Federal judge strikes down Trump regulation permitting transgender discrimination in health care

 After the Supreme Court issued Bostock v. Clayton County in June 2020, ruling for the first time that discrimination on the basis of sexual orientation and transgender status is a form of sex discrimination under Title VII of the Civil Rights Act, the civil rights community has wondered if that rationale extends beyond the employment discrimination context. A federal judge in Brooklyn says that it does, prohibiting the Trump administration from discriminating against transgender status under health programs governed by the Affordable Health Care Act, also known as Obamacare.

The case is Asapansa-Johnson v. Azar, 2020 WL 4749859 (E.D.N.Y. Aug. 17, 2020), issued by Judge Frederic Block. The Obama administration in 2016 issued a regulation that prohibited transgender discrimination in this area. The Trump administration issued new regulations that rejected the Obama administration's belief that transgender discrimination constitutes discrimination because of sex. This was consistent with the Trump administration's litigation position in the employment discrimination cases that reached the Supreme Court in 2019, consolidated in the Bostock ruling, which held in a 6-3 vote that transgender discrimination is a form of sex discrimination under Title VII. As Judge Block notes, the Bostock majority ruled that "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.'

In this case, the plaintiffs are both transgender and argue they were discriminated against in seeking medical treatment. They were mocked and refused treatment by healthcare professionals. This is why they want to strike down the 2020 regulations issued by the Trump administration. Judge Block agrees that the 2020 regulations are illegal because they authorize discrimination on the basis of sex in declining to protect patients from discrimination on the basis of their sexual identity. The Court applies the reasoning in Bostock to non-employment cases, i.e., health care discrimination. 

What it all means is that the court has stayed the 2020 regulations, which repeal the Obama-era 2016 regulations. The preliminary injunction is granted.