Seven states file lawsuit to block Biden's new transgender anti-discrimination rule

Missouri Attorney General Andrew Bailey (R) and six other states are suing to prevent the implementation of a federal rule that extends nondiscrimination rules to transgender people. The lawsuit follows a federal judge who ruled preliminary injunction last week in a separate federal case challenging the rule.

“Joe Biden is once again overstepping his legal authority to force his radical transgender ideology on the American people,” Bailey wrote in a press release. “His administration is threatening to hold federal funding hostage to any health care provider who refuses to perform or affirm harmful and irreversible transgender procedures.”

In May, the Department of Health and Human Services (HHS) unveiled a final set of sweeping changes to Section 1557, the nondiscrimination provision of the Affordable Care Act (ACA). The changes expand the definition of sex discrimination in the rule to include discrimination based on sexual orientation and gender identity. Under the rule, doctors and health insurers may not turn away patients or deny coverage for gender-affirming care.

If state health care services and plans fail to comply with this rule, they may be cut off from government-funded programs such as Medicare, Medicaid, and the Children's Health Insurance Program (CHIP).

The rule was set to go into effect July 5, but a federal judge in Mississippi granted a preliminary injunction in a lawsuit filed by 15 Republican states challenging the rule. Missouri's new lawsuit is the latest attempt to block the rule.

If the Mississippi ruling is overturned on appeal, a ruling in Missouri's favor would still prevent the rule from being implemented. Conflicting rulings in different circuits could also speed up the process of a case coming before the U.S. Supreme Court. Mississippi is in the Fifth Circuit, and Missouri is in the Eighth Circuit.

Arkansas, Idaho, Iowa, North Dakota, South Dakota and Utah have joined Missouri's new lawsuit.

“HHS threatens to punish physicians and states who fail to comply with its mandate by imposing massive financial penalties and excluding them from federally funded health care programs such as Medicare, Medicaid, and the Children's Health Insurance Program (CHIP),” the states write in the lawsuit. “This penalty would effectively prevent physicians and states from providing health care to the most vulnerable children in low-income communities.”

The states argue that there is no basis for expanding the ACA to protect transgender people. They complain that no such mandate was in place when they first received federal funds for Medicaid, Medicare and CHIP.

The Human Rights Campaign and the Biden administration have criticized previous efforts to prevent the rule from being implemented. HHS said the updated definition of sex discrimination in the rule is consistent with a 2020 Supreme Court ruling that protects employees from discrimination based on sexual orientation and gender identity.

“The discrimination that LGBTQ+ people will continue to face under this order is indefensible,” Kelley Robinson, president of the Human Rights Campaign, said of the July 3 order challenging the rule. “Everyone deserves access to the health care they need to be healthy and thrive. Instead, this court has sided with the fringe groups and politicians who seek to bully our community at every opportunity.”

Hill has contacted HHS for comment.

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