Thread by @LambdaLegal

⚖️ COMING UP: Today we'll be in (virtual) court, arguing for a preliminary injunction to block the Trump administration's new anti-trans health care rule. Tune in here for highlights! #StopTheRule #ProtectTransHealth

Case is Whitman-Walker v. HHS, argued at US District Court for DC.

We're co-counsel with @SteptoeLLP, repping @whitmanwalker, @TransLatina_C & its members, @LALGBTCenter, @GLMA_LGBTHealth, @AglPsychiatry, Bradbury-Sullivan LGBT Center & 4 doctors.
More:
lambdalegal.org/in-court/cases…

Q: What's at stake?
A: A LOT!

The rule seeks to exclude LGBTQ people and other vulnerable populations from protections under Section 1557 of the Affordable Care Act. It is set to go into effect August 18, 2020.

Hear more from our clients:

https://twitter.com/LambdaLegal/status/1284201236154085377?s=20

Senior Attorney and the Health Care Strategist at Lambda Legal @omargp is explaining our clients' standing.

The rule will have real costs for LGBTQ people, particularly transgender people.

.@omargp makes reference to our declaration from the @TrevorProject, which illustrates the fear expressed by young LGBTQ callers as a direct result of the rule's announcement.

Read it here: lambdalegal.org/in-court/legal…

Lambda Legal as represented by @omargp will handle claims regarding standing and constitutional claims in court today.

Laurie Edelstein from @SteptoeLLP Steptoe will handle the merits.

Court asks how new injunction could help here, referring to an existing injunction against a similar rollback.

@omargp says the 2016 injunction (Franciscan Alliance) only enjoined a "very limited" part of the rule. Recent decision in Bostock would override that.

Court asks @omargp to explain irreparable harm, citing difficulties, but needing more detail on how specifically that is irreparable.

Denial of health care is an irreparable harm. There is colossal risk to public health provided by doing so.

.@omargp notes that the extension of additional resources to complement coverage is not recoverable by providers.

Patients unable to obtain medically necessary care -- that delay or denial of care is irreparable.

The fear of discrimination in the health care setting is well-noted and documented in countless studies on LGBTQ people and other marginalized groups. It leads directly to a lack of access to care. The newly-revised rule further drives this.

Court asks about the irreparable harm caused by allowing for religious exemptions. Why couldn't a patient effectively choose another provider?

Omar: First, not every hospital announces they are affiliated with a religious entity.

The reality is that more than 1/6 hospital beds in the USA are found in Catholic-affiliated hospitals. We cannot allow 1/6 hospital beds to become potentially unavailable to LGBTQ people.

We would argue that this revised rule creates a massive problem, erecting a barrier to care. This is a flaw that permeates throughout the revised rule. Co-counsel will explain further arguing on the merits.

Omar refers to the AARP brief in our case, which speaks to the intersectional discrimination faced by elder LGBTQ people.
Read it here: aarp.org/content/dam/aa…

Laurie Edelstein is up from Steptoe, to argue on the merits.

Court asks about the language provided in the revised rule. They don't say you can discriminate on the basis of sex & gender identity, they just don't say anything about it.

In this case, we had a rule in place (2016 final rule) which provided specific guidance to healthcare providers about the scope of discrimination protections.

HHS repealed and eliminated these definitions, effectively taking a stance against those protections.

The change in HHS policy rested in the government's position in Bostock.

But the Supreme Court repudiated that position in the Bostock decision. HHS published the rule without acknowledging Bostock decision.

Court: "If you lost on gender identity, wouldn't you be out of luck on sex stereotyping?"

Edelstein: The same reasoning applies.

Court asks again about Franciscan Alliance decision.

Edelstein explains that this district court opinion went against the fairly uniform body of case-law that exists on "basis of sex" interpretations. HHS leaned almost entirely on this decision in the revised rule's preamble.

In the time between announcing and publishing the rule, HHS appears to still continue to rely on Franciscan Alliance without acknowledging the effect of Bostock on the decision.

Note for non-lawyers/not-as-familiar folks: Bostock was the Supreme Court decision that confirmed interpretation of protections at work "on the basis of sex" to include sexual orientation and/or gender identity. lambdalegal.org/blog/20200615_…

Edelstein: One of our big concerns is the confusion that we now have--we submitted declarations showing increased anxiety from LGBTQ people expressing concern and fear about the lack of clarity. The reasoning is sound.

.@omargp speaks up to cite a separate decision in California v. Azar ACA case: "Economic harms may be irreparable because plaintiffs are unable to recover monetary damages."

DOJ Counsel William Lane is up. Debating questions of third-party standing with the Court with regards to organizations in this case.

DOJ is contesting standing, saying that it's questionable to assume that identifiable patients will seek care through the named organizations.

MANY LGBTQ patients know too well the importance of seeking out care at a facility where you will be respected.

Opposing counsel says: "Bostock was decided last month", asserting that we simply don't have a lot of existing precedent applying Bostock.

Counsel says we are asking for additional agency action. Submits that we need to look at the rule the time HHS completed it, before Bostock.

DOJ says that we are "assuming" based on wording in rule preamble that HHS will have a policy moving fwd. Says we need to wait, see how it will be applied.

... Preamble explicitly says HHS takes the position that ‘sex’ in Title IX refers to a “biological binary meaning of sex."

Laure Edelstein of our co-counsel at Steptoe is back up.

In the preamble, the government actually takes the position on what the scope of 1557, what is covered and what is not.

The harm can be addressed by the enjoining of the rule.

Court offers the DOJ 1 week to submit a reply on the issues of standing and irreparable harm. They accept. Due August 10th.

Says he cannot have an opinion out before August 18th (day the rule goes into effect.) Hopefully will be out within 2 weeks of the DOJ's final briefing.