On August 17, 2020, a New York federal court granted a preliminary injunction blocking the U.S. Department of Health and Human Services (“HHS”) from rolling back anti-discrimination protections for LGBTQ patients. On June 12, 2020, HHS issued new rules governing health programs administered by federal agencies or with the help of federal financial assistance. Specifically, HHS repealed Obama-era rules that prohibited discrimination against gay and transgender patients by narrowing the definition of “sex” to encompass only “the biological binary of male and female that human beings share with other mammals.” The new rules, to borrow HHS’s phrasing, “explicitly disavow[ed]” any definition of “sex” that barred discrimination on the basis of gender identity or gender stereotyping, thereby resolving any doubt as to the agency’s intentions.
On June 15, 2020, the U.S. Supreme Court issued its landmark decision in Bostock v. Clayton County, which interpreted Title VII’s definition of “sex” to prohibit workplace discrimination on the basis of sexual orientation and gender identity. In a 26-page decision, Senior District Judge Frederic Block of the Eastern District of New York ruled that HHS finalized its 2020 rules without addressing the impact of Bostock, making it likely that the rules will be deemed arbitrary and capricious. HHS’s seemingly deliberate choice to issue the 2020 rules three days before the Bostock decision was not lost on Judge Block, either: “The timing might even suggest to a cynic that the agency pushed ahead specifically to avoid having to address an adverse decision.”
While not yet final, the preliminary injunction represents a major win for all LGBTQ Americans. Moreover, it underscores the wide-ranging impact of Bostock, which reaches far beyond the employment context.
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About Alex Hartzband
Alex Hartzband's practice is focused on employment litigation. Alex is a senior associate in the firm's New York office.