the Statutory Language of Section 1557 and Is Inappropriate in the Health Care
Context
119.

The 2016 Final Rule included a provision stating that covered entities do not have

to comply with Section 1557 if doing so would violate applicable federal statutory protections

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for religious conscience and freedom. See 81 Fed. Reg. at 31,466 (formerly codified at 45
C.F.R. § 92.2(b)(2)).
120.

HHS considered incorporating Title IX’s blanket religious exemptions into

Section 1557, but after careful consideration and deliberation, HHS declined to do so in the 2016
Final Rule. 81 Fed. Reg. at 31,379-80. Title IX’s religious exemption by its terms applies only
to educational institutions and programs, not health care providers or health plans. It protects
religiously-controlled educational institutions and programs from requirements that violate their
religious tenets. See 20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12. For example, religious schools
that believe only men can be priests, rabbis, or ministers are not required to admit women to
training programs for the priesthood, rabbinate, or ministry.
121.

In declining to import Title IX’s blanket religious exemption into Section 1557,

HHS explained that Section 1557, unlike Title IX, does not include a religious exemption. It
further explained that Title IX’s blanket exemption would be inappropriate in the health care
setting because it is framed for educational institutions, which are very different from health care
settings, and those differences “warrant different approaches.” 81 Fed. Reg. at 31,380.
122.

HHS noted that, unlike the educational context where individuals may select a

religious educational institution by choice, in the health care context, individuals may have
limited or no choice of providers. Id. In addition, “a blanket religious exemption could result in
a denial or delay in the provision of health care to individuals and in discouraging individuals
from seeking necessary care, with serious and, in some cases, life threatening results.” Id.
123.

HHS determined that a “more nuanced approach in the health care context” was

warranted. Id. As a result, the 2016 Final Rule provided: “Insofar as the application of any
requirement under this part would violate applicable Federal statutory protections for religious

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freedom and conscience, such application shall not be required.” 81 Fed. Reg. at 31,466
(formerly codified at 45 C.F.R. § 92.2(b)(2)).
124.

The Revised Rule upends this nuanced and carefully considered approach by

explicitly identifying and incorporating sweeping religious exemptions from a number of
different statutes. Not only does the Revised Rule incorporate the Title IX religious exemptions,
it also incorporates “definitions, exemptions, affirmative rights, or protections” from unrelated
statutes. 85 Fed. Reg. at 37,245 (to be codified at 45 C.F.R. § 92.6(b)).
125.

The inclusion of sweeping religious exemptions in Section 1557 is contrary to the

statutory language of Section 1557, which by its terms does not incorporate any exemptions from
Title IX or any other statute. Section 1557 expressly incorporates the enforcement mechanisms
from four civil rights statutes, but pointedly does not incorporate the religious exemptions from
Title IX or any other statute.
126.

Religiously affiliated hospitals and health care systems occupy a large and

growing percentage of health care markets. The Revised Rule’s sweeping religious exemptions
to Section 1557’s prohibitions on discrimination will invite these institutions to allow their
religious beliefs to determine patient care, contrary to medical standards and the health of an
increasing number of individuals.
127.

The Revised Rule also invites individual health care providers to deny care to

LGBTQ patients on the basis of their individual religious beliefs. It prioritizes the protection of
individual conscience and religious freedom rights over ensuring that LGBTQ people receive the
health care to which they are entitled. See 85 Fed. Reg. at 37,206.
128.

The Revised Rule’s religious exemptions disproportionately harm LGBTQ

people, who often are refused health care because of their sexual orientation or gender identity.

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According to a 2018 study, 8% of LGBTQ people were refused health care because of their
sexual orientation, and 29% of transgender people were denied care because of their gender
identity.11
129.

When LGBTQ people are denied care, it becomes difficult and sometimes

impossible to find another provider, especially for those who live in rural areas and for
transgender people. In one recent study, 18% of LGBTQ people said it would be very difficult if
not impossible to find the same type of service in another hospital. Outside of a metropolitan
area, 41% of respondents stated that, if they were denied treatment, it would be very difficult if
not impossible to find the same service at a different location.12
130.

These religious exemptions also will frustrate the ability of organizations who

provide health care to LGBTQ patients to accomplish their missions. Individual health care
providers employed by these organizations may choose to deny care to LGBTQ patients,
claiming that doing so would violate their religious beliefs. This denial of care would harm the
ability of these organizations to treat their patients effectively. These exemptions also would
impair the ability of these organizations to refer their LGBTQ patients to other health care
providers because they would be unsure whether these providers would invoke these exemptions
to deny care to LGBTQ patients.

11

Shabab Ahmed Mirza & Caitlin Rooney, Discrimination Prevents LGBTQ People From
Accessing Health Care, Center for American Progress (Jan. 18, 2018), https://perma.cc/ZG7E7WK8.
12

Id.
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IX.

The Revised Rule’s Elimination of Notices of Nondiscrimination Rights and
Language Access Provisions Is Arbitrary and Capricious and Contrary to Statutory
Intent
131.

More than 25 million Americans are of LEP, meaning they speak, read, or write

English less than “very well.”13 An estimated 6.5 million LEP adults are uninsured.14
132.

The 2016 Final Rule contained a number of provisions to ensure that LEP patients

understand their rights and are able to communicate fully and effectively with their providers and
other health care staff. The 2016 Final Rule required covered entities to provide notice of
nondiscrimination policies, including notice of availability of and how to access language
assistance services. 81 Fed. Reg. at 31,469 (formerly codified at 45 C.F.R. § 92.8(a)).
133.

In addition, covered entities were required to include taglines on all significant

documents in the top fifteen languages spoken by individuals with LEP in their state. 81 Fed.
Reg. at 31,469 (formerly codified at 45 C.F.R. § 92.8(d)(1)). Taglines are short statements that
inform individuals of their right to language assistance and how to seek such assistance.
134.

The 2016 Final Rule also required that a covered entity with at least 15 employees

designate a specific individual or individuals with responsibility to oversee compliance with
Section 1557, including LEP efforts, and investigate complaints and concerns and establish and
adhere to a specific grievance procedure. 81 Fed. Reg. at 31,469 (formerly codified at 45 C.F.R.
§ 92.7).

13

See U.S. Census Bureau, Language Spoken at Home, American Community Survey 2018 1Year Estimates Subject Tables, tbl. S1601 (2018), https://perma.cc/Z452-RSWR; U.S. Census
Bureau, Characteristics of People by Language Spoken at Home, American Community Survey
2018 1-Year Estimates Subject Tables, tbl. S1603, https://perma.cc/R59J-HG4K.

14

See Letter from Kathy Ko Chin, President & CEO, Asian & Pacific Islander American Health
Forum, to Roger Severino, Dir., Office of Civil Rights, U.S. Dep’t Health & Hum. Servs., at 21
(Aug. 13, 2019), https://perma.cc/6HWW-6833.
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135.

The Revised Rule repeals §§ 92.7 and 92.8 of the 2016 Final Rule, eliminating the

notice and tagline requirements and the requirement to designate a specific individual to oversee
Section 1557 compliance, including LEP efforts, and grievance procedure requirements. See 85
Fed. Reg. at 37,204.
136.

The elimination of the notice, tagline, and LEP requirements is arbitrary and

capricious and will result in some LEP patients failing to understand or assert their rights. It also
will result in some LEP patients failing to receive adequate care because of the difficulties
patients may have in understanding their providers or other staff, undermining the purpose and
intent of the nondiscrimination provisions of Section 1557.
137.

HHS has not explained how individuals will know about their rights and how

elimination of notices will not deny LEP individuals meaningful access to health care.
X.

The Revised Rule’s Attempt to Narrow paduthe Scope of Health Programs and
Activities Subject to Section 1557 is Arbitrary and Capricious and Contrary to Law
138.

The plain language of Section 1557 prohibits discrimination based on sex, race,

color, national origin, age, and disability under:
any health program or activity, any part of which is receiving
Federal financial assistance, including credits, subsidies, or
contracts of insurance, or under any program or activity that is
administered by an Executive Agency or any entity established
under [Title I of the ACA] (or amendments).
42 U.S.C. § 18116(a).
139.

The 2016 Final Rule correctly interpreted Section 1557 to cover all health-related

operations and programs of any health care or health insurance provider, if any part of its
operations receives Federal financial assistance; any other health program or activity that HHS
administers; or any health insurance exchange or other entity established under ACA Title I or
health insurance-exchange-related insurance plan.

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140.

The Revised Rule attempts to limit the scope of Section 1557 in two principal

ways. First, it applies Section 1557’s nondiscrimination protections only to health programs or
activities of HHS that are administered under Title I of the ACA, not to other health programs
and activities that HHS administers. 85 Fed. Reg. at 37,244 (to be codified at 45 C.F.R.
§ 92.3(a)(2)). Such a limitation excludes from Section 1557 numerous HHS health programs and
activities, including health programs and activities of the Centers for Medicare and Medicaid
Services, the Centers for Disease Control and Prevention, the National Institutes of Health, and
the Substance Abuse and Mental Health Services Administration.
141.

