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The nondiscrimination provision of the ACA prohibits discrimination based on race, color, national origin, sex, disability, or age by health programs or facilities that receive federal funds. The Trump Administration is seeking to undermine many of those protections.

Minnesota Attorney General Keith Ellison today joined a coalition of 23 attorneys general in filing a lawsuit to block a new Trump Administration rule that makes it easier for health care providers and insurance companies to discriminate against certain vulnerable and protected classes of Americans. In a lawsuit filed against the U.S. Department of Health and Human Services (HHS) and others, Ellison and the coalition argue that the new rule emboldens providers and insurers to discriminate against LGBTQ+ individuals, those with limited English proficiency, and women. The rule does so by stripping express protections for these groups in HHS regulations that implement the nondiscrimination provision of the Patient Protection and Affordable Care Act (ACA).

The nondiscrimination provision of the ACA prohibits discrimination based on race, color, national origin, sex, disability, or age by health programs or facilities that receive federal funds. The Trump Administration is seeking to undermine many of those protections.

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Minnesota Attorney General Keith Ellison.

“As the worst pandemic in a century gets even worse, the Trump Administration is once again showing Minnesotans that it’s willing to sacrifice the health and health care of folks they just don’t care about,” Ellison said. “We asked them not to go ahead with this, and they did anyhow. When the federal government abandons its duty to protect all Minnesotans — no exceptions — it’s my job as Attorney General to step in and hold them accountable. So today, I took them to court.”

Before filing today’s lawsuit, Ellison and the coalition twice called upon the Trump Administration to withdraw the rule, in August 2019 and April 2020.

In 2016, the Obama Administration’s HHS issued regulations implementing Section 1557 that clarified that discrimination on the basis of gender identity, nonconformity to sex stereotypes, and pregnancy status are forms of sex discrimination prohibited by the statute. Specifically, Section 1557 prohibits discrimination by any health care program receiving federal financial assistance — including providers and insurers — against individuals on the basis of race, color, national origin, sex, disability, or age. Federal courts have also held that the statute’s prohibitions on sex discrimination protect transgender and other LGBTQ+ individuals from discrimination. This view was confirmed in last month’s Supreme Court decision in Bostock v. Clayton County, which held that discrimination based on sexual orientation and transgender status are forms of sex discrimination prohibited by federal civil-rights law.

But, despite numerous failed legislative and legal battles to repeal and dismantle the ACA, the Trump Administration’s new rule would now eliminate many of the express protections contained in the Section 1557 regulations, unlawfully exclude many health insurers from Section 1557’s scope, and would embolden health care providers and health insurers to deny care and insurance coverage. The new rule would also impose unreasonable barriers and impede timely access to health care for Americans, in violation of Section 1554 of the ACA.

In the lawsuit filed today in the U.S. District Court for the Southern District of New York, Ellison and the coalition argue that HHS has unlawfully ignored the harms that the new rule will impose on vulnerable populations, including LGBTQ+ individuals, individuals with limited English proficiency, and women, as well as other protected classes. The coalition additionally contends that HHS has failed to justify why it abandoned its prior policy, which among other things explicitly prohibited discrimination in health care and required health entities to provide meaningful language assistance services to individuals with limited English proficiency, including by notifying them of their rights to translation and interpretation services. The lawsuit finally alleges that the Trump Administration was motivated by animus toward the transgender community in issuing this rule.

The coalition specifically argues that the new rule is arbitrary, capricious, and contrary to law under the Administrative Procedure Act (APA), and that it violates the equal protection guarantee of the Fifth Amendment.

In filing today’s lawsuit, Ellison joins New York Attorney General Letitia James, California Attorney General Xavier Becerra, and Massachusetts Attorney General Maura Healey, who co-led the lawsuit, and the attorneys general of Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Michigan, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Wisconsin.

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