CLOSED
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:20-cv-01105-JLR

State of Washington v. United States Department of Health and Human Services et al Assigned to: Judge James L. Robart Cause: 05:551 Administrative Procedure Act

Date Filed: 07/16/2020 Date Terminated: 09/09/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff State of Washington

represented by Brian J Sutherland ATTORNEY GENERAL'S OFFICE (SEATTLE) 800 FIFTH AVENUE STE 2000 SEATTLE, WA 98104 206-521-3215 Fax: 206-587-4229 Email: brian.sutherland@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marsha J. Chien OFFICE OF THE ATTORNEY GENERAL 800 FIFTH AVENUE, SUITE 2000 SEATTLE, WA 98104 206-464-7744 Email: marshac@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neal Harold Luna ATTORNEY GENERAL'S OFFICE (SEA- FIFTH AVE) 800 5TH AVE STE 2000

SEATTLE, WA 98104-3188 206-326-5481 Email: neal.luna@atg.wa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant United States Department of Health and Human Services
Defendant Alex M Azar in his official capacity as the Secretary of the United States Department of Health and Human Services
Amicus Northwest Health Law Advocates

represented by Liam Holland US DEPARTMENT OF JUSTICE (CIVIL- FEDERAL PROGRAMS BRANCH) 1100 L STREET NW WASHINGTON, DC 20530 202-514-4964 Email: liam.c.holland@usdoj.gov ATTORNEY TO BE NOTICED
William Kerwin Lane , III DOJ-CIVIL DIVISION 950 PENNSYLVANIA AVE NW STE MAIN 3138 WASHINGTON, DC 20530 202-305-7920 Email: william.lane2@usdoj.gov ATTORNEY TO BE NOTICED
represented by Liam Holland (See above for address) ATTORNEY TO BE NOTICED
William Kerwin Lane , III (See above for address) ATTORNEY TO BE NOTICED
represented by Eleanor Hamburger SIRIANNI YOUTZ SPOONEMORE HAMBURGER 3101 WESTERN AVENUE STE 350 SEATTLE, WA 98121

Amicus C. P. by and through his parents, P.P. and N.P.
Amicus M. D. by and through her parents, C.D. and A.D.
Amicus House of Representatives

206-223-0303 Fax: 206-223-0246 Email: ehamburger@sylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janet Varon NORTHWEST HEALTH LAW ADVOCATES 4759 15TH AVE NE STE 305 SEATTLE, WA 98105 206-325-6464 Email: janet@nohla.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eleanor Hamburger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janet Varon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eleanor Hamburger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janet Varon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas Neal Letter US HOUSE OF REPRESENTATIVES OFFICE OF GENERAL COUNSEL 219 CANNON HOUSE OFFICE BLDG

Amicus Local Governments City of Everett, King County and Public Health, Seattle & King County, the City of Seattle, and Tacoma, Washington
Amicus National Health Law Program et al.

WASHINGTON, DC 20515 202-225-9700 Email: douglas.letter@mail.house.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lorraine Alofa Van Kirk OFFICE OF THE COUNTY COUNSEL 70 W HEDDING ST 9TH FLOOR SAN JOSE, CA 95110 408-299-5944 Fax: 408-292-7240 Email: lorraine.van_kirk@cco.sccgov.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erica R. Franklin SEATTLE CITY ATTORNEY'S OFFICE 701 FIFTH AVENUE SUITE 2050 SEATTLE, WA 98104-7097 206-733-9309 Email: erica.franklin@seattle.gov ATTORNEY TO BE NOTICED
represented by Abigail Coursolle NATIONAL HEALTH LAW PROGRAM 3701 WILSHIRE BLVD STE 750 LOS ANGELES, CA 90010 310-736-1652 Email: coursolle@healthlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric D Lowney SMITH & LOWNEY PLLC

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2317 E JOHN ST SEATTLE, WA 98112 206-860-2883 Email: knoll@smithandlowney.com ATTORNEY TO BE NOTICED
Docket Text
COMPLAINT against All Defendants (Receipt # AWAWDC6469413), filed by State of Washington. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons)(Luna, Neal) (Entered: 07/16/2020)
NOTICE of Appearance by attorney Marsha J. Chien on behalf of Plaintiff State of Washington. (Chien, Marsha) (Entered: 07/16/2020)
NOTICE of Appearance by attorney Brian J Sutherland on behalf of Plaintiff State of Washington. (Sutherland, Brian) (Entered: 07/16/2020)
MOTION for Preliminary Injunction , filed by Plaintiff State of Washington. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 8/7/2020, (Chien, Marsha) (Entered: 07/16/2020)
INDEX LIST re 4 MOTION for Preliminary Injunction re 6
Declaration; 7 Declaration; 8 Declaration; 9
Declaration; 10 Declaration; 11 Declaration; 12
Declaration; 13 Declaration; 14 Declaration; 15
Declaration; 16 Declaration; 17 Declaration; 18
Declaration; 19 Declaration; 20 Declaration; 21
Declaration; 22 Declaration Declaration Index List by Plaintiff State of Washington (Chien, Marsha) Modified on 7/20/2020. Added links to declaration(s) and updated title to more accurately reflect the type of pleading filed. (ST) (Entered: 07/16/2020)

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DECLARATION of Karter Booher filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of David Iseminger filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of Brandon Knox filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of Beth Krehbiel filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of Myron Bradford Mike Kreidler filed by
Plaintiff State of Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of Everett Maroon filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of Jason McGill filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of Bill Moss filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of Thea N. Mounts filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)

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DECLARATION of Kathy L. Oline filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of David Reed filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of Michele Roberts filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of Kenneth Shulman filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of Jessica Todorovich filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of Dr. Chelsea Unruh filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of Elayne Wylie filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
DECLARATION of Daniel Zeitlin filed by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Chien, Marsha) (Entered: 07/16/2020)
CERTIFICATE OF SERVICE by Plaintiff State of Washington (Luna, Neal) (Entered: 07/17/2020)
Judge James L. Robart added. (ST) (Entered: 07/20/2020)
Summons(es) Electronically Issued as to defendant(s) Alex M Azar, United States Department of Health and Human Services (Attachments: # 1 Summons)(ST) (Entered: 07/20/2020)

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CERTIFICATE OF SERVICE re summons; served upon Defendants via certified mail; sent on 7/20/2020 by Plaintiff State of Washington (Luna, Neal) Modified on 7/21/2020 to include party and date summons mailed (PM). (Entered: 07/20/2020)

NOTICE TO FILER: re 1 Complaint. Notice of Filing Deficiency ** Action Required ** See attached letter for more information and instructions. Notice of Related Case must be filed by 7/27/2020.

(ST) Modified on 7/21/2020. See docket 27 07/20/2020)

. (ST) (Entered:

NOTICE TO FILER: re 1 Complaint. ** Reminder** Documents omitted See attached letter for more information and instructions. NOTE: Please disregard 26 Notice to Filer as it did not include the correct instructions. (ST) (Entered: 07/21/2020)
***Deadlines/Hearings terminated re [26} Notice to Filer. (ST) (Entered: 07/21/2020)
NOTICE of Pendency of Other Action ; filed by Plaintiff State of Washington. (Luna, Neal) (Entered: 07/21/2020)
CERTIFICATE OF SERVICE by Plaintiff State of Washington
re 28 Notice of Pendency of Other Action (Luna, Neal) (Entered: 07/22/2020)
MOTION for Leave Motion For Expedited Leave To File Amicus Curiae Brief, filed by Amicus Parties Northwest Health Law
Advocates, C. P., M. D.. (Attachments: # 1 Appendix A, # 2 Proposed Order) Noting Date 8/7/2020, (Hamburger, Eleanor) (Entered: 07/29/2020)
DECLARATION of Eleanor Hamburger filed by Amicus Parties M. D., Northwest Health Law Advocates, C. P. re 30
MOTION for Leave Motion For Expedited Leave To File Amicus Curiae Brief (Hamburger, Eleanor) (Entered: 07/29/2020)