The Revised Rule’s interpretation of the scope of Section 1557 is inconsistent

with and contradicts the plain language of Section 1557, which states that it applies to “any
program or activity that is administered by an Executive Agency.” 42 U.S.C. § 18116(a). It
does not limit Section 1557 to health programs and activities established or administered under
ACA Title I.
142.

Second, the Revised Rule erroneously declares that health insurers are not a

“health program or activity” under Section 1557 and not subject to Section 1557’s
nondiscrimination prohibitions because, now according to HHS, they are not “principally
engaged in the business of providing healthcare.” 85 Fed. Reg. at 37,244-45 (to be codified at 45
C.F.R. § 92.3(c)).
143.

By declaring that health insurance providers are not principally engaged in the

business of providing health care, HHS purports to exclude health insurance providers from the
requirements of Section 1557, except for plans offered on the Health Insurance Marketplace or
Federally-facilitated Marketplace created under Title I and insurance plans outside of Title I that
receive Federal financial assistance. For those health insurers that operate plans outside of Title I

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but receive Federal financial assistance, the Revised Rule further limits the application of Section
1557 to only those operations that receive Federal financial assistance—all other operations of
the insurer are excluded. 85 Fed. Reg. at 37,244 (to be codified at 45 C.F.R. § 92.3(b)).
144.

This Revised Rule exempts many plans, products, and operations of many health

insurance issuers, such as self-funded group health plans, the Federal Employees Health Benefits
(FEHB) Program, and short-term limited duration insurance plans. 85 Fed. Reg. at 37,173-74.
145.

To support its new interpretation, HHS contends that providing “health insurance”

is different than providing “healthcare” and points to the definitions of “healthcare” and “health
insurance” in unrelated statutes to support its distinction. 85 Fed. Reg. at 37,172-73.
146.

But Section 1557 covers “health programs and activities,” not just direct health

care. Health insurance clearly is a health-related program or activity. It is what enables the vast
majority of Americans to access health care. Indeed, health insurance companies design the
health care individuals receive by determining benefits offered and establishing formularies,
payment structures, and networks. They also conduct prior authorization and establish and
evaluate other clinical coverage criteria, as well as exercise considerable control over the health
care of enrollees—deciding which providers a patient may see, what hospitals they may visit,
and what treatments or medications they may receive.
147.

Neither the plain language of Section 1557 nor HHS’s effort to rely on unrelated

statutes supports HHS’s unreasonable assertion that “healthcare” is different than “health
insurance.” Section 1557 explicitly provides that it covers “health programs and activities.” Its
scope is not limited to direct health care.

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XI.

The Revised Rule Arbitrarily and Capriciously Eliminates Gender Identity and
Sexual Orientation Protections in Unrelated Regulations
148.

The Revised Rule amends a series of unrelated regulations that had identified

gender identity and sexual orientation as prohibited bases of discrimination, including
regulations related to Medicaid State Plans, Programs for All-Inclusive Care for the Elderly
(PACE), and ACA state health insurance exchanges and plans. The Revised Rule eliminates
protections against gender identity and sexual orientation discrimination in those regulations. 85
Fed. Reg. at 37,218-22, 37,243.
149.

These regulations were not issued pursuant to Section 1557 and do not interpret

Section 1557. They were promulgated by CMS pursuant to the authority granted by several
unrelated statutes. These unrelated regulations were not promulgated pursuant to HHS’s
authority to implement regulations under Section 1557.
150.

For example, the Revised Rule amends regulations regarding Medicaid State

Plans and Medicaid contractors, 42 C.F.R. §§ 438.3(d)(4), 438.206 (c)(2), and 440.262, which
were issued pursuant to HHS’s authority under Section 1902 of the Social Security Act to
implement Section 1902(a)(19). That section directs HHS to “provide such safeguards as may
be necessary to assure that eligibility for care and services under the [Medicaid] plan will be
determined, and such care and services will be provided, in a manner consistent with simplicity
of administration and the best interest of the recipients.” 42 U.S.C. § 1396a(a)(19); see also
Medicaid and Children’s Health Insurance Program (CHIP) Programs, 81 Fed. Reg. 27,498,
27,538-39, 27,666 (May 6, 2016).
151.

Prior to the Revised Rule, 42 C.F.R. § 438.3(d)(4) provided: “The MCO, PIHP,

PAHP, PCCM or PCCM entity will not discriminate against individuals eligible to enroll on the
basis of race, color, national origin, sex, sexual orientation, gender identity, or disability and will

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not use any policy or practice that has the effect of discriminating on the basis of race, color, or
national origin, sex, sexual orientation, gender identity, or disability.” The Revised Rule amends
§ 438.3(d)(4) to state: “The MCO, PIHP, PAHP, PCCM or PCCM entity will not discriminate
against individuals eligible to enroll on the basis of race, color, national origin, sex, or disability
and will not use any policy or practice that has the effect of discriminating on the basis of race,
color, or national origin, sex, or disability.” 85 Fed. Reg. at 37,243 (to be codified at 42 C.F.R.
§ 438.3(d)(4)).
152.

PACE is a program for services for frail community-dwelling elderly persons,

most of whom are Medicaid and Medicare dual eligible, to keep them in the community rather
than moving to nursing homes. See 42 C.F.R. §§ 460.98, 460.112. HHS added sexual
orientation to the list of protected categories of persons eligible for PACE services in 2006,
explaining that “we do not believe anyone should be denied enrollment in PACE because of
discrimination of any kind.” Medicare and Medicaid Programs; Programs of All-Inclusive Care
for the Elderly (PACE); Program Revisions, 71 Fed. Reg. 71,244, 71,295 (Dec. 8, 2006).
153.

Prior to the Revised Rule, 42 C.F.R. § 460.98(b)(3) provided: “The PACE

organization may not discriminate against any participant in the delivery of required PACE
services based on race, ethnicity, national origin, religion, sex, age, sexual orientation, mental or
physical disability, or source of payment.” The Revised Rule amends 42 C.F.R. § 460.98(b)(3)
to state: “The PACE organization may not discriminate against any participant in the delivery of
required PACE services based on race, ethnicity, national origin, religion, sex, age, mental or
physical disability, or source of payment.” 85 Fed. Reg. at 37,243 (to be codified at 42 C.F.R.
§ 460.98(b)(3)). The Revised Rule also eliminates protections against sexual orientation

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discrimination in 42 C.F.R. § 460.112(a). 85 Fed. Reg. at 37,220, 37,243 (to be codified at 42
C.F.R. § 460.112(a)).
154.

Prohibitions of discrimination on the basis of sexual orientation and gender

identity were added to regulations regarding group and individual market health insurance plans
subject to the ACA and to ACA-created health insurance exchanges and qualified health plans.
These prohibitions were added to further the ACA’s aim of expanding insurance coverage, which
discriminatory marketing practices and benefit designs can thwart. See 45 C.F.R. §§ 147.104(e),
155.120(c)(1)(ii), 155.220(j)(2)(i), 156.200(e), & 156.1230(b)(2); see also PPACA;
Establishment of Exchanges and Qualified Health Plans, 77 Fed. Reg. 18,310, 18,319, 18,415
(March 27, 2012); PPACA; Health Insurance Market Rules, 78 Fed. Reg. 13,406, 13,417 (Feb.
27, 2013); PPACA; Exchange and Insurance Market Standards for 2015 and Beyond, 79 Fed.
Reg. 30,240, 30,261 (May 27, 2014); PPACA; HHS Notice of Benefit and Payment Parameters
for 2018, 81 Fed. Reg. 94,058, 94,064, 94,152 (Dec. 22, 2016).
155.

The Revised Rule eliminates the prohibitions on gender identity and sexual

orientation discrimination in these regulations. See 85 Fed. Reg. at 37, 219-21, 37,247-48 (to be
codified at 45 C.F.R. §§ 147.104(e), 155.120(c)(1)(ii), 155.220(j)(2)(i), 156.200(e), &
156.1230(b)(2)).
156.

HHS offers no legal, policy, or cost-benefit analysis for amending these

regulations, including the effects they have had during the years they have been in place or the
costs and benefits of amending them.
157.

HHS’s erroneous analysis of discrimination on the basis of sex under

longstanding civil rights laws provides no justification for amending these regulations, which
were promulgated to advance the goals of other statutory provisions.

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158.

HHS’s amendment of these unrelated regulations to eliminate protections for

LGBTQ people is arbitrary and capricious and without legal support.
XII.

The Revised Rule’s Cost-Benefit Analysis Is Arbitrary and Capricious
159.

The Revised Rule fails to address adequately the direct and indirect costs that

repeal of protections for LGBTQ people will have on patients, providers, insurers, and the
overall health care system.
160.

These costs take many forms, none of which the Revised Rule considers. First,

out-of-pocket costs for necessary medical procedures will shift from insurers to patients and
providers. Under the 2016 Final Rule, most insurers covered these services, but under the
Revised Rule, insurers can deny coverage on the basis that these are cosmetic procedures, rather
than medically necessary to alleviate gender dysphoria. Thus, many patients may forgo this
necessary medical care due to the high cost of these procedures or cover the cost themselves.
Providers also would lose out on the revenue from these procedures when patients cannot afford
them.
161.

