7 states sue to block new Biden transgender nondiscrimination rule

Missouri Attorney General Andrew Bailey (R) and six other states are suing to prevent the implementation of a federal rule that expands nondiscrimination rules to include transgender people. This lawsuit comes on the heels of a federal judge issuing a preliminary injunction last week against the rule in a separate federal case. 

“Joe Biden is once again exceeding his legal authority to force his radical transgender ideology onto the American people,” Bailey wrote in a press release. "His Administration is threatening to hold federal funding hostage from any healthcare provider that 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 rule’s definition of sex discrimination to include discrimination based on sexual orientation and gender identity. Under the rule, doctors and health insurance companies can not turn away patients or refuse coverage for gender affirming care.

If state health care services and plans fail to comply with this rule, their access to federally funded programs like Medicare, Medicaid and the Children’s Health Insurance Program (CHIP) could be cut off. 

The rule was supposed to go into effect July 5, but a Mississippi federal judge issued a preliminary injunction in a lawsuit filed by 15 Republican states against it. Missouri's new lawsuit is another attempt to block the rule. 

If the Mississippi ruling is overturned on appeal, a ruling in favor of Missouri would still prevent the rule from being implemented. Conflicting rulings in different circuits can also speed up the process of an issue appearing before the U.S. Supreme Court. Mississippi is in the 5th Circuit, and Missouri is in the 8th Circuit. 

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

“HHS threatens to punish doctors and States who do not comply with the mandate by imposing huge financial penalties and excluding them from federally funded healthcare programs like Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP),” the states wrote in the lawsuit. "This punishment would effectively preclude doctors and States from providing healthcare for the most vulnerable children in low-income communities.”

The states argue there is no basis for extending the ACA to protect transgender people and complained that there was no such mandate when they began receiving federal funds for Medicaid, Medicare and CHIP.

The Human Rights Campaign and the Biden administration have blasted previous attempts to prevent this rule from being implemented, with the HHS saying that the rule’s updated definition of sex discrimination is in line with a 2020 Supreme Court decision protecting employees from discrimination based on sexual orientation and gender identity. 

“The discrimination LGBTQ+ people will continue to experience under this injunction is indefensible,” Human Rights Campaign President Kelley Robinson said on the July 3 injunction against the rule. “Everyone deserves access to the medical care they need to be healthy and thrive. Instead, this court has sided with the fringe groups and politicians who want to bully our community at every opportunity.” 

The Hill reached out to HHS for comment.