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Redacted DECLARATION of P.P. filed by Amicus Parties M. D.,
Northwest Health Law Advocates, C. P. re 30 MOTION for Leave Motion For Expedited Leave To File Amicus Curiae Brief (Hamburger, Eleanor) (Entered: 07/29/2020)
Redacted DECLARATION of C.D. filed by Amicus Parties M. D.,
Northwest Health Law Advocates, C. P. re 30 MOTION for Leave Motion For Expedited Leave To File Amicus Curiae Brief (Hamburger, Eleanor) (Entered: 07/29/2020)
Attorney Eleanor Hamburger added as counsel for M. D.,
Northwest Health Law Advocates, and C. P. per 30 MOTION for Leave Motion For Expedited Leave To File Amicus Curiae Brief. (PM) (Entered: 07/29/2020)
DECLARATION of Janet Varon filed by Amicus Parties M. D.,
Northwest Health Law Advocates, C. P. re 30 MOTION for Leave Motion For Expedited Leave To File Amicus Curiae Brief (Hamburger, Eleanor) (Entered: 07/29/2020)
NOTICE that the following is RE-NOTED: 4 MOTION for Preliminary Injunction . Filed by Plaintiff State of Washington. Noting Date 8/14/2020, (Sutherland, Brian) (Entered: 07/29/2020)
NOTICE that the following is RE-NOTED: 30 MOTION for Leave Motion For Expedited Leave To File Amicus Curiae Brief. Filed by Amicus Parties M. D., Northwest Health Law Advocates, C. P.. Noting Date 8/14/2020, (Hamburger, Eleanor) (Entered: 07/29/2020)
DECLARATION of Service filed by Amicus Parties M. D.,
Northwest Health Law Advocates, C. P. re 30 MOTION for Leave Motion For Expedited Leave To File Amicus Curiae Brief (Hamburger, Eleanor) (Entered: 07/29/2020)
REQUEST for Remote Oral Argument Setting by Plaintiff State of
Washington re 4 MOTION for Preliminary Injunction (Sutherland, Brian) (Entered: 08/03/2020)

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Agreed MOTION for Leave to File Brief Amicus Curiae in Support of Plaintiff, filed by Amicus House of Representatives. (Attachments: # 1 Exhibit Proposed Brief Amicus Curiae, # 2 Proposed Order) Noting Date 8/3/2020, (Letter, Douglas) (Entered: 08/03/2020)
Attorney Douglas Neal Letter added as counsel for House of
Representatives per 39 Agreed MOTION for Leave to File Brief Amicus Curiae in Support of Plaintiff. (PM) (Entered: 08/04/2020)
NOTICE of Appearance by attorney Erica R. Franklin on behalf of Plaintiff Amicus Curiae Local Governments. (Franklin, Erica) (Entered: 08/05/2020)
APPLICATION OF ATTORNEY Lorraine Van Kirk FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff Amicus Curiae Local Governments (Fee Paid) Receipt No. AWAWDC-6511801 (Franklin, Erica) (Entered: 08/05/2020)
ORDER re 41 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Lorraine Alofa Van Kirk for Plaintiff Amicus Curiae Local Governments, by Clerk William M McCool. No document associated with this docket entry, text only. NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 08/05/2020)
NOTICE of Appearance by attorney Lorraine Alofa Van Kirk on behalf of Plaintiff Amicus Curiae Local Governments. (Van Kirk, Lorraine) (Entered: 08/07/2020)
MINUTE ORDER re Parties' 38 Joint Request for remote oral
argument setting re 4 MOTION for Preliminary Injunction : Motion Hearing set for 8/14/2020 at 02:00 PM via via Zoom videoconference before Judge James L. Robart. The State of Washington's reply brief on its motion for a preliminary injunction shall be due by 4:30 PM PDT on Thursday, August 13, 2020. Authorized by Judge James L. Robart. (LH) (Entered: 08/07/2020)
APPLICATION OF ATTORNEY Abigail Coursolle FOR LEAVE TO APPEAR PRO HAC VICE for Amicus National Health Law

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Program (Fee Paid) Receipt No. AWAWDC-6517541 (Hamburger, Eleanor) (Filed by Lowney, Eric)Modified on 8/10/2020 (DS). (Entered: 08/07/2020)
MOTION for Leave to File Amicus Curie Brief, filed by Plaintiff Amicus Curiae Local Governments. (Attachments: # 1 Proposed Order)(Van Kirk, Lorraine) (Entered: 08/07/2020)
Amicus Curiae BRIEF by Plaintiff Amicus Curiae Local Governments (Van Kirk, Lorraine) (Entered: 08/07/2020)
NOTICE of Appearance by attorney Eric D Lowney on behalf of Amicus National Health Law Program. (Lowney, Eric) (Entered: 08/10/2020)
ORDER granting Amici NoHLA, C.P., and M.D.'s 30 Motion for Leave Expedited Leave to File Amicus Curiae Brief. The amicus curiae brief of NoHLA, C.P., and M.D., shall be filed within one court day of this Order. Signed by Judge James L. Robart.(LH) (Entered: 08/10/2020)
ORDER granting Agreed Parties' 39 Motion for Leave to File Brief of U.S. House of Representatives as Amicus Curiae in support of Plaintiffs. Signed by Judge James L. Robart.(LH) (Entered: 08/10/2020)
ORDER granting Local Governments' 46 Motion for Leave to File Amicus Curiae Brief by Local Government. The amicus curiae brief of Local Government Amici shall be filed the date of this Order. Signed by Judge James L. Robart.(LH) (Entered: 08/10/2020)
Amici Curiae Northwest Health Law Advocates', C.P.'s and
M.D.'s BRIEF re 4 MOTION for Preliminary Injunction by Amicus Parties M. D., Northwest Health Law Advocates, C. P. (Hamburger, Eleanor) (Entered: 08/10/2020)
ORDER re 45 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Abigail Coursolle for Amicus National Health Law Program, by Clerk William M McCool. No document associated with this docket entry, text only. NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date

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scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 08/10/2020)
NOTICE of Appearance by attorney Abigail Coursolle on behalf of Amicus National Health Law Program. (Coursolle, Abigail) (Entered: 08/10/2020)
NOTICE of Appearance by attorney William Kerwin Lane, III on behalf of Defendants Alex M Azar, United States Department of Health and Human Services. (Lane, William) (Entered: 08/10/2020)
RESPONSE, by Defendants Alex M Azar, United States
Department of Health and Human Services, to 4 MOTION for Preliminary Injunction . (Lane, William) (Entered: 08/10/2020)
MOTION for Leave to File Brief of Amicus Curiae, filed by Amicus National Health Law Program. (Attachments: # 1
Exhibit Proposed Brief, # 2 Exhibit Exhibit to Proposed Brief, # 3 Proposed Order) Noting Date 8/10/2020, (Coursolle, Abigail) (Entered: 08/10/2020)
NOTICE of Appearance by attorney Liam Holland on behalf of Defendants Alex M Azar, United States Department of Health and Human Services. (Holland, Liam) (Entered: 08/11/2020)
REPLY, filed by Plaintiff State of Washington, TO RESPONSE
to 4 MOTION for Preliminary Injunction (Sutherland, Brian) (Entered: 08/13/2020)
ORDER granting Proposed Amici the National Health Law Program et al's 57 Motion for Leave to File an amicus curiae brief in support of Plaintiff State of Washington's Motion for Preliminary Injunction. The amicus curiae brief of the National Health Law Program et al. shall be filed within one court day of this Order. Signed by Judge James L. Robart.(PM) (Entered: 08/14/2020)
MINUTE ENTRY for proceedings held before Judge James L. Robart - Dep Clerk: Ashleigh Drecktrah; Pla Counsel: Marsha Chien, Brian Sutherland; Def Counsel: Liam Holland; CR: Nickie Drury; Zoom Motion Hearing held on 8/14/2020. The court hears
argument from counsel re 4 MOTION for Preliminary Injunction filed by Plaintiff State of Washington. The court takes

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the matter under advisement; written order to be issued. (AD) (Entered: 08/14/2020)
ORDER re 4 MOTION for Preliminary Injunction. The court ORDERS both parties to submit supplemental briefing on the topics in this order by 10:00 AM PDT on Monday, August 17, 2020. Signed by Judge James L. Robart. (PM) (Entered: 08/14/2020)
Amicus BRIEF by Amicus National Health Law Program (Coursolle, Abigail) (Entered: 08/14/2020)
SUPPLEMENT re 4 MOTION for Preliminary Injunction by Plaintiff State of Washington (Chien, Marsha) (Entered: 08/17/2020)
SUPPLEMENT Memorandum by Defendants Alex M Azar, United States Department of Health and Human Services (Holland, Liam) (Entered: 08/17/2020)
TRANSCRIPT REQUEST by Plaintiff State of Washington for proceedings held on 08/14/2020, Requesting Attorney: Marsha J. Chien. (Chien, Marsha) (Entered: 08/17/2020)
NOTICE of Decision in Walker v. Azar, No. 20-cv-02834 (EDNY) ; filed by Defendants Alex M Azar, United States Department of Health and Human Services. (Attachments: # 1 Exhibit)(Holland, Liam) (Entered: 08/18/2020)
ORDER TO SHOW CAUSE re Plaintiff's 4 MOTION for Preliminary Injunction. The court ORDERS the parties to show cause regarding the impact, if any, that the Asapansa-Johnson Walker injunction against HHS has on Washington's motion for a preliminary injunction. Both parties shall submit their responses to this order to show cause by 5:00 p.m. PDT on Wednesday, August 26, 2020. Signed by Judge James L. Robart. (LH) (Entered: 08/18/2020)
NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Zoom Preliminary Injunction Hearing held on 8/14/2020 before Judge James L. Robart. Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