Second, insurers’ increased transgender exclusions and transgender patients’

increased fear of discrimination by health care providers empowered by the Revised Rule will
lead to transgender patients delaying or declining to seek care.15 As such, transgender patients
may develop comorbid conditions such as depression, anxiety, drug abuse, and other stressrelated conditions. Treating these increased comorbid conditions will increase costs to patients,
insurers, providers, and the health system overall.

15

See Lambda Legal, When Health Care Isn’t Caring: Lambda Legal’s Survey on
Discrimination Against LGBT People and People Living with HIV at 12 (2010),
https://perma.cc/9SEG-JD2K; see also S.E. James et al., Nat’l Ctr. for Transgender Equality, The
Report of the 2015 U.S. Transgender Survey at 98 (2016), https://perma.cc/9S9L-VJ9C.
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162.

Third, patients’ delays or failures to obtain treatment will increase the direct cost

of treating physical medical conditions and is a patient safety issue that can lead to poor patient
outcomes. LGBTQ patients who fear discrimination may delay, or never receive, preventative
care such as cancer screenings. Without regular screenings, LGBTQ patients will develop more
advanced cancers and other health conditions. Because the cost of treating more advanced
diseases far outweighs the cost of preventative care, the Revised Rule will increase costs to
patients, insurers, providers, and the overall health care system.
163.

The Revised Rule does not consider these costs associated with inviting

discrimination against LGBTQ patients, and in particular those who are transgender. Ignoring
such substantial costs makes the Revised Rule’s cost-benefit analysis seriously flawed and
arbitrary and capricious.
164.

Indeed, the Revised Rule specifically admits HHS did not take the costs or harms

to transgender patients into account, stating: “the Department also lacks the data necessary to
estimate the number of individuals who currently benefit from covered entities’ policies
governing discrimination on the basis of gender identity who would no longer receive those
benefits after publication of this rule.” 85 Fed. Reg. at 37,225.
165.

The costs of prohibiting sex-based discrimination against transgender people in

health insurance coverage is minimal compared to the costs associated with inviting such
discrimination. The 2016 Final Rule acknowledged this fact, stating that prohibiting
discrimination against transgender consumers in health insurance “will have de minimis impact
on the overall cost of care and on health insurance premiums.” 81 Fed. Reg. at 31,456-57.
Moreover, studies have found that providing coverage of transition-related care is extremely
cost-effective and reduces costs in the long term. For example, a 2013 survey of employers

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found that providing transition-related health care benefits has “zero or very low costs” and
utilization rates of approximately 1 per 10,000 to 20,000 employees.16 Another study found that
the cost of providing coverage for treatment of gender dysphoria was about $0.016 per member
per month. It also concluded that this small cost could reduce other costly health risks like
depression and drug abuse.17 Numerous other studies confirm these conclusions.18
166.

The Revised Rule also fails to include in its cost-benefit analysis the costs

associated with (1) eliminating gender identity nondiscrimination protections in the CMS
regulations promulgated under different statutes, and (2) adopting the broad religious exemptions
from Title IX and unrelated statutes. The costs of these changes include those associated with
the increased discrimination that will result from the Revised Rule. Failing to consider these
costs also makes the Revised Rule arbitrary and capricious.

16

Jody L. Herman, Cost and Benefits of Providing Transition-Related Health Care Coverage in
Employee Health Benefits Plans, The Williams Institute of the UCLA School of Law (Sept.
2013), https://perma.cc/D8J5-FACP.
17

William V. Padula et al., Societal Implications of Health Insurance Coverage for Medically
Necessary Services in the U.S. Transgender Population: A Cost-Effectiveness Analysis, 31 J.
GEN. INTERN. MED. 394, 398 (Oct. 2015), https://perma.cc/74EW-LZPY.
18

See Declaration of Raymond Edwin Mabus, Jr., former Secretary of the Navy, in Support of
Plaintiff’s Motion for Preliminary Injunction ¶ 41, Doe v. Trump, No. 1:17-cv-1597-CKK (Aug.
31, 2017), ECF No. 13-9, https://perma.cc/8ZU8-8NGE (concluding costs associated with
providing health care to transgender service members was considered by a former Secretary of
the Navy to be “budget dust, hardly even a rounding error”); Padula, et al., Societal Implications
of Health Insurance Coverage for Medically Necessary Services in the U.S. Transgender
Population: A Cost-Effectiveness Analysis at 398, https://perma.cc/74EW-LZPY (calculating the
costs would be fewer than two pennies per month for every person with health insurance
coverage in the United States); Cal. Dep’t of Ins., Economic Impact Assessment: Gender
Nondiscrimination in Health Insurance (Reg. File No. REG-2011-00023) (Apr. 13, 2012),
https://perma.cc/QJ34-RVNQ (finding that costs of providing health care did not increase
materially when employers adopted policies that prohibited discrimination against transgender
individuals).
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XIII. The Revised Rule Betrays Discriminatory Animus Against LGBTQ People
167.

HHS’s discriminatory animus in promulgating the Revised Rule is evident, as the

promulgation of the Revised Rule is just the latest step in its multi-step erasure of LGBTQ
people from health care-related nondiscrimination protections.
168.

Defendant Severino has a history of anti-LGBTQ sentiments, advocacy, and

comments. For example, in 2016, before he became Director of OCR, defendant Severino
decried the 2016 Final Rule because it ran counter to some people’s “moral, and religious beliefs
about biology” and because, in his opinion, the 2016 Final Rule “create[d] special privileges,
new protected classes, or new rights to particular procedures.”19
169.

In 2016, defendant Severino also denounced the Department of Justice’s

enforcement of Title IX’s sex discrimination protections as they applied to transgender people as
“using government power to coerce everyone, including children, into pledging allegiance to a
radical new gender ideology.”20
170.

That same year, defendant Severino also stated that he believes transgender

military personnel serving openly “dishonors” the service of other service members.21 In
addition, he referred to a transgender male student involved in a Title IX lawsuit as a “teen
biological girl.”22

19

Ryan Anderson & Roger Severino, Proposed Obamacare Gender Identity Mandate Threatens
Freedom of Conscience and the Independence of Physicians, The Heritage Foundation (Jan. 8,
2016), https://perma.cc/5XKG-S79Z.
20

Roger Severino, DOJ’s Lawsuit Against North Carolina Is Abuse of Power, The Daily Signal
(May 9, 2016), https://perma.cc/3FFM-KFMB.
21

Roger Severino, Pentagon’s Radical New Transgender Policy Defies Common Sense,
CNSNews (July 1, 2016), https://perma.cc/VK37-5FP7.
22

Roger Severino & Jim DeMint, Court Should Reject Obama’s Radical Social Experiment, The
Heritage Foundation (Dec. 14, 2016), https://perma.cc/N6K8-HQY5.
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171.

In 2018, it was reported that HHS’s OCR was considering defining sex as “a

person’s status as male or female based on immutable biological traits identifiable by and before
birth,” a definition that is contrary to the legal, medical, and scientific understanding of sex.23
172.

And in 2019, HHS issued a Notification of Nonenforcement of Health and Human

Services Grants Regulation, in which it stated that it would no longer enforce regulations that
prohibit discrimination based on sex, sexual orientation, or gender identity in grant programs that
HHS funds. 84 Fed. Reg. 63,809 (Nov. 19, 2019).
173.

With defendant Severino now Director of OCR, defendants seek to eviscerate the

nondiscrimination protections Severino denounced.
174.

For example, HHS asserts that it considered adding gender identity and sexual

orientation discrimination to a definition of “sex” or discrimination “on the basis of sex” under
Title IX, but concluded doing so was “inappropriate to do so in light of the ordinary public
meaning of discrimination on the basis of sex under Title IX” and because “[a]s a policy matter,”
state and local entities “are better equipped to address with sensitivity issues of gender
dysphoria, sexual orientation, and any competing privacy interests, especially when young
children or intimate settings are involved.” 85 Fed. Reg. at 37,222. Not only has the Supreme
Court rejected HHS’s position on the definition of “sex” under Title VII, but the notion that
health care protections for LGBTQ people are at odds with “young children” is as offensive as it
is telling.
175.

As another example, although HHS declares that its position on the meaning of

sex discrimination “will not bar covered entities from choosing to grant protections on the basis

23

Erica L. Green, Katie Benner & Robert Pear, ‘Transgender’ Could Be Defined Out of
Existence Under Trump Administration, N.Y. Times (Oct. 21, 2018), https://perma.cc/YQR6YN2F.
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of sexual orientation and gender identity that do not conflict with any other Federal law,” 85 Fed.
Reg. at 37,222, HHS also states that a covered entity’s refusal to make distinctions on the basis
of sex “could in some cases violate personal privacy interests and so create a hostile environment
under Title IX.” 85 Fed. Reg. at 37,184. This assertion and the cases cited have nothing to do
with Section 1557 and what facilities should be available to a patient in a health care setting.
176.

HHS also fails to acknowledge that no cognizable legal claim exists based on

having to share a restroom or other single-sex facility with a transgender person. HHS’s
suggestion to the contrary, see 85 Fed. Reg. at 37,190-91, is inconsistent with the rule of law and
not a “reasonable” analysis. It serves only to heighten alarm among LGBTQ people and
embolden those who attack them with frivolous assertions.
177.

The Revised Rule reflects HHS’s animosity toward LGBTQ people.

XIV. The Revised Rule Creates Immediate and Irreparable Harms
178.

The Revised Rule cannot change the law and the courts will determine the

meaning of Section 1557. However, HHS’s rules have a substantial effect on health care
providers and institutions, as well as on the public. The Revised Rule will result in increased
discrimination against LGBTQ people, including those with LEP, by health care providers and
health insurers. This increased discrimination will directly and irreparably injure plaintiffs, their
members, their patients, and the individuals whom they serve.
A.

The Revised Rule Will Increase LGBTQ Discrimination by Health Care
Providers and Staff and Cause Irreparable Harm to Plaintiffs and the
Patients and Individuals They Serve

179.

Discrimination delays or denies necessary health care. It also discourages

LGBTQ people from seeking care and from fully disclosing personal information that health care
providers need for proper diagnosis and treatment.

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180.

The Revised Rule sends a message to the health care industry and the LGBTQ

community that federal law permits discrimination against LGBTQ patients.
181.

Indeed, in its Notice of Proposed Rulemaking, HHS acknowledged the 2016 Final

Rule “likely induced many covered entities to conform their policies and operations to reflect
gender identity as protected classes [sic] under Title IX.” 84 Fed. Reg. at 27,876. And in the
Revised Rule, HHS acknowledges that some covered entities may revert to the policies and
practices they had in place before the 2016 Final Rule. 85 Fed. Reg. at 37,225. OCR also
estimates that 60% of the increase in its anticipated long-term caseload of claims of
discrimination are attributable to discrimination claims based on the 2016 Rule’s definition of
sex discrimination with respect to gender identity and sex stereotyping, though OCR has not
enforced such claims. 85 Fed. Reg. at 37,235.
182.

HHS tries to minimize the harm the Revised Rule will create, repeatedly claiming

that because a federal district court enjoined enforcement of claims based on the definition of sex
discrimination in the 2016 Final Rule in December 2016 and later vacated those provisions, any
harm would not be the result of the Revised Rule, which merely is maintaining the status quo.
See, e.g., 85 Fed. Reg. at 37,181-82, 37,192, 37,199, & 37,238.
183.

HHS’s position is disingenuous at best. HHS has issued a Revised Rule

attempting to legislate that claims of discrimination based on LGBTQ status are not “cognizable”
under Section 1557. 85 Fed. Reg. at 37,225.
184.

Without complete protection from discrimination based on their sex, including

discrimination based on their sexual orientation, gender identity, transgender status, or failure to
conform to sex stereotypes, LGBTQ people will be discouraged from seeking the health care
they need.

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185.

The Revised Rule also will discourage LGBTQ people from fully disclosing

personal information related to their sexuality and gender that health care providers need for
proper diagnosis.
186.

The Revised Rule will harm plaintiffs, their patients, and the LGBTQ people

whom they serve in multiple ways.
1.
187.

Harm to Patients and Individuals Whom Plaintiffs Serve

LGBTQ individuals and especially transgender and gender-nonconforming people

already face particularly acute barriers to care and health disparities that will be compounded by
the Revised Rule. A majority of LGBTQ patients fear going to health care providers because of
past experiences of anti-LGBTQ bias in health care settings. Many LGBTQ patients report
negative experiences, including hostility, discrimination, and denials of care, when they disclose
to health care providers their sexual orientation, history of sexual conduct, gender identity,
transgender status, or history of gender-affirming medical treatment, and related medical
histories.
188.

For example, multiple LGBTQ patients at Whitman-Walker have previously been

refused medical care, including routine care unrelated to gender dysphoria, by providers outside
of Whitman-Walker simply because they are LGBTQ. In one instance, a radiological technician
refused to perform an ultrasound for testicular cancer on a transgender patient. In another, a
health care worker at a dialysis clinic confronted a Whitman-Walker patient with end-stage renal
disease and objected to being involved in the patient’s care because of hostility to his sexual
orientation. In another, after a Whitman-Walker patient—a transgender teenager—was
hospitalized in a local hospital following a suicide attempt, the staff would only address or refer
to the young person with pronouns inconsistent with their gender identity, exacerbating the
teenager’s acutely fragile state of mind. Local hospitals and surgeons have refused to perform
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transition-related surgeries on Whitman-Walker transgender patients, even when they routinely
perform the very same procedures on non-transgender patients, including in situations when the
patient’s insurance would have covered the procedure or when the patient was able to pay for the
procedure. Many local primary-care physicians unaffiliated with Whitman-Walker have refused
to prescribe hormone therapy for transgender patients. And multiple Whitman-Walker patients
have been denied prescriptions by pharmacists. Behavioral-health providers at Whitman-Walker
report that the vast majority of transgender patients—as many as four out of five—report
instances of mistreatment or discrimination by health care providers, hospitals, clinics, doctors’
offices, or other facilities outside of Whitman-Walker.
189.

Patients of the LA LGBT Center report similar experiences of discrimination by

other providers. One transgender patient, who developed profuse bleeding after surgery, was
denied treatment at an emergency room and arrived at the LA LGBT Center in distress three
days later, having lost a significant amount of blood. Another patient required extensive surgery
to repair damage caused by a prior silicone breast-augmentation procedure. But she was turned
down by an academic plastic-surgery center in Los Angeles because the surgeon said her health
problems were caused by her own poor decision-making and she therefore would not be
considered for treatment. By the time she was able to identify a surgeon who was willing to treat
her, with the assistance of a physician at the LA LGBT Center, years had passed and her
condition had become life-threatening. For patients at the LA LGBT Center, the ability to
receive gender-affirming medical care can mean the difference between life and death.
190.

In many geographic regions, a majority of LGBTQ people lack a provider whom

they consider to be their personal doctor. As a result, when they seek health care services, they
will encounter a health care provider with whom they do not have a relationship. This makes

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them especially vulnerable to discriminatory treatment from providers who are not LGBTQaffirming. For some medical specialties, there are only a handful of health care providers in the
region who have the expertise necessary to treat a patient for a particular condition, so a denial of
care from even one provider could make it practically impossible for an LGBTQ patient to
receive any care at all.
191.

In a recent study, nearly one in five LGBTQ people, including 31% of

transgender people, said that if they were turned away from a hospital, it would be very difficult
or impossible to get the health care they need elsewhere.24 The rate was substantially higher for
LGBTQ people living in non-metropolitan areas, with 41% reporting that it would be very
difficult or impossible to find an alternative provider. Even when they are able to get access to
care, many LGBTQ individuals report that health care professionals have used harsh language
toward them, refused to touch them, used excessive precaution, or blamed the individuals for
their health status.25
192.

Consequently, LGBTQ patients are disproportionately likely to delay preventative

screenings and necessary medical treatment and therefore to end up with more acute health
problems and outcomes, raising concerns about patient safety. Research has identified pervasive
health disparities for LGBTQ people with respect to cancer, HIV, obesity, mental health, tobacco
use, and more. In other words, LGBTQ people, who are disproportionately likely to need a wide
range of routine medical care, already have reason to fear, and often do fear, negative
consequences of “coming out” to health care providers about their sexual orientation, history of

24

See Mirza & Rooney, Discrimination Prevents LGBT People From Accessing Health Care,
https://perma.cc/ZG7E-7WK8.
25

Id.
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sexual conduct, gender identity, transgender status, history of gender-affirming medical
treatment, and related medical histories.
193.

The Revised Rule will exacerbate the acute health disparities LGBTQ people

already face. The Revised Rule sends the message that discrimination on the basis of gender
identity and sex stereotyping is permissible under federal law, which will increase the number of
LGBTQ people who will be denied care.
194.

The Revised Rule also encourages LGBTQ people to remain closeted to the

extent possible when seeking medical care. But remaining closeted to a health care provider may
result in significant adverse health consequences. For instance, a patient who conceals or fails to
disclose a same-sex sexual history may not be screened for HIV or other relevant infections or
cancers, or may not be prescribed preventative medications such as Pre-Exposure Prophylaxis or
PrEP, which is extremely effective at preventing HIV transmission. Patients who fail fully to
disclose their gender identity and sex assigned at birth may not undergo medically indicated tests
or screenings (such as tests for cervical or breast cancer for some transgender men, or testicular
or prostate cancer for some transgender women). The barriers to care are particularly high for
transgender people. Nearly one-quarter of transgender people report delaying or avoiding
medical care when sick or injured, at least partially because of fear of discrimination by and
disrespect from health care providers.26
195.

