Federal agencies act to challenge LGBTQ rights

The U.S. Supreme Court’s blockbuster decision in Bostock v. Clayton County, extending the protections against discrimination under Title VII of the Civil Rights Act of 1964 to LGBTQ individuals, hasn't deterred a number of federal agencies from pursuing ways to advance a contrary position.

Up first: ACA and transgender individuals

Before the Bostock ruling, the U.S. Department of Health and Human Services (HHS) finalized a rule that would bar transgender individuals from certain protections under the Affordable Care Act (ACA). Because the ACA includes language protecting against sex discrimination in the same way as Title VII, many believed the rule would be an early test of the Trump administration’s response to the Court’s decision.

It’s now clear the administration is going to challenge all efforts to extend Bostock, and the HHS rule is the first opportunity. Several groups have already sued to stop enforcement of the rule, which would erase the ACA’s expansive view of “sex” under Section 1557, which includes transgender individuals. The agency was already defending a rule in court that would have granted religious discrimination protections to doctors and other workers who object to performing or participating in a patient’s care, which can include gender-affecting surgeries.

The HHS claims (1) Bostock doesn’t apply beyond the employment sphere, and (2) religious freedom requires a different outcome when it comes to health care.

What DOL and DOE are doing