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Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov. To purchase a copy of the transcript, contact court reporter Nickoline Drury, nickoline_drury@wawd.uscourts.gov, 206-3708508. Release of Transcript Restriction set for 11/18/2020, (ND) (Entered: 08/20/2020)
RESPONSE TO ORDER TO SHOW CAUSE by Plaintiff State of
Washington re: 68 Order to Show Cause, (Attachments: # 1 Exhibit 1)(Sutherland, Brian) (Entered: 08/26/2020)
MEMORANDUM filed by Defendants Alex M Azar, United States
Department of Health and Human Services re 4 MOTION for Preliminary Injunction Responding to the Court's Order to Show Cause (Holland, Liam) (Entered: 08/26/2020)
ORDER denying Plaintiff's 4 Motion for Preliminary Injunction. The court also ORDERS Washington to show cause within 10 days of the filing date of this order why this case should not be dismissed for lack of subject matter jurisdiction. Signed by Judge James L. Robart. (PM) (Entered: 08/28/2020)
NOTICE of Voluntary Dismissal of case by Plaintiff State of Washington (Sutherland, Brian) (Entered: 09/08/2020)
***Civil Case Terminated re 73 Notice of Voluntary Dismissal without prejudice. (LH) (Entered: 09/09/2020)

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 Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 1 of 42

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

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STATE OF WASHINGTON,

No.

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Plaintiff,

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v.

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UNITED STATES DEPARTMENT OF

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HEALTH AND HUMAN SERVICES,

ALEX M. AZAR, in his official capacity as

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the Secretary of the United States

Department of Health and Human Services,

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Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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I. INTRODUCTION

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1. On June 15, 2020, the U.S. Supreme Court held that discrimination on the basis

21 of sexual orientation or transgender status is unlawful discrimination because of sex. Bostock v.

22 Clayton County, 590 U.S. ___, 140 S. Ct. 1731, 1748 (2020). Four days later, the U.S.

23 Department of Health and Human Services (HHS) defied that decision and implemented a rule

24 under Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18114 (ACA),

25 that strips sexual orientation, sex stereotyping, and gender identity from the definition of

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 2 of 42

1 prohibited “sex” discrimination. Nondiscrimination in Health and Health Education Programs

2 or Activities, Delegation of Authority, 85 Fed. Reg. 37,160 (June 19, 2020) (Final Rule). The

3 Final Rule removes explicit protections from discrimination in healthcare against patients who

4 identify as lesbian, gay, bisexual, transgender, or queer (LGBTQ), women, individuals who are

5 limited English proficient (LEP), and those with whom they are associated.

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2. The State of Washington (Washington) challenges the Final Rule as contrary to

7 federal law and the Constitution because the Final Rule permits unlawful discrimination and

8 contravenes the fundamental premise of the ACA to increase the number of people who have

9 healthcare insurance. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 596 (2012) (“[a]

10 central aim of the ACA is to reduce the number of uninsured U.S. residents.”) (citing 42 U.S.C.

11 § 18091(2)(C) and (I) (2006 ed., Supp. IV). If healthcare providers can refuse services because

12 of who the patient loves, how the patient dresses, whether the sex they were assigned at birth

13 matches their gender identity, whether they have had an abortion, or whether they speak English

14 fluently, the results in Washington will be devastating. Vulnerable people will lose healthcare

15 coverage, be denied needed medical care, and fewer people will purchase health insurance

16 because they would not be able to use it in many situations where they need it.

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3. The harm to Washington and its residents if the Final Rule is allowed to take

18 effect will be substantial and far-reaching. Where Washington’s inclusive anti-discriminat ion

19 law would not apply, either because federal law preempts it or because a healthcare provider

20 mistakenly believes Washington law does not apply, the Final Rule will pose a barrier to

21 healthcare access for Washington’s 305,000 residents who identify as LGBTQ, nearly 660,000

22 LEP residents, and everyone associated with them or someone else in a protected class. For

23 example, transgender residents who receive healthcare coverage from plans to which

24 Washington anti-discrimination laws do not apply, namely self-funded group health plans under

25 the Employee Retirement Income Security Act of 1974 (ERISA), and Federal Employees Health

26 Benefits Program, will lose coverage for gender affirming healthcare services, which will result

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

2

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 3 of 42

1 in destructive mental health consequences including depression, substance abuse, and suicide.

2 LEP residents will have trouble accessing or understanding their healthcare options. Washington

3 itself will incur substantial costs in providing healthcare services that will now be denied

4 elsewhere; in investigating and enforcing increased discrimination complaints; in educating

5 individuals, agencies, and stakeholders about how health programs and activities must conform

6 to the Final Rule; in identifying which parts of large health programs and activities must conform

7 to the Final Rule, and monitoring the same. Even more, Washington will suffer substantial losses

8 in tax revenue resulting from healthcare services not purchased and income not earned by

9 residents who are not able to work as productively after the healthcare system ignores their

10 medical needs.

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4. As Congress recognized, the healthcare system must be free of discrimination in

12 order to function effectively. The ability to seek and receive healthcare without regard to one’s

13 sex, national origin, or association with another person is necessary to ensure health and save

14 lives. The Final Rule’s unlawful attempt to roll back anti-discrimination protections required by

15 the ACA directly threatens the health and lives of Washingtonians, unduly burdens

16 Washington’s agencies, and undermines Washington’s ability to ensure a healthy economy.

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II. JURISDICTION AND VENUE

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5. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (action arising under the

19 laws of the United States), 28 U.S.C. § 1346 (United States as a defendant), and the

20 Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06. An actual controversy exists between

21 the parties within the meaning of 28 U.S.C. § 2201(a), and this Court may grant declaratory

22 relief, injunctive relief, and other relief pursuant to 28 U.S.C. §§ 2201-02 and

23 5 U.S.C. §§ 705-06.

24

6. Defendants’ publication of the Final Rule in the Federal Register on June 19,

25 2020, constitutes a final agency action and is therefore judicially reviewable within the meaning

26 of the APA. 5 U.S.C. §§ 704, 706.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

3

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 4 of 42

1

7. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because this is a

2 judicial district in which the State of Washington resides, the Final Rule will directly injure

3 Washington and will adversely affect the health and welfare of residents in this district, and this

4 action seeks relief against federal agencies and officials acting in their official capacities.

5

III. PARTIES

6

8. Plaintiff State of Washington, represented by and through its Attorney General,

7 is a sovereign state of the United States of America. The Attorney General is Washington’s chief

8 law enforcement officer, and is authorized under Washington Revised Code § 43.10.030 to

9 pursue this action.

10

9. Washington is directly affected by the Final Rule. Washington brings this action

11 to redress harms to its proprietary and quasi-sovereign interests, including its interests as parens

12 patriae in protecting the health and well-being of its residents.

13

10. Washington and its residents will suffer significant and irreparable harm if the

14 Final Rule goes into effect.

15

11. Defendant HHS is a cabinet agency within the executive branch of the United

16 States government and is an agency within the meaning of 5 U.S.C. § 552(f)(1). It is the agency

17 that promulgated the Final Rule and is responsible for implementing it.

18

12. Defendant Alex M. Azar II is the Secretary of HHS. Secretary Azar is sued in his

19 official capacity in overseeing the operation and management of HHS, including the adoption of

20 the Final Rule.

21

IV. ALLEGATIONS

22

Nondiscrimination Re quire me nts in the Affordable Care Act

23

13. In March 2010, Congress passed the Patient Protection and Affordable Care Act

24 (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010). In promulgating the ACA, Congress’s intent

25 was “to increase the number of Americans covered by health insurance and decrease the cost of

26 healthcare,” Nat’l Fed’n, 567 U.S. at 538, and “to help uninsured and underserved populations

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

4

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 5 of 42

1 gain access to care,” Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,433

2 (May 18, 2016) (codified at 45 C.F.R. pt. 92). Congress further expressly intended for patients

3 to be able to timely access the care they need after frank consultation with their provider and for

4 the full duration of their medical needs. See 42 U.S.C. § 18114.

