[co-author: Paulette Hall, Stephanie Kozol*]
Tennessee and Mississippi attorney generals (AG), joined by 13 other states, filed a multistate lawsuit in the Southern District of Mississippi. The lawsuit challenges the U.S. Department of Health and Human Services’ (HHS) attempt to expand the breadth of the Affordable Care Act’s (ACA) antidiscrimination provision, known as Section 1557. This section prohibits discrimination on the basis of sex. HHS’ new rule, which is scheduled to take effect on July 5, extends the definition of sex to encompass gender identity. The AGs argue that HHS’ expansion of the ACA provision will have undesirable effects on the medical industry. They claim that the promulgation of this new rule is also unconstitutional and interferes with states’ reserved powers.
The objecting states take issue with certain aspects of the new rule, including requirements that: medical providers to perform surgeries and administer hormone drugs to both children and adults for the purpose of gender transition, without regard for a doctor’s medical judgment as to whether that treatment was appropriate; patients must be allowed into sex-segregated spaces based on their gender identity rather than their biological sex; every health care worker must use gender-affirming pronouns and covered entities must discipline providers for using biologically accurate pronouns when not preferred by the patient.
In an 83-page complaint, the AGs suggest that HHS’ new rule will impact health care because noncompliance could subject the covered entities and states to the loss of billions of dollars in federal funding. The states are also concerned that the rule could lead to substantial exposure and use of resources in the form of private civil litigation. The AGs fear the impact that HHS’ new rule may have on medical accuracy, suggesting that practitioners will act out of fear of noncompliance rather than in the best medical interest of the patient. Additionally, the new rule would run contrary to legislation passed in states like Mississippi, which prohibit a person from providing gender transition care and procedures to those under the age of 18.
Why It Matters
Many states are analogizing HHS’ new rule to a similar 2016 rule under the ACA, which was previously struck down by a federal district court. The court has yet to decide on this provision, but a holding in the HHS’ favor could have precedential effects on the scope of states’ right to regulate the practice of medicine. If it moves forward, the new rule could have a significant impact on the business practices of health care providers. The challenge by the AGs will test the scope of executive power to push new rules which run contrary to state law in the health care industry.
*Senior Government Relations Manager