Patients remaining closeted to health care providers also results in increased costs

to the health care system. For example, when a patient is closeted, medical providers may not
order medically necessary tests or screenings, which has downstream effects such as

26

See Mirza & Rooney, Discrimination Prevents LGBT People From Accessing Health Care,
https://perma.cc/ZG7E-7WK8.
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exacerbating a patient’s distress and increasing costs to providers and the health care system as a
whole for delayed treatment.
196.

The Revised Rule will result in increased discrimination against LGBTQ people

in the provision of health care and cause harm to the health of LGBTQ people and to public
health generally.
2.
197.

Harm to Private Health Care Provider Plaintiffs, LGBTQ-Services
Plaintiffs, and Health Professional Association Plaintiffs

The Revised Rule, which fosters discrimination against LGBTQ people in the

provision of health care, frustrates plaintiffs’ core missions of providing and advocating for
affirming, high-quality care to all LGBTQ people and protecting against discrimination on the
basis of LGBTQ status in the delivery of health care and services to patients.
198.

In addition, because more LGBTQ patients will delay seeking health care, they

will come to Whitman-Walker and the LA LGBT Center, the private health care provider
plaintiffs who serve many LGBTQ patients, and members of the health professional association
plaintiffs – GLMA and AGLP – with more acute conditions, diseases that are more advanced at
diagnosis, less responsive to treatment, or no longer treatable. This delay will strain the
resources of providers and increase costs for providers and patients and the health care system in
general.
199.

The discriminatory experiences LGBTQ patients have with other health care

providers erode patients’ trust in health care providers overall and thus also challenges the ability
of plaintiffs to treat their patients effectively and provide appropriate services and referrals. To
provide proper medical care and services to the LGBTQ community, plaintiffs rely on frank and
complete communication with their patients and the individuals who seek their services.
Plaintiffs need patients and individuals seeking services to fully disclose all aspects of their

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health history, sexual history, and gender identity to provide appropriate care for the patients’
health. Without full disclosure, plaintiffs are not able to treat adequately their patients. For
instance, plaintiffs need to know patients’ sexual history to know whether to test them for HIV or
other infections or cancers. And plaintiffs need to be aware of patients’ gender identity and sex
assigned at birth to order proper screenings and tests – like cervical or breast cancer for some
transgender men, or testicular or prostate cancer for some transgender women. The Revised
Rule endangers the provider-patient relationship and will harm plaintiffs and their patients by
discouraging full disclosure. This also means that medical and health care providers bear
increased risk of malpractice when patients do not feel comfortable to fully disclose all aspects
of their health history, sexual history, and gender identity.
200.

The Revised Rule’s effect of increasing discrimination by other providers will

lead to increased demand for providers, entities, and individuals who serve the LGBTQ
community, like Whitman-Walker, LA LGBT Center, the TransLatin@ Coalition (and its
affiliated organizations like FLAS and Arianna’s Center), Bradbury-Sullivan Center, and the
members of GLMA and AGLP. This increased demand will place a strain on these plaintiffs’
resources, leaving them unable to fulfill their organizational missions, spend sufficient time on
each patient or individual seeking services, and provide care and services to all individuals. It
also will harm LGBTQ people through increased wait times and delays of care that may worsen
conditions.
201.

In addition, Whitman-Walker, LA LGBT Center, the TransLatin@ Coalition (and

some of its affiliated organizations like FLAS and Arianna’s Center), and Bradbury-Sullivan
Center, as well as the members of GLMA and AGLP and the individual provider plaintiffs, all
refer patients to other health care providers. The Revised Rule will harm the ability of these

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plaintiffs to refer LGBTQ patients to other providers because they will not know whether these
providers will discriminate against their patients and/or refuse to treat their patients under the
Revised Rule’s personal religious or moral belief exemptions. Thus, these plaintiffs will be
required to redirect their staff and resources from providing their own services to assisting
patrons in determining who among the health care providers in the region will serve LGBTQ
patients in a nondiscriminatory manner.
202.

The Revised Rule also will burden the private health care provider and LGBTQ-

services plaintiffs by precluding them from carrying out their organizational missions of
providing affirming, non-discriminatory care to all LGBTQ patients based on the religious views
of a single employee. The sweeping religious exemptions in the Revised Rule encourage
individual employees to believe their discriminatory beliefs can prevail over their duties to
patients – and to their fellow employees – posing barriers to patient care and creating burdens for
the organizations. The private health care provider and LGBTQ-services plaintiffs may be
forced to institute costly workarounds and duplicative staff to accommodate the religious views
of a single employee, which also may result in unfairly burdening non-objecting employees.
These increased costs also may result in a reduction of services and closure of programs, thus
frustrating plaintiffs’ institutional missions and core functions of providing comprehensive health
care and other services to LGBTQ people.
3.
203.

Additional Harm to GLMA, AGLP, and Their Members

The Revised Rule also will create additional harms to the health professional

association plaintiffs GLMA and AGLP, their members, the LGBTQ patients whose interests
they represent, and the patients whom their members treat.
204.

GLMA works with professional accreditation bodies, such as the Joint

Commission, and health-professional associations, on standards, guidelines, and policies that
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address LGBTQ health and protect individual patient health and public health in general. The
Revised Rule prevents GLMA from achieving its goals with professional accreditation bodies by
preventing such bodies from holding health care providers accountable for discrimination against
LGBTQ people.
205.

For a health care organization to participate in and receive federal payment from

Medicare or Medicaid programs, the organization must obtain a certification of compliance with
health and safety requirements. That certification is achieved based on a survey conducted either
by a state agency on behalf of the federal government, or by a federally recognized national
accrediting organization, like the Joint Commission. Accreditation surveys include requirements
that health care organizations not discriminate on the basis of sex, sexual orientation, or gender
identity in providing services or in employment. The Revised Rule presents a direct conflict
with nondiscrimination standards the Joint Commission has adopted and all the major healthprofessional associations stating that health care providers should not discriminate in providing
care for patients and clients because of sexual orientation or gender identity.
206.

The Revised Rule invites health care organizations who discriminate against

LGBTQ people to become accredited. The Revised Rule conflicts with GLMA’s mission of
achieving and enforcing accreditation standards relating to nondiscrimination.
207.

Members of GLMA and AGLP also will be harmed by the Revised Rule because

some members are employed by health care organizations that may rely on the religious and
moral exemptions in the Revised Rule to deny care or discriminate against LGBTQ patients.
The Revised Rule encourages religiously-affiliated health care employers to discriminate against
employees who are GLMA or AGLP members for adhering to and enforcing their medical and

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ethical obligations to treat all patients in a nondiscriminatory manner, including providing all
medically-necessary care that is in LGBTQ patients’ best interests.
208.

In addition, the Revised Rule invites harassment and discriminatory treatment of

GLMA and AGLP members in the workforce by fellow employees. The Revised Rule sends a
message that discrimination against LGBTQ health care providers and their LGBTQ patients is
permissible. GLMA and AGLP members and their LGBTQ patients are stigmatized and
demeaned by this message that LGBTQ people are not deserving of legal protections in the
health care context. The Revised Rule thus frustrates GLMA’s and AGLP’s missions of
achieving and enforcing safe workspaces for LGBTQ health professionals and nondiscriminatory health care services for their LGBTQ patients.
4.
209.

Additional Harm to the TransLatin@ Coalition, Its Members, and the
Individuals it Serves

The Revised Rule also will harm the TransLatin@ Coalition, its members, its

affiliated organizations, and the individuals whom the Coalition serves in that the harms the
Revised Rule will exact on LGBTQ people, particularly those who are transgender, will be
exacerbated for those with LEP. The Revised Rule’s elimination of notice and tagline
requirements will make it more difficult for LGBTQ people with LEP to be aware of their rights,
which language services and aids are available, how to access such services, and how to handle
discrimination and complaints. The health care system was already difficult to navigate for LEP
individuals, and the Revised Rule serves to exacerbate those difficulties and undermines access
to health care, health insurance, and legal redress. The Revised Rule will harm the TransLatin@
Coalition’s mission and members by making it more difficult to access health care and by
decreasing protections from discrimination.

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210.

The Revised Rule’s elimination of the unitary standard also harms the

TransLatin@ Coalition, its members, and individuals whom it serves by making it more difficult
to bring claims of intersectional discrimination. Rather than being able to assert claims under a
unitary standard, intersectional discrimination claims will be subject to different standards,
enforcement mechanisms, and remedies based on which identities are at issue.
B.

The Revised Rule Will Result in Increased Discrimination by Health Plans,
Particularly Against Persons Seeking Gender-Affirming Care

211.

Many private and public plans resist coverage of medically necessary procedures,

whether through blanket exclusions of “sex change” or “sex transition” procedures, or through
denials of coverage of specific procedures. Many plans that do not contain blanket exclusions
still exclude many essential types of surgeries related to gender transition, such as facial or chest
surgery.
212.

Many insurers also deny coverage of other specific treatments needed to complete

an individual’s transition on the grounds that the procedure is “cosmetic” – either by relying on
general plan language excluding cosmetic procedures or concluding that a procedure is not
medically necessary. Examples of procedures that are categorically excluded as “cosmetic” in
many plans and by many utilization reviewers include:
a.

Surgeries of the head and face, such as hair transplant, scalp advancement,
brow reduction, lip reduction or augmentation, rhinoplasty, cheek and chin
contouring, jawline modification, blepheroplasty, and other facial
feminization techniques for transgender women;

b.

Laser hair removal and electrolysis, on the face and elsewhere on the
body;

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c.

Surgeries involving the neck, such as cartilage reduction (modification of
the Adam’s Apple) and vocal feminization surgery;

d.

Breast augmentation and reduction;

e.

Other body contouring procedures, such as waist reduction, hip/buttocks
implants, fat transfer, pectoral implants; and

f.
213.

Lessons/training to modify the vocal range.

Relying on its definition of “on the basis of sex” to include gender identity and to

forbid discrimination against transgender individuals, the 2016 Final Rule helped persuade
Medicaid administrators, insurance company personnel, and employee health plan sponsors to
eliminate outdated exclusions and to agree to cover procedures when supported by evidence of
medical necessity. Following its promulgation, the 2016 Final Rule led to a decrease in
discriminatory policies and practices.27 A recent study of 37 states in the federal marketplace
showed that 97% of plans analyzed did not contain blanket exclusions of transition-related care
in 2019.28
214.

By eliminating the 2016 Final Rule’s definition of “on the basis of sex” and the

explicit prohibitions on “categorical coverage exclusion[s] or limitation[s] for all health services
related to gender transition” and denials, limitations, or restrictions “for specific health services
related to gender transition if such denial, limitation, or restriction results in discrimination
against a transgender individual,” 81 Fed. Reg. at 31,472 (formerly codified at 45 C.F.R. §
92.207(b)(4)-(5)), the Revised Rule invites reversal of much of this progress, leading to a

27

Gruberg & Bewkes, The ACA’s LGBTQ Nondiscrimination Regulations Prove Crucial,
https://perma.cc/CTP2-UMEJ.
28

Out2Enroll, Summary of Findings: 2020 Marketplace Plan Compliance with Section 1557,
https://perma.cc/WU25-C9BN. This is consistent with summaries from 2017, 2018, and 2019.

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reduction in coverage and access to medically necessary health care for transgender and gender
nonconforming patients.
215.

In addition, the Revised Rule’s narrow interpretation of what constitutes a

covered entity similarly will result in a reduction in coverage and access to medically necessary
health care for transgender and gender nonconforming patients.
216.

Increased discrimination by health insurance plans will harm plaintiffs and the

patients and individuals whom they serve. Plaintiffs that provide health care services will face
increased costs because many private and public plans will refuse to cover medically necessary
procedures based on the Revised Rule’s elimination of protections against gender identity
discrimination. Plaintiffs, in turn, will be forced to either cover the costs of these medically
necessary procedures, or turn away LGBTQ patients who need these services but cannot afford
to pay for them out of pocket. Likewise, patients may forgo necessary medical care due to the
high cost of these procedures or cover the cost themselves.
C.

The Revised Rule Will Result in Increased Discrimination towards Patients
with Limited English Proficiency

217.

Language access protections are required to prevent discrimination based on

national origin. These services are important because ineffective communication between health
care providers and LEP patients for the purposes of diagnosis, treatment options, proper use of
medication, obtaining informed consent, and insurance coverage can result in adverse health
consequences or death.
218.

The Revised Rule eliminates the requirement that covered entities take reasonable

steps to provide meaningful access to “each individual with LEP eligible to be served or likely to
be encountered” and replaces it with a general reference to “LEP individuals.” See, e.g., 85 Fed.

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Reg. at 37,245. However, focusing on LEP individuals in general as opposed to each individual
will result in some individuals not receiving the services they need for meaningful access.
219.

In addition, the Revised Rule eliminates the existing requirement that non-

discrimination notices include the availability of language assistance services and taglines in the
top 15 languages spoken by LEP individuals in a state. HHS “acknowledges the potential of
reduced awareness of the availability of language services by LEP individuals by the changes
made in this rule, or downstream effects on malpractice claims due to less awareness,” 85 Fed.
Reg. at 37,235, yet HHS dismissed these negative effects claiming enforcement of Section 1557
will diminish them.
220.

The Revised Rule will harm LEP patients, including members of the TransLatin@

Coalition and those the Coalition and its affiliated organizations (like FLAS and Arianna’s
Center) serve, as well as the LEP patients private health care provider plaintiffs serve, by
diminishing or eliminating meaningful access to health care because they will not be aware of
their rights or the programs or services available to them.
221.

The weakening of protections for LEP individuals will result not only in poorer

health outcomes for LEP individuals, but also in increased costs and burdens for plaintiffs. As a
result of the Revised Rule, private health care and individual provider plaintiffs will face
increased burdens due to fewer clients being aware of their language access rights and the
likelihood that more people will turn to them for help in their language, rather than other covered
health care providers.
222.

For example, the weakening of protections for LEP individuals will harm LEP

patients of private health care providers who get care elsewhere and who private health care
providers need to refer outside their organizations for specialty care, as they will no longer

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benefit from the notices, taglines, and additional language access provisions that are critical to
ensure meaningful access to care.
223.

The weakening of protections also will burden private health care and individual

provider plaintiffs, as well as members of health professional association plaintiffs, because
patients will come to them sicker due to inadequate care elsewhere, and more people may come
to them because their LEP services will remain robust.
224.

In addition, the weakening of protections for LEP individuals will harm private

health care providers and individual provider plaintiffs, as well as members of health
professional association plaintiffs, as it will place them at an increased risk for malpractice
claims linked to inadequate language access.
FIRST CLAIM FOR RELIEF
Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(A)
Arbitrary and Capricious
225.

Plaintiffs repeat and incorporate by reference each allegation of the prior

paragraphs as if fully set forth herein.
226.

Defendants are subject to the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 551 et seq.
227.

The APA provides that courts must “hold unlawful and set aside agency action”

that is “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A).
228.

The Revised Rule is arbitrary and capricious because defendants’ justifications for

repealing critical anti-discrimination protections run counter to the evidence before the agency
and disregard material facts and evidence, defendants fail to supply a reasoned explanation for
their policy change from the 2016 Final Rule to the Revised Rule, defendants have failed to
consider important aspects of the problem, including the Revised Rule’s interference with

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current law, and defendants failed to account properly for the costs and benefits of the Revised
Rule.
229.

The Revised Rule relies primarily on a single ruling and the federal government’s

litigation position in the Bostock case and related litigation to justify HHS’s rejection of longstanding authority that has defined discrimination on the basis of sex in a variety of federal civil
rights laws to include discrimination against individuals who are LGBTQ. The Supreme Court
now has rejected HHS’s position.
230.

The Revised Rule also eliminates, contrary to statutory authority, the unitary legal

standard for enforcement of violations of Section 1557, replacing it with a fractured approach
that will complicate and make it more difficult to bring discrimination claims under Section
1557, particularly claims of intersectional discrimination.
231.

The Revised Rule’s elimination of the explicit recognition of private rights of

action and the availability of compensatory damages under Section 1557 also will confuse the
public and mislead many individuals into not asserting their legal rights.
232.

In addition, contrary to the statutory language of Section 1557, the Revised Rule

imports broad and sweeping exemptions for discrimination based on personal religious or moral
belief from both the named statutes in Section 1557 and other statutes, like the Religious
Freedom Restoration Act (42 U.S.C. § 2000bb et seq.), which Section 1557 does not reference.
These exemptions invite individual health care providers, health care entities (hospitals, clinics
etc.), and insurers across the country to opt out of treating patients, including many transgender
patients, if they believe doing so would compromise their faith. Defendants’ attempt to create
new religious exemptions in Section 1557 is contrary to law and endangers patients’ health in the
name of advancing the religious beliefs of those who are entrusted with caring for them – a result

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sharply at odds with HHS’s stated mission, which is to “enhance and protect the health and wellbeing of all Americans” and to “provid[e] for effective health and human services.” It also
adversely affects health care providers that serve and treat the LGBTQ community because (1)
individual health care employees may decline to serve patients based on religious objections, and
(2) their ability to refer patients to other providers will be impaired, as the Revised Rule invites
those other providers to discriminate against their LGBTQ patients.
233.

The Revised Rule also arbitrarily limits the scope of Section 1557, cutting back

on the entities subject to the statute, contrary to the plain language of Section 1557.
234.

Defendants also have failed to provide a sufficient explanation for the decision to

eliminate the references to sexual orientation and gender identity discrimination in unrelated
regulations promulgated under different statutes. Neither the evidence before the agency nor the
weight of the legal authority supports the elimination of these protections.
235.

Defendants also have failed to provide a sufficient explanation for the decision to

eliminate protections against discrimination on the basis of association. Neither the evidence
before the agency nor the weight of the legal authority supports the elimination of these
protections.
236.

The Revised Rule also is arbitrary and capricious in that it eliminates the

requirement of notice of nondiscrimination requirements and access to language protections
without adequate justification, undermining the ACA’s charge to ensure individuals have access
to health care and health insurance.
237.