5

14. The ACA has resulted in increased insurance coverage for millions of Americans.

6 In 2010, 49.9 million people were uninsured. Carmen DeNavas-Walt et al., U.S. Census Bureau,

7 Income, Poverty, and Health Insurance Coverage in the United States: 2010 23 (2011),

8 https://www.census.gov/prod/2011pubs/p60-239.pdf. By 2018, that number had dropped to

9 27.5 million. Edward R. Berchick et al., U.S. Census Bureau, Health Insurance Coverage in the

10 United States: 2018 2 (2019),

11 https://www.census.gov/content/dam/Census/library/publications/2019/demo/p60-267.pdf.

12

15. A key element of the ACA’s success in facilitating access to healthcare is Section

13 1557, the nondiscrimination provision. Section 1557 provides in relevant part:

14

Except as otherwise provided for in this title [I] (or an amendment

15

made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42

16

U.S.C. 2000d et seq.), title IX of the Education Amendments of

1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975

17

(42 U.S.C. 6101 et seq.), or section 794 of title 29 [Section 504 of

the Rehabilitation Act of 1973], be excluded from participation in,

18

be denied the benefits of, or be subjected to discrimination under,

19

any health program or activity, any part of which is receiving

Federal financial assistance, including credits, subsidies, or

20

contracts of insurance, or under any program or activity that is

administered by an Executive Agency or any entity established

21

under this title [I] (or amendments). The enforcement

22

mechanisms provided for and available under such title VI, title IX, section 794, or such Age Discrimination Act shall apply for

23

purposes of violations of this subsection.

24 42 U.S.C. § 18116(a) (emphases added).

25

16. Thus, Section 1557 prohibits health programs or activities that receive federal

26 funds from discriminating “on the ground prohibited under” four existing civil rights statutes,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

5

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 6 of 42

1 including discrimination on the bases of race, color, national origin, sex, age, or disabilit y.

2 42 U.S.C. § 18116(a). Section 1557 also expressly imports the enforcement mechanisms of the

3 four civil rights statutes to address Section 1557 violations. Id.

4

17. HHS “may promulgate regulations to implement [Section 1557],” 42 U.S.C.

5 § 18116(c). However, Congress prohibited HHS from promulgating any regulation that:

6

(1) creates any unreasonable barriers to the ability of individua ls to obtain

7

appropriate medical care;

(2) impedes timely access to healthcare services;

8

(3) interferes with communications regarding a full range of treatment

options between the patient and the provider;

9

(4) restricts the ability of healthcare providers to provide full disclosure

10

of all relevant information to patients making healthcare decisions; (5) violates the principles of informed consent and the ethical standards

11

of healthcare professionals; or

(6) limits the availability of healthcare treatment for the full duration of a

12

patient’s medical needs.

13 42 U.S.C. § 18114. 14

The 2016 Rule Imple me nting Se ction 1557

15

18. In August 2013, HHS initiated an information-gathering and rulemaking process

16 to implement Section 1557. 81 Fed. Reg. 31,376. HHS received 402 comments. Id.

17

19. Two years later, in September 2015, HHS proposed a rule to implement Section

18 1557 and invited public comment. 81 Fed. Reg. 31,376. HHS received 24,875 comments over

19 the 60-day comment period. Id.

20

20. Around this time, HHS also enforced Section 1557’s ban on sex discrimination

21 to ensure equal treatment in healthcare for transgender individuals. See HHS Office for Civil

22 Rights Bulletin, The Brooklyn Hospital Center Implements Non-Discriminatory Practices to

23 Ensure Equal Care for Transgender Patients (July 14, 2015)

24 https://www.hhs.gov/sites/default/files/ocr/civilrights/activities/agreements/TBHC/statement.p

25 df.

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

6

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 7 of 42

1

21. In May 2016, HHS published a final rule, Nondiscrimination in Health Programs

2 and Activities, 81 Fed. Reg. 31,376 (May 18, 2016) (formerly codified at 45 C.F.R. pt. 92) (2016

3 Rule). Id.

4

22. The 2016 Rule specifically defined discrimination “on the basis of sex” to include

5 gender identity discrimination. Id. at 31,387. The 2016 Rule clarified that under Section 1557,

6 “even where it is permissible to make sex-based distinctions, individuals may not be excluded

7 from health programs and activities for which they are otherwise eligible based on their gender

8 identity.” Id. at 31,409. HHS found this provision necessary to be consistent with the

9 interpretations of other federal agencies1 and decisions issued by the federal courts2 that

10 recognized that discrimination on the basis of gender identity is discrimination on the basis of

11 sex. Id. at 31,388.

12

23. The 2016 Rule further defined “gender identity” as “an individual’s internal

13 sense of gender, which may be male, female, neither, or a combination of male and female, and

14 which may be different from an individual’s sex assigned at birth.” Id. at 31,387. Additionally,

15 HHS explained, “[t]he way an individual expresses gender identity is frequently called ‘gender

16 1 See 5 C.F.R. §§ 300.102(c), 300.103(c), 300.103(c), 315.806(d), 335.103(b)(1),

17 537.105(d), 900.603(e) (U.S. Office of Personnel Management regulations providing that

discrimination on the basis of sex includes discrimination on the basis of gender identity); 18 Directive 2014-02, U.S. Dep't of Labor, Office of Fed. Contract Compliance Programs

19

(OFCCP), § 5 (Aug. 19, 2014), https://www.dol.gov/agencies/ofccp/directives/2014-02 (U.S. Department of Labor and OFCCP’s clarification that sex discrimination encompasses gender

20 identity and transgender status); Memorandum from Eric Holder, Att'y Gen., to U.S. Att'ys & Heads of Dep't Components (Dec. 15, 2014), https://www.justice.gov/opa/pr/attorney-general-

21 holder-directs-department-include-gender-identity-under-sex-discrimination (U.S. Department

of Justice requiring gender identity be included as sex discrimination in employment); U.S. Dep't 22 of Educ., Questions and Answers on Title IX and Sexual Violence, B-2 (Apr. 29, 2014),

23

http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (U.S. Department of Education determination that Title IX extends to discrimination based on gender identity).

24

2 See Rumble v. Fairview Health Servs.,No. 14-cv-2037 (SRN/FLN), 2015 WL 1197415,

at *10 (D. Minn. Mar. 16, 2015) (Section 1557) (order denying motion to dismiss); Barnes v.

25 City of Cincinnati, 401 F.3d 729, 737 (6th Cir.), cert. denied, 546 U.S. 1003 (2005) (Title VII);

Smith v. City of Salem, Ohio, 378 F.3d 566, 575 (6th Cir. 2004) (Title VII); Schroer v. Billington, 26 577 F.Supp.2d 293, 304 (D.D.C. 2008) (Title VII).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

7

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 8 of 42

1 expression,’ and may or may not conform to social stereotypes associated with a particular

2 gender. A transgender individual is an individual whose gender identity is different from the sex

3 assigned to that person at birth.” Id.

4

24. The 2016 Rule also defined “on the basis of sex” to include sex stereotyping, to

5 “reflect[] the Supreme Court’s holding in Price Waterhouse v. Hopkins,” which defined

6 discrimination on the basis of sex to include discrimination based on sex stereotypes. Id. (citing

7 Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989), superseded on other grounds by Civil

8 Rights Act of 1991, 42 U.S.C. § 2000e-2(m)).

9

25. The 2016 Rule defined “sex stereotypes” as:

10

stereotypical notions of masculinity or femininity, including

11

expectations of how individuals represent or communicate their gender to others, such as behavior, clothing, hairstyles, activities,

12

voice, mannerisms, or body characteristics. These stereotypes can

include the expectation that individuals will consistently identify

13

with only one gender and that they will act in conformity with the

gender-related expressions stereotypically associated with that

14

gender. Sex stereotypes also include gendered expectations related

15

to the appropriate roles of a certain sex.

16 81 Fed. Reg. at 31,468.

17

26. The 2016 Rule also relied on Price Waterhouse and its progeny to define sex

18 discrimination as including discrimination based on sexual orientation, where the evidence

19 establishes that discrimination is based on gender stereotypes of how members of a certain sex

20 should act or behave or be attracted to. Id. at 31,389.

21

27. The 2016 Rule cited evidence for its conclusion that clear prohibitions on

22 LGBTQ discrimination were required to increase the affordability and accessibility of healthcare

23 for LGBTQ individuals. Id. at 31,460.

24

28. HHS additionally observed that, around the time the ACA became law, 26.7% of

25 transgender respondents in one survey reported that they were refused needed healthcare, citing

26 Lambda Legal, When Healthcare Isn't Caring: Lambda Legal’s Survey on Discrimination

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

8

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 9 of 42

1 Against LGBT People and People Living with HIV, 10 (2010), http://www.lambdalegal. org/

2 publications/when-health-care-isnt-caring, and that in another study 25% of transgender

3 individuals reported being subject to harassment in medical settings, with 50% reporting having

4 to teach their medical providers about transgender care, citing the National Center for

5 Transgender Equality and National Gay and Lesbian Task Force, Injustice at Every Turn: A

6 Report of the National Transgender Discrimination Survey, 5-6 (2011),

7 https://www.transequality.org/sites/default/files/docs/resources/NTDS_Report.pdf. 81 Fed.

8 Reg. at 31,460.

9

29. The 2016 Rule specifically found “[b]y prohibiting discrimination on the basis of

10 sex, Section 1557 would result in more women and transgender individuals obtaining coverage

11 and accessing health services.” Id.

12

30. Considering the State of California’s experience in enacting a statutory

13 requirement that insurers provide healthcare coverage for transgender individuals, and relying

14 on an Economic Impact Study of the California Department of Insurance, the 2016 Rule also

15 found that prohibiting coverage exclusion of transgender individuals was cost-effective and

16 would lead to reduced violence against affected individuals; reduced depression and suicide

17 attempts among the affected population; overall declines in substance abuse, smoking, and

18 alcohol abuse rates; and reduction of other health disparities. 81 Fed. Reg. at 31,457-61 (citing

19 California Economic Impact Assessment, Gender Discrimination in Health Insurance, at 10-12,

20 https://transgenderlawcenter.org/wp-content/uploads/2013/04/Economic-Impact-Assessment-

21 Gender-Nondiscrimination-In-Health-Insurance.pdf).

22

31. Based on comments received, the final 2016 Rule also contained a number of

23 substantive changes from the original proposal. Notably, HHS “decided against including a

24 blanket religious exemption in the [2016 Rule]; however, the [2016 Rule] included a provision

25 noting that insofar as application of any requirement under the rule would violate applicable

26 Federal statutory protections for religious freedom and conscience, such application would not

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

9

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 10 of 42

1 be required.” 81 Fed. Reg. at 31,376. HHS explained that “certain protections already exist with

2 respect to religious beliefs, particularly with respect to the provision of health-related services.”

3 Id. at 31,378. HHS reasoned that blanket religious exemptions, such as those contained in the

4 text of Title IX, do not belong in the healthcare context because they “could result in a denial or

5 delay in the provision of healthcare to individuals and in discouraging individuals from seeking

6 necessary care, with serious and, in some cases, life threatening results.” Id. at 31,380.

7

32. The 2016 Rule also prohibited discrimination “against any individual or entity on

8 the basis of a relationship or association with a member of a protected class.” Id. at 31,439. HHS

9 explained that the prohibition on associational discrimination is “consistent with longstanding

10 interpretations of existing anti-discrimination laws, whether the basis of discrimination is a

11 characteristic of the harmed individual or an individual who is associated with the harmed

12 individual.” Id.

13

33. Recognizing that individuals with limited English proficiency (LEP) traditionally

14 face barriers to healthcare, resulting in poorer health outcomes, the 2016 Rule also required

15 health programs and activities to “take reasonable steps to provide meaningful access to each

16 individual with limited English proficiency eligible to be served or likely to be encountered.”

17 81 Fed. Reg. 31,410, 31,470. HHS explained that “[t]he key to providing meaningful access for

18 LEP persons is to ensure that the recipient/covered entity and LEP person can communicate

19 effectively.” Id. at 31,410. As such, the 2016 Rule provided that “[l]anguage assistance services

20 . . . must be provided free of charge, be accurate and timely, and protect the privacy and

21 independence of the individual with limited English proficiency.” Id. at 31,411. Namely, “each

22 covered entity is required to post taglines in the top 15 languages spoken by individuals with

23 limited English proficiency by relevant State or States, informing individuals with limited

24 English proficiency that language assistance services are available” free of charge. Id. at 31,442.

25

34. The 2016 Rule also restated Section 1557’s scope. By its express terms, Section

26 1557 covers “any health program or activity, any part of which is receiving Federal financial

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

10

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 11 of 42

1 assistance, including credits, subsidies, or contracts of insurance, or under any program or

2 activity that is administered by an Executive Agency or any entity established under this title [I]

3 (or amendments).” 42 U.S.C. § 18116(a). The 2016 Rule reiterated that Section 1557 applies “to

4 every health program or activity, any part of which receives Federal financial assistance provide d

5 or made available by [HHS]; every health program or activity administered by [HHS]; and every

6 health program or activity administered by a Title I entity.” 81 Fed. Reg. at 31,466.

7

35. In the 2016 Rule, HHS defined “health program or activity” as “all of the

8 operations of an entity principally engaged in providing or administering health services or

9 health insurance coverage” and “the provision of assistance in obtaining health-related services

10 or health-related insurance coverage.” 81 Fed. Reg. at 31,385. HHS explained that applying an

11 anti-discrimination provision, like Section 1557, to the entire operations of an entity principally

12 providing or administering health services or health insurance, if any part of it receives HHS

13 funds, is consistent with the approach codified in the Civil Rights Restoration Act of 1987. Id.

14

36. The 2016 Rule resulted in immediate improvements in coverage for transgender

15 people. In the first year the 2016 Rule was in effect, “the vast majority of insurers (95.1%)

16 removed transgender-specific exclusions” from their insurance plans. Out2Enroll, Summary of

17 Findings: 2017 Marketplace Plan Compliance with Section 1557 2,

18 https://out2enroll.org/out2enroll/wp-content/uploads/2015/10/Report-on-Trans-Exclusions-in-

19 2017-Marketplace-Plans.pdf. Since 2017, the percentage of insurers that did not have

20 transgender-specific exclusions in their plans but excluded a transition-related procedure has

21 also dropped significantly from 55.5% to 12% in 2020. Out2Enroll, Summary of Findings: 2020

22 Marketplace Plan Compliance with Section 1557 1, https://out2enroll.org/out2enroll/wp-

23 content/uploads/2019/11/Report-on-Trans.-Exclusions-in-2020-Marketplace-Plans-2.pdf.

24

37. Similarly, the percentage of insurance companies that specifically included

25 transition-related care in their plans rose from 18.5 percent in 2017 to 41 percent in 2019.

26 Out2Enroll, Summary of Findings: 2019 Marketplace Plan Compliance with Section 1557 1,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

11

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 12 of 42

1 https://out2enroll.org/out2enroll/wp-content/uploads/2018/11/Report-on-Trans-Exclusions-in-

2 2019-Marketplace-Plans.pdf.

3

HHS’s Proposal to Re vise the 2016 Rule

4

38. In June 2019, HHS proposed a rule to replace the 2016 Rule. See

5 Nondiscrimination in Health and Health Education Programs and Activities, 84 Fed. Reg. 27,846

6 (proposed June 14, 2019). Citing a single federal district court decision, Franciscan Alliance,

7 Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016), more than 40 times, HHS reversed many

8 of the positions it took in the 2016 Rule. Id.

9

39. In Franciscan Alliance, private healthcare providers and eight states sued to

10 enjoin the 2016 Rule’s inclusion of pregnancy termination and gender identity as bases of

11 prohibited sex discrimination, arguing that Title IX’s definition of “sex” discrimination did not

12 include those grounds, and that religious organizations should enjoy greater exemptions from

13 Section 1557. 227 F. Supp. 3d at 670. The district court agreed, and enjoined HHS from

14 enforcing the 2016 Rule’s prohibition against discrimination on the basis of gender identity or

15 termination of pregnancy. Id. at 696. A second federal court, citing Franciscan Alliance, issued

16 a stay of enforcement as to two additional plaintiffs. See Amended Order Staying Enforcement

17 Action, ECF No. 36, Religious Sisters of Mercy v. Burwell, Nos. 3:16-cv-386, 3:16-cv-432

18 (D.N.D. Jan. 23, 2017). Following a change in presidential administrations, the federal

19 government elected not to defend its own rule or appeal either Franciscan Alliance or Religious

20 Sisters.

21

40. Despite the fact that numerous other federal district courts came to the opposite

22 conclusion and held Section 1557 does prohibit discrimination based on transgender status or

23 gender identity, see, e.g., Flack v. Wis. Dep’t of Health Servs., 328 F. Supp. 3d 931, 947-51

24 (W.D. Wis. 2018); Tovar v. Essentia Health, 342 F. Supp. 3d 947, 952 (D. Minn. 2018);

25 Prescott v. Rady Children’s Hosp.-SanDiego,265 F. Supp. 3d 1090, 1099-100 (S.D. Cal. 2017);

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

12

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 13 of 42

1 Rumble v. Fairview Health Servs., No. 14-cv-2037 (SRN/FLN), 2015 WL 1197415, at *10 (D.

2 Minn. Mar. 16, 2015), HHS crafted a new rule to align with Franciscan Alliance.

3

41. According to HHS, the 2016 Rule “exceeded [the agency’s] authority under

4 Section 1557, adopted erroneous and inconsistent interpretations of civil rights law, caused

5 confusion, and imposed unjustified and unnecessary costs,” and needed revision “to better

6 comply with the mandates of Congress, address legal concerns, relieve billions of dollars in

7 undue regulatory burdens, further substantive compliance, reduce confusion, and clarify the

8 scope of Section 1557.” 84 Fed. Reg. at 27,849.