The Revised Rule fails to consider important regulatory costs, including

significant direct or indirect health costs to plaintiffs, their patients, and public health and safety.

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238.

The Revised Rule therefore is arbitrary, capricious, [or] an abuse of discretion” in

violation of the APA. 5 U.S.C. § 706(2)(A).
239.

Defendants’ violations cause ongoing harm to plaintiffs, their patients, the

individuals they serve, and their members.
SECOND CLAIM FOR RELIEF
Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(A)
Not in Accordance with Law
240.

Plaintiffs repeat and incorporate by reference each allegation of the prior

paragraphs as if fully set forth herein.
241.

Under the APA, a court must “hold unlawful and set aside agency action” that is

“not in accordance with law.” 5 U.S.C. § 706(2)(A).
242.

The Revised Rule is not in accordance with law because it conflicts with the

Supreme Court’s ruling in Bostock that discrimination on the basis of a person’s sexual
orientation or transgender status is discrimination on the basis of sex under Title VII, and rejects
the well-established understanding of “sex” under longstanding civil rights laws as including
such discrimination.
243.

The Revised Rule’s elimination of protections based on sexual orientation and

gender identity in unrelated regulations promulgated under different statutes likewise conflicts
with controlling legal authority regarding the meaning of “sex.”
244.

The Revised Rule’s elimination of protections against discrimination on the basis

of association contravenes existing case law and the underlying statutes and therefore is , not in
accordance with law.
245.

The Revised Rule conflicts with the statutory language and purpose of Section

1557 by failing to make the enforcement mechanisms provided by Title VI, Title IX, the Age

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Discrimination Act, and the Rehabilitation Act available in the case of discrimination against a
person based on any characteristic protected by these statutes.
246.

The Revised Rule also conflicts with the statutory language of Section 1557 by

importing broad and sweeping exemptions based on personal religious or moral belief from the
identified statutes in Section 1557 and other statutes, including the Religious Freedom
Restoration Act (42 U.S.C. § 2000bb et seq.), which Section 1557 does not reference.
247.

In addition, the Revised Rule conflicts with the statutory language of Section

1557 by limiting the entities covered under Section 1557.
248.

The Revised Rule violates Section 1554 of the ACA, which explicitly prohibits

the Secretary of HHS from promulgating any regulation that “creates any unreasonable barriers
to the ability of individuals to obtain appropriate medical care” or “impedes timely access to
health care services.” 42 U.S.C. § 18114. The Revised Rule creates unreasonable barriers and
impedes timely access to health care by reversing protections against discrimination of
historically marginalized communities and eliminating access to language provisions.
249.

The Revised Rule therefore is “not in accordance with law” as required by the

APA. 5 U.S.C. § 706(2)(A).
250.

Defendants’ violations cause ongoing harm to plaintiffs, their patients, the

individuals they serve, and their members.
THIRD CLAIM FOR RELIEF
Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(C)
Exceeds Statutory Authority
251.

Plaintiffs repeat and incorporate by reference each allegation of the prior

paragraphs as if fully set forth herein.

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252.

Under the APA, a court must “hold unlawful and set aside agency action” that is

“in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C.
§ 706(2)(C).
253.

Federal agencies do not have the power to act unless Congress confers the power

upon them. Defendants were not given the power to alter Section 1557’s statutory terms, but that
is precisely what the Revised Rule attempts to do. The Revised Rule unduly limits the explicit
nondiscrimination protections against sex discrimination set forth in Section 1557 by purporting
to preclude claims of discrimination based on an individual’s LGBTQ status. It also places
health care services for LGBTQ people, gender nonconforming people, and other consumers at
risk without congressional authorization to make these changes.
254.

The Revised Rule’s elimination of a unitary legal standard to address violations of

Section 1557 and limitation on the entities covered under Section 1557 likewise is contrary to the
language and intent of Section 1557 and exceeds HHS’s authority.
255.

The Revised Rule also amends a series of unrelated regulations to conform with

the Revised Rule. The Revised Rule erases not only existing protections for LGBTQ people in
the 2016 Final Rule, but eliminates such protections in other regulations, which were
promulgated pursuant to the authority granted by several different statutes, including Section
1321(a) and the provisions of the ACA, Social Security Act, and other statutory authority, not
Section 1557.
256.

The Revised Rule also eliminates notice requirements and access to language

protections, undermining the ACA’s central purpose to ensure individuals have access to health
care and health insurance.

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257.

The Revised Rule therefore is “in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right” in violation of the APA. 5 U.S.C. § 706(2)(C).
258.

Defendants’ violations cause ongoing harm to plaintiffs, their patients, the

individuals they serve, and their members.
FOURTH CLAIM FOR RELIEF
Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(B)
and U.S. Constitution, Fifth Amendment, Equal Protection Component
259.

Plaintiffs repeat and incorporate by reference each allegation of the prior

paragraphs as if fully set forth herein.
260.

Under the APA, a court must “hold unlawful and set aside agency action” that is

“contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B).
261.

The Fifth Amendment’s Due Process Clause provides that no person shall be

deprived of life, liberty, or property without due process of law.
262.

The Due Process Clause includes within it a prohibition against the denial of

equal protection of the laws by the federal government, its agencies, or its officials or employees.
263.

The purpose and effect of the Revised Rule are to discriminate against plaintiffs,

their patients, the individuals they serve, and their members based on their sex, gender identity,
transgender status, gender nonconformity, and exercise of their fundamental rights, including the
rights to bodily integrity and autonomous medical decision-making, and the rights to live and
express oneself consistent with one’s gender identity.
264.

The Revised Rule also is intended to have and will have a disproportionate impact

on LGBTQ people. The Revised Rule places an impermissible special burden on these
individuals.

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265.

LGBTQ people have suffered a long history of discrimination and continue to

suffer that discrimination. They are part of discrete and insular groups and lack the power to
protect their rights through the political process.
266.

Transgender people have a gender identity that differs from the sex assigned to

them at birth. A person’s gender identity is a core, defining trait fundamental to a person’s sense
of self and personhood.
267.

Requiring a person to abandon their gender identity as a condition to equal

treatment violates the Equal Protection Clause.
268.

Discrimination on the basis of sex, including on the basis of gender identity,

transgender status, sexual orientation, and failure to conform to sex stereotypes, is presumptively
unconstitutional and subject to heightened scrutiny.
269.

Similarly, discrimination based on the exercise of a fundamental right is

presumptively unconstitutional and is subject to strict scrutiny.
270.

The Revised Rule lacks a rational or legitimate justification, let alone the

important or compelling one that is constitutionally required. The Revised Rule also lacks
adequate tailoring under any standard of review.
271.

Defendants’ encouragement of discrimination against LGBTQ people deprives

LGBTQ people of their right to equal dignity and stigmatizes them as second-class citizens.
272.

The Revised Rule therefore violates the Equal Protection Clause of the Fifth

Amendment of the U.S. Constitution and must be set aside under the APA and the Fifth
Amendment.
273.

Defendants’ violations cause ongoing harm to plaintiffs, their patients, the

individuals they serve, and their members.

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FIFTH CLAIM FOR RELIEF
Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(B)
and U.S. Constitution, Fifth Amendment, Substantive Due Process
274.

Plaintiffs repeat and incorporate by reference each allegation of the prior

paragraphs as if fully set forth herein.
275.

Under the APA, a court must “hold unlawful and set aside agency action” that is

“contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B).
276.

The Fifth Amendment’s Due Process Clause protects individuals’ substantive

rights to be free to make certain decisions central to privacy, bodily autonomy, integrity, selfdefinition, intimacy, and personhood without unjustified governmental intrusion. Those
decisions include the right to transition-related medical treatment, as well as the right to live
openly and express oneself consistent with one’s gender identity.
277.

By encouraging health care providers and insurers to interfere with and unduly

burden patients’ access to medically necessary health care, the Revised Rule violates the rights
of plaintiffs to privacy, liberty, dignity, and autonomy as guaranteed by the Fifth Amendment.
278.

A person’s gender identity and ability to live and express oneself consistent with

one’s gender identity without unwarranted governmental interference is a core aspect of each
person’s autonomy, dignity, self-definition, and personhood. By encouraging health care
providers and insurers to deny or otherwise interfere with individuals’ access to gender-affirming
medical care, including surgical procedures, hormone therapy, and other medically necessary
care, and by interfering with the ability of transgender and gender-nonconforming individuals to
live and express themselves in accordance with their gender identities, the Revised Rule
infringes on patients’ interests in privacy, liberty, dignity, and autonomy protected by the Fifth
Amendment.

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279.

There is no legitimate interest supporting the Revised Rule’s infringement on

patients’ fundamental rights, let alone an interest that can survive the elevated scrutiny required
to justify infringement of these fundamental rights.
280.

The Revised Rule therefore violates the Due Process Clause of the Fifth

Amendment of the U.S. Constitution and must be set aside under the APA and the Fifth
Amendment.
281.