9

42. HHS, therefore, proposed a rule that made sweeping changes to the 2016 Rule.

10 The Proposed Rule omitted gender identity, sex stereotyping, and sexual orientation as

11 prohibited bases for discrimination. 84 Fed. Reg. at 27,848, 27,856. It similarly eliminated sexual

12 orientation discrimination and gender identity discrimination in ten unrelated regulations under

13 the Centers for Medicare and Medicaid Services (CMS). Id. at 27,871. It eliminated requirements

14 to facilitate language access to healthcare and health insurance for LEP individuals and

15 individuals with hearing-related disabilities. Id. at 27,868. And it narrowed Section 1557’s scope,

16 or the number and types of entities that Section 1557 covers, id. at 27,862, including through the

17 addition of a blanket religious freedom and conscience provision that would exempt all religious

18 health programs or activities from Section 1557’s requirements. Id. at 27,864.

19

Washington’s Obje ctions to the Propose d Rule

20

43. During the comment period that ended on August 13, 2019, Washington officials

21 and state agencies submitted three comments and joined two multistate comments opposing the

22 Proposed Rule as harmful to the health and wellbeing of the state and its residents.

23

44. Washington State Governor Jay Inslee, Washington State Attorney General Bob

24 Ferguson, and Washington State Insurance Commissioner Mike Kreidler submitted a comment

25 urging HHS to withdraw the Proposed Rule. See Comment Letter on Proposed Rule on

26 Nondiscrimination in Health and Health Education Programs or Activities from Jay Inslee,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

13

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 14 of 42

1 Wash. Governor, Bob Ferguson, Wash. Att’y Gen., and Mike Kreidler, Wash. Ins. Comm’r to

2 Alex M. Azar II, Sec’y of U.S. Dep’t of Health & Human Servs., Roger Severino, U.S. Dep’t of

3 Health & Human Servs. Office of Civil Rights Dir., Seema Verma, Ctr. for Medicare & Medicaid

4 Servs. Adm’r (Aug. 13, 2019), https://www.regulations.gov/document?D=HHS-OCR-2019-

5 0007-138340 (Washington Comment). The Washington Comment objected to a number of

6 provisions in the Proposed Rule, including the elimination of gender identity, sex stereotyping,

7 sexual orientation, and pregnancy termination from the definition of “sex” from the 2016 Rule

8 and from ten other regulations; the narrowing of the scope of “covered entities” under Section

9 1557; the removal of the prohibition on association discrimination; the removal of the

10 compliance coordinator and grievance procedure requirement; the removal of the ban on

11 discrimination in health insurance issuance, coverage, cost-sharing, marketing, and benefit

12 design; and the removal of the requirement that taglines and notices must be made available in

13 the top fifteen languages for individuals with LEP. Id. at 11.

14

45. The Washington Comment explained that the proposed provisions, if adopted,

15 would violate Section 1554 of the ACA, which prohibits any regulation that creates unreasonable

16 barriers to the timely access of healthcare, id. at 2, as well as the APA, id. at 17. The Washington

17 Comment explained how the Proposed Rule would impose significant costs on the state,

18 including the costs of “investigating and enforcing complaints of discrimination, providing

19 health services sought by transgender Washingtonians and reproductive health services related

20 to unintended pregnancies, and incurring higher administrative costs and longer delays in

21 medical care for LEP individuals because they did not know how to ask for an interpreter.” Id.

22 at 3.

23

46. The Washington Comment also opposed the Proposed Rule’s religious

24 exemption because it would “significantly empower Section 1557 healthcare entities to deny

25 patients healthcare procedures, services, or information on religious grounds, even in

26 emergencies.” Id. at 14. The Washington Comment pointed to the number of complaints that the

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

14

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 15 of 42

1 HHS Office of Civil Rights has received regarding discrimination against patients as compared

2 to discrimination against healthcare providers for their religious beliefs: “Between 2008 and

3 January 2018, the Department’s Office of Civil Rights . . . received fewer than fifty complaints

4 alleging discrimination against healthcare providers in violation of federal religious conscience

5 statutes. In contrast, the Office received over 30,000 complaints of discrimination against

6 patients in fiscal year 2017 alone.” Id. at 16. In light of the Proposed Rule’s serious harms and

7 deficiencies, the Washington Comment urged HHS to withdraw it in its entirety. Id. at 18.

8

47. Washington separately joined a comment opposing the Proposed Rule submitted

9 by 20 other states and the District of Columbia, including California, Massachusetts,

10 Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maryland, Michigan, Minnesota,

11 Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Vermont,

12 and Virginia. Comment Letter on Proposed Rule on Nondiscrimination in Health and Health

13 Education Programs and Activities from State of California et al. to Alex Azar, Sec’y of U.S.

14 Dep’t of Health & Human Servs. (Aug. 13, 2019), https://www.regulations.g ov/

15 document?D=HHS-OCR-2019-0007-142194 (Multistate Comment). The Multistate Comment

16 urged HHS to withdraw the Proposed Rule because it would “inflict harm on the States’ and

17 their residents—particularly underserved populations including individuals with disabilit ies,

18 women, LGBTQ individuals—by undermining legal protections that guarantee healthcare as a

19 right.” Id. at 1. The Multistate Comment again explained that the Proposed Rule violated both

20 the ACA and the APA due to its “flawed legal analysis” and its failure to “account for sweeping

21 changes that will cause significant harm,” including a negative impact on public health and the

22 imposition of significant costs on the signatory states. Id. at 2.

23

48. The Multistate Comment specifically criticized the Proposed Rule’s elimination

24 of key definitions, including the definitions for sex discrimination, and the exemption of many

25 healthcare entities from complying with Section 1557. Id. at 4. The Multistate Comment

26 observed that states will bear increased costs “if self-insured ERISA plans stop offering gender

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

15

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 16 of 42

1 transition care due to the discriminatory Proposed Rule because state laws that may guarantee

2 comprehensive insurance coverage to transgender individuals do not extend to these plans.” Id.

3 at 16. The Multistate Comment also opposed the new religious exemption because it would result

4 in denials of service related to reproductive health, which in turn will cause “an increase in

5 unintended pregnancies which are associated with poor birth outcomes and maternal health

6 complications, including preterm birth, low birth weight, stillbirth, and early neonatal death.” Id.

7 at 9. Additionally, the Multistate Comment objected to the removal of protections for individ uals

8 with LEP and individuals living with disabilities. Id. at 13-14. Finally, the states commented that

9 the Proposed Rule would be detrimental to individual health as well as states’ public health

10 systems. Id. at 19.

11

49. The Washington Health Benefit Exchange (WAHBE), the state-based health

12 insurance marketplace in Washington, also submitted a comment opposing the Proposed Rule.

13 See Wash. Health Benefit Exchange, Comments on Proposed Federal Rule: Nondiscriminat ion

14 in Health and Health Education Programs or Activities (Aug. 13, 2019),

15 https://www.regulations.gov/document?D=HHS-OCR-2019-0007-149660

(WAHBE

16 Comment). The WAHBE Comment explained that the Proposed Rule “limits the protections

17 offered by Section 1557 to Washingtonians who obtain subsidized health insurance coverage

18 through Washington Healthplan Finder (Medicaid, CHIP, subsidized commercial insurance) or

19 through Medicare.” Id. at 1. WAHBE further described how the Proposed Rule would cause

20 confusion and a lack of coordination across the health plan marketplace, especially given that

21 Washington’s own anti-discrimination protections would continue to apply to some plans.

22 WAHBE objected to the provisions that would remove protections for LGBTQ Washingtonians,

23 pregnant women, and LEP individuals. Id. at 1.

24

50. Washington State Insurance Commissioner Mike Kreidler joined 17 other state

25 insurance commissioners in a comment expressing opposition to the Proposed Rule. See

26 Comment Letter on Proposed Rule on Nondiscrimination in Health and Health Education

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

16

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 17 of 42

1 Programs or Activities from State Ins. Comm’rs to Alex M. Azar, Sec’y of U.S. Dep’t of

2 Health & Human Servs. (Aug. 5, 2019), https://www.regulations.gov/contentStreamer?docume

3 ntId=HHS-OCR-2019-0007-71777&attachmentNumber=1&contentType=pdf

(Insurance

4 Commissioners’ Comment). The Insurance Commissioners’ Comment explained the importance

5 of anti-discrimination protections to state insurance markets and consumers, and how the

6 Proposed Rule would lead to considerable uncertainty for regulated entities given that “[t]he vast

7 majority of regulated entities across the country, including those [the insurance commissioners]

8 regulate, have already come into compliance with Section 1557.” Id. at 2.

9

51. Finally, Washington State Insurance Commissioner Kreidler submitted a separate

10 comment to express his specific concerns with the Proposed Rule’s impact on the Washington

11 State health insurance market. See Comment Letter on Proposed Rule on Nondiscrimination in

12 Health and Health Education Programs or Activities from Mike Kreidler, Wash. Ins. Comm’r,

13 to Alex Azar, Sec’y of U.S. Dep’t of Health & Human Servs. (Aug. 13, 2019),

14 https://www.regulations.gov/document?D=HHS-OCR-2019-0007-142825

(Kreidle r

15 Comment). The Kreidler Comment explained that the Proposed Rule would cause 1.4 million

16 Washington residents to lose federal anti-discrimination protections that they are currently

17 guaranteed under Section 1557. Id. at 2. “Without these federal protections in place,”

18 Commissioner Kreidler explained, “states will bear the sole burden of ensuring enrollees receive

19 the services they are entitled to, free from discrimination, and with meaningful access to the

20 information about the services they need.” Id. at 5.

21

52. By law, HHS is required to review public comments and respond to each

22 significant comment received in the preamble of any final rule. Perez v. Mortg. Bankers Ass’n,

23 575 U.S. 92, 96 (2015).

24

The Final Rule and the Bostock Decision

25

53. After receiving 198,845 comments on the Proposed Rule in the two-month public

26 comment period, on Friday, June 12, 2020, HHS finalized the Proposed Rule as proposed, aside

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

17

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 18 of 42

1 from “minor and primarily technical corrections.” Final Rule, 85 Fed. Reg. at 37,160, 37,161,

2 37,164. The Final Rule is scheduled to take effect on August 18, 2020. Id. at. 37,160.

3

54. In finalizing the Proposed Rule, HHS maintained its definition of “sex” despite

4 its acknowledgment that a forthcoming “holding by the U.S. Supreme Court ‘[because] of sex’

5 under Title VII will likely have ramifications for the definition ‘on the basis of sex’ under Title

6 IX,” to which Section 1557 refers. Id. at 37,168.

7

55. On Monday, June 15, 2020, just one business day after HHS finalized the

8 Proposed Rule, the U.S. Supreme Court conclusively held that sex discrimination includes

9 discrimination based on transgender status and sexual orientation. Bostock v. Clayton County,

10 590 U.S. ___, 140 S. Ct. 1731, 1748 (2020) (“When an employer fires an employee for being

11 homosexual or transgender, it necessarily and intentionally discriminates against that individua l

12 in part because of sex.”).

13

56. Undeterred, HHS published the Final Rule four days later. Despite the Bostock

14 ruling, the Final Rule continues to remove gender identity, sex stereotyping, and sexual

15 orientation as prohibited bases of discrimination because of sex. See 85 Fed. Reg. at 36,167.

16 HHS claims this change is necessary to comply with the Franciscan Alliance injunction, 84 Fed.

17 Reg. at 27,848, 85 Fed. Reg. at 37,168 and to be consistent with other federal agencies that use

18 the term “sex” in their Title IX regulations in a binary, male-female, biological sense.

19 84 Fed. Reg. at 27,856, 85 Fed. Reg. at 37,168. It also specifically states that sexual orientation

20 discrimination is not a prohibited form of sex discrimination. 85 Fed. Reg. at 37,194.

21

57. The Final Rule also eliminates anti-discrimination provisions on the bases of

22 gender identity and sexual orientation in ten other unrelated regulations under the CMS. Id. at

23 37,162. HHS stated neither gender identity nor sexual orientation is a ground of discrimination

24 prohibited under any of the four civil rights statutes incorporated into Section 1557. Id.

25

58. After deleting gender identity, sex stereotyping, and sexual orientation as bases

26 for sex discrimination under Section 1557 and ten unrelated CMS regulations, HHS explicitly

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

18

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 19 of 42

1 invites covered entities to “draw[] reasonable and/or medically indicated distinctions on the basis

2 of sex.” Id. at 37,162.

3

59. Although HHS acknowledged there would be some detrimental effects that the

4 removal of the definition of “on the basis of sex” and narrowing the definition of sex

5 discrimination would have on states like Washington with expansive anti-discrimination laws

6 and their residents, HHS failed to account for these costs, summarily stating that they would be

7 minimal. See 85 Fed. Reg. 37,225 (“The Department similarly lacks data to estimate what greater

8 public health costs, cost-shifting, and expenses may result from entities changing their

9 nondiscrimination policies and procedures after promulgation of this rule.”). HHS admitted that

10 instead of federal enforcement of civil rights laws against covered entities who discriminate on

11 the bases of gender identity or sexual orientation, “Unprofessional conduct such as inappropriate

12 jokes or questions, excessive precautions, or concealment of treatment options, may be covered

13 under State medical malpractice, tort, or battery laws.” Id. at 37,191. This description grossly

14 understates the many variations of healthcare discrimination experienced by LGBTQ patients,

15 while also placing the burden and costs on the states to investigate and respond to such

16 complaints.

17

60. In fact, HHS dismissed commenters who contended that transgender individ uals

18 would suffer health-related negative consequences if the Final Rule’s removal of protection

19 against discrimination took effect. HHS claimed that it lacked the data necessary to estimate how

20 many transgender individuals would be impacted, to estimate how many transgender patients

21 experience negative consequences from discrimination, and to estimate “what greater public

22 health costs, cost-shifting, and expenses may result from entities changing their

23 nondiscrimination policies and procedures” as a result of the Final Rule. Id. at 37,225.

24

61. The Final Rule also narrows the scope of “health programs and activities” that

25 are subject to Section 1557. Under the Final Rule, Section 1557 no longer applies to even HHS

26 programs if they are not administered under the ACA, nor to health insurers unless they receive

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

19

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 20 of 42

1 federal financial assistance or are selling plans on an ACA marketplace exchange healthcare. Id.

2 at 37,169-71. HHS states that narrowing the scope of covered entities is required by the statutory

3 text and consistent with the approach taken in the four civil rights statutes incorporated into

4 Section 1557. Id. HHS admits that Section 1557’s new scope of covered entities is narrower than

5 the four underlying civil rights statutes that Congress incorporated, but reasons that Section 1557

6 incorporates only the statutes’ prohibited grounds of discrimination, but not also their scope. Id.

7 at 37,171 (“Section 1557 incorporates Section 504’s prohibited grounds of discrimination but

8 not its scope: Section 1557’s scope differs from that of the underlying statutes.”).

9

62. As a result, large swaths of healthcare systems will no longer be subject to Section

10 1557 at all, including Medicare Part B,self-funded group health plans under the ERISA, Federal

11 Employees Health Benefits Program, and short-term limited duration insurance plans, as well as

12 those administered by the Centers for Medicare and Medicaid Services, the Centers for Disease

13 Control and Prevention, the National Institutes of Health, and the Substance Abuse and Mental

14 Health Services Administration. HHS acknowledged that commenters opposed the exclusion of

15 these entities, but refused to analyze these concerns on either a quantitative or qualitative basis;

16 instead, HHS simply stated that it was “not aware of data and methods available to make reliable

17 estimates of all economic impacts predicted by various commenters.” Id. at 37,169.

18

63. The Final Rule also incorporates Title IX’s blanket exclusion for religious

19 educational institutions from the prohibition on discrimination based on sex, and applies that

20 exemption to the healthcare context. Id. at 37,162. HHS admits that the 2020 Rule will extend

21 the Title IX religious organization exemption to all religious healthcare organizations, like

22 hospitals, and their employees, thereby exempting them from complying with Section 1557. Id.

23 at 37,207-08.