Defendants’ violations cause ongoing harm to plaintiffs, their patients, the

individuals they serve, and their members.
SIXTH CLAIM FOR RELIEF
Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(B)
and U.S. Constitution, First Amendment, Free Speech
282.

Plaintiffs repeat and incorporate by reference each allegation of the prior

paragraphs as if fully set forth herein.
283.

Under the APA, a court must “hold unlawful and set aside agency action” that is

“contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B).
284.

The Free Speech Clause of the First Amendment to the United States Constitution

declares: “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const.
amend. I. The Free Speech Clause prohibits the government from “chilling” a person’s right to
free expression.
285.

A person’s disclosure of their transgender or gender nonconforming status, speech

or expression that discloses gender identity, and a person’s gendered speech and expressive
conduct all receive constitutional protection under the First Amendment.
286.

The Revised Rule has the purpose and effect of chilling constitutionally protected

First Amendment activity. As a result of the Revised Rule, an increased number of LGBTQ

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people will remain closeted in health care settings and to doctors, nurses, and other healthcare
providers and will decline to disclose their sexual orientation, transgender status, or gender
identity.
287.

Further, an increased number of LGBTQ people will decline to engage in

gendered speech and expression, including by declining to disclose related medical histories—
even when that self-censorship impedes the ability of their health care providers to provide
appropriate treatment and results in negative health consequences to the patients and to public
health.
288.

The Revised Rule will chill a patient of ordinary firmness from making such

disclosures.
289.

The Revised Rule violates the Free Speech Clause of the First Amendment

because it impermissibly burdens the exercise of patients’ constitutionally protected speech,
expression and expressive conduct based on the content and viewpoint of patients’ speech.
290.

In addition, the Revised Rule is overbroad because it will chill protected First

Amendment activity.
SEVENTH CLAIM FOR RELIEF
Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(B)
and U.S. Constitution, First Amendment, Establishment Clause
291.

Plaintiffs repeat and incorporate by reference each allegation of the prior

paragraphs as if fully set forth herein.
292.

Under the APA, a court must “hold unlawful and set aside agency action” that is

“contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B).
293.

The Establishment Clause of the First Amendment to the United States

Constitution declares: “Congress shall make no law respecting an establishment of religion.”

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U.S. Const. amend. I. The Establishment Clause prohibits the government from favoring one
religion over another, or religion over nonreligion.
294.

The Establishment Clause permits the government to provide religious

accommodations or exemptions from generally applicable laws only if, among other
requirements, the accommodation (1) lifts a substantial, government-imposed burden on the
exercise of religion, and (2) does not shift substantial costs or burdens onto a discrete class of
third parties, without regard for the third parties’ interests. In other words, the government may
“accommodate” religion in accordance with the Free Exercise Clause, but it may not “promote”
religion.
295.

The Revised Rule violates the Establishment Clause by creating expansive

religious exemptions for health care providers, plans, and employees at the expense of third
parties – namely, plaintiffs, other providers, and most importantly the patients and the
individuals whom plaintiffs serve. It invites health care providers, including insurance
companies, hospitals, doctors, and nurses, to deny LGBTQ patients necessary medical treatment
based on their religious beliefs.
296.

The effect of the Revised Rule will be that patients who seek care at odds with the

religious beliefs of a health care provider or employee of a health care provider may be delayed
in receiving care (including emergency care) or denied care altogether.
297.

The Revised Rule also will burden plaintiffs by precluding them from carrying

out their organizational missions based solely on the religious views of a single employee.
298.

In addition, plaintiffs will be harmed because their ability to refer LGBTQ

patients to other providers will be affected in that they will not know whether these providers
will discriminate against their patients and/or refuse to treat their patients under the Revised

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Rule’s personal religious or moral belief exemptions. Plaintiffs thus will be required to redirect
their staff and resources from providing their own services to assisting patrons in determining
who among the health care providers in the region will serve LGBTQ patients in a
nondiscriminatory manner.
299.

The Revised Rule violates the Establishment Clause because it:
(a)

has the primary purpose and effect of favoring, preferring, and endorsing
certain religious beliefs and certain religious denominations over others
and over nonreligion;

(b)

has the primary purpose and effect of preferring the religious beliefs of
some people and institutions over the lives, health, and other rights and
interests of third parties;

(c)

impermissibly entangles government with religion;

(d)

makes plaintiffs, their patients, and other third parties bear the costs and
harms of objecting employees’ religious beliefs or religious exercise; and

(e)

imposes on plaintiffs a requirement to accommodate employees’ religious
objections without taking constitutionally required account of the actual
burdens (if any) on the objectors or the effects on or harms to plaintiffs,
their patients, or the greater public health.

300.

Those who are denied coverage will suffer the stigma of government-sanctioned

discrimination. They also will be forced to either endure significant psychological burdens or, if
they can afford it, pay for treatment out-of-pocket. The Revised Rule favors religion at the
expense of LGBTQ patients without regard for LGBTQ patients’ interests. The Revised Rule
contains no provision for balancing or accounting for a patient’s right to care. Instead, it applies

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categorically to deny patients the right to medical treatment based on a provider’s religious or
moral beliefs.
301.

The Revised Rule therefore violates the Establishment Clause of the First

Amendment of the U.S. Constitution and must be set aside under the APA and the Establishment
Clause.
302.

Defendants’ violations cause ongoing harm to plaintiffs, their patients, the

individuals they serve, and their members.
EIGHTH CLAIM FOR RELIEF
Equitable Relief to Preserve Remedy
303.

Plaintiffs repeat and incorporate by reference each allegation of the prior

paragraphs as if fully set forth herein.
304.

The Revised Rule will become effective on August 18, 2020 unless it is enjoined.

Plaintiffs are entitled to a full, fair, and meaningful process to adjudicate the lawfulness of the
Revised Rule before being required to implement its far-reaching and harmful requirements.
305.

Plaintiffs will suffer irreparable injury by implementation of the Revised Rule,

which would erode hard-won trust between LGBTQ people and their health care providers,
stigmatize and traumatize patients, interfere with medical procedures and operations, and result
in delays and denials of care leading to physical harm and even death. Preliminary and
permanent injunctive relief is needed to ensure that plaintiffs’ injuries are fully remedied.
306.

Injunctive relief also is needed to prevent the immediate harm resulting from the

Revised Rule. Patients need assurance that they will receive complete, accurate information and
timely and responsive medical care in an environment that protects their constitutional rights and
does not expose them to stigma and harm. This Court should step in to protect plaintiffs’
institutions, their patients, the individuals they serve, and their members, in addition to the

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foremost principle guiding medical providers in responding to those in need of assistance and
care – first, do no harm.
307.

Accordingly, to ensure that plaintiffs receive meaningful relief should they prevail

in this action, the Court should preliminarily and permanently enjoin defendants from
implementing the Revised Rule.
REQUEST FOR RELIEF
Wherefore, plaintiffs pray that the Court grant the following relief:
A. Declare that the Revised Rule is unlawful and unconstitutional through a declaratory
judgment under 28 U.S.C. § 2201(a) and 5 U.S.C. § 706(a);
B. Set aside and vacate the Revised Rule;
C. Preliminarily and permanently enjoin the implementation and enforcement of the
Revised Rule;
D. Award reasonable attorneys’ fees, costs, and expenses; and
E. Award any other further and additional relief the Court deems just and proper.

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Dated: June 22, 2020

Respectfully submitted,

LAMBDA LEGAL DEFENSE
AND EDUCATION FUND, INC.

STEPTOE & JOHNSON LLP

By: /s/ Omar Gonzalez-Pagan

By: /s/ Johanna Dennehy

OMAR GONZALEZ-PAGAN*
[e-mail]
KAREN LOEWY*
[e-mail]
CARL S. CHARLES*
[e-mail]
LAMBDA LEGAL DEFENSE
AND EDUCATION FUND, INC.
120 Wall Street, 19th Floor
New York, NY 10005
Phone: [phone]
Fax: [phone]

LAURA (LAURIE) J. EDELSTEIN*
[e-mail]
STEPTOE & JOHNSON LLP
One Market Plaza
Spear Tower, Suite 3900
San Francisco, CA 94105
Phone: [phone]
Fax: [phone]
MICHAEL VATIS
(D.C. Bar No. 422141)
[e-mail]
KHRISTOPH A. BECKER*
[e-mail]
STEPTOE & JOHNSON LLP
1114 Avenue of the Americas
New York, NY 10036
Phone: [phone]
Fax: [phone]

JAMIE A. GLIKSBERG*
[e-mail]
LAMBDA LEGAL DEFENSE
AND EDUCATION FUND, INC.
105 West Adams, 26th Floor
Chicago, IL 60603
Phone: [phone]
Fax: [phone]
* Motion for admission pro hac vice pending.
** Application for admission to U.S. District
Court for the District of Columbia forthcoming.

JOHANNA DENNEHY
(D.C. Bar No. 1008090)
[e-mail]
LAURA LANE-STEELE**
[e-mail]
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue NW
Washington, DC 20036
Phone: [phone]
Fax: [phone]

Counsel for Plaintiffs

83