24

64. The Final Rule further eliminates discrimination on the basis of association with

25 someone of a protected class. Id. at. 37,199. HHS “simply declines to use the Section 1557

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

20

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 21 of 42

1 regulation to identify protections beyond those specifically identified in the text of the relevant

2 statutes and regulations.” Id.

3

65. Finally, the Final Rule removes the requirement that covered entities provide

4 patients and beneficiaries with taglines in 15 common languages. Id. at 37,175. HHS admits that

5 “[r]epealing the notice and tagline requirements may impose costs, such as decreasing access to,

6 and utilization of, healthcare for non-English speakers by reducing their awareness of available

7 translation services.” Id. at 37,232. Yet, HHS argued that it was simply unaware of “a way to

8 quantify those potential effects.” Id. at 37,234. Still, “[t]he Department acknowledge[d] the

9 potential of reduced awareness of the availability of language services by LEP individuals by

10 the changes made in this rule, or downstream effects on malpractice claims due to less

11 awareness,” id. at 37,235, but valued the costs of these harms at zero.

12

The Final Rule Will Harm Washington and Its Residents

13

66. Washington has quasi-sovereign interests in protecting the health, safety, and

14 physical and economic well-being of its residents from the harm caused by the Final Rule. The

15 Final Rule erects undue barriers to timely and appropriate healthcare and will result in poorer

16 health outcomes for a significant number of Washington’s most vulnerable residents.

17

67. The Final Rule will jeopardize the health, safety, physical and economic well-

18 being of Washington residents by inviting discrimination against LGBTQ and LEP individ uals

19 when they seek healthcare or insurance as well as all Washingtonians by narrowing the scope of

20 entities subject to Section 1557 in the first place. Washington has a particular interest in

21 protecting its residents from the universal sting of unlawful, government-sanctioned

22 discrimination.

23

68. Historically, LGBTQ individuals have faced widespread discrimination in

24 healthcare settings. The Final Rule puts at risk the 300,000 Washington residents who identify

25 as LGBTQ. Washington’s Equality Profile, Movement Advancement Project,

26 http://lgbtmap.org/equality_maps/profile_state/WA (last visited July 7, 2020).

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

21

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 22 of 42

1

69. According to the 2015 U.S. Transgender Survey, “One in four (25%) respondents

2 experienced a problem with their insurance in the past year related to being transgender, such as

3 being denied coverage for care related to gender transition.” Sandy E. James et al., Nat’l Ctr. for

4 Transgender Equal., The Report of the 2015 Transgender Survey 93 (2016),

5 https://www.transequality.org/sites/default/files/docs/USTS-Full-Report-FINAL.PDF.

6

70. Furthermore, “[o]ne-third (33%) of respondents who had seen a healthcare

7 provider in the past year reported having at least one negative experience related to being

8 transgender, such as verbal harassment, refusal of treatment, or having to teach the healthcare

9 provider about transgender people to receive appropriate care.” Id.

10

71. In Washington, 29% of respondents experienced a problem in the past year with

11 health insurance due to being transgender and 38% reported at least one negative experience

12 with a healthcare provider related to their being transgender. Nat’l Ctr. for Transgender Equal.,

13 2015 U.S. Transgender Survey: Washington State Report 3 (2017),

14 https://transequality.org/sites/default/files/docs/usts/USTS-WA-State-Report.pdf.

15

72. Transgender individuals are less likely to seek healthcare due to fear of

16 discrimination. There is a “significant association between delaying healthcare because of fear

17 of discrimination and worse general and mental health among transgender adults.” Kristie L.

18 Seelman et al., Transgender Noninclusive Healthcare and Delaying Care Because of Fear:

19 Connections to General Health and Mental Health Among Transgender Adults (Transgender

20 Health 2017), https://doi.org/10.1089/trgh.2016.0024. In the 2016 Rule, HHS recognized this

21 fear, observing that “a major barrier to receiving care is a concern over being refused medical

22 treatment based on bias against them.” 81 Fed. Reg. at 31,460.

23

73. In Washington, some transgender or gender non-conforming people who have

24 coverage cannot access it because there are not enough providers who will provide the services.

25 One member of the Washington State LGBTQ Commission had to travel a distance of over three

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

22

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 23 of 42

1 and a half hours one-way by car to secure gender affirming healthcare services from a provider

2 he was comfortable with.

3

74. And fear of discrimination discourages transgender individuals from receiving

4 healthcare—nearly 21% of respondents to a Needs Assessment in Walla Walla reported that they

5 avoided healthcare, and three quarters of those did so because of fear of disrespect or

6 discrimination, because they could not afford it, or because of the distance or a lack of

7 transportation.

8

75. Forty-five percent of respondents to the Walla Walla Needs Assessment sought

9 mental health treatment and 44% sought out support groups, while 86% of respondents reported

10 suffering emotional difficulties including stress, anxiety, and/or depression, and 73% of these

11 reported that it was related to their sexual orientation and/or gender identity.

12

76. LGBTQ Washingtonians experience healthcare discrimination, including one

13 respondent to the Walla Walla Needs Assessment who reported questions from their physician

14 about “choosing” to be gay. This patient was concerned about the physician’s unfamiliarity with

15 screening for certain sexually transmitted diseases for which men who have sex with men are

16 more at risk.

17

77. LGBTQ Washingtonians also suffer high rates of suicidality, demonstrated by

18 41% of the Walla Walla Needs Assessment respondents reporting that they had considered

19 suicide, 36% of them in the past twelve months, and 68% of the transgender individ uals

20 considered suicide, with 24% considering it in the last twelve months and 32% actually

21 attempting suicide.

22

78. The Final Rule will exacerbate the health picture for LGBTQ Washingtonians,

23 especially in rural areas. If healthcare coverage plans no longer prevented from discriminating

24 on the basis of transgender status, transgender or gender non-conforming Washingtonians in

25 these areas will be denied gender affirming healthcare services, which will be life-threatening

26 for some. Those who can obtain the coverage and services will likely be required to travel further

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

23

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 24 of 42

1 at greater cost and inconvenience, and probably a significant number will postpone healthcare

2 services for that reason, if not for fear of discrimination, which will lead to negative health

3 outcomes.

4

79. Transgender individuals in Washington already experience significant barriers to

5 healthcare access. A survey by the Ingersoll Gender Center, a Seattle-based nonprofit that works

6 to assist and advocate for transgender individuals who have had problems with healthcare

7 coverage for gender affirming healthcare services, indicates that 62% of respondents reported

8 difficulty paying for healthcare costs; 56% identified as disabled, sick, and/or chronically ill; and

9 52% reported making under $24,000 a year; 47% reported difficulty finding a gender affirming

10 surgeon that would work with their insurance; and 46.5% said that they could not access a mental

11 health provider on a regular basis.

12

80. Transgender individuals in Washington have an overall distrust of the healthcare

13 system; 55% of respondents to the Ingersoll Gender Center survey reported having to lie to their

14 healthcare provider in order to get the care they needed, and 50% reported concealing part of

15 their medical history to providers to avoid outing themselves.

16

81. Indeed, the 2015 U.S. Transgender Survey reported data that while 78% of

17 respondents wanted hormone therapy related to gender transition, only 49% had ever received

18 it. Moreover, 25% who sought coverage for it in the past year had been denied, while 55% of

19 those who sought coverage for surgical procedures for gender transition had been denied.

20

82. As another example, the Ingersoll Gender Center was contacted by a transgender

21 person from Clark County who sought hormone therapy from their physician. The physician

22 refused to prescribe testosterone for this person, citing “personal reasons,” and told them that

23 gender affirming healthcare services were the wrong choice and attempted to talk them out of

24 receiving this healthcare. This person was left in tears, was not able to find another health care

25 provider who would prescribe the hormones that they need, and has not been able to locate care

26 since February 2020. This person and individuals like them experience this kind of refusal of

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

24

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 25 of 42

1 care throughout Washington State and are at serious risk for depression, substance abuse, and

2 unfortunately, suicide.

3

83. Unfortunately, this is not an isolated incident in Washington. Since the 1980s,

4 Lambert House has been dedicated to building community and support networks for LGBTQ

5 youth in Washington. In their role serving this community, staff at Lambert House have heard

6 many stories of discrimination against LGBTQ youth in healthcare. Many transgender youth of

7 Lambert House are uncomfortable in medical settings because they are often misgendered, not

8 addressed by their preferred pronouns, and not addressed by their chosen name (aligned with

9 their gender identity).

10

84. Brandon Knox, the Program Director at Lambert House and a gay man, has

11 personally felt the sting of discrimination in healthcare. In 2013, Mr. Knox was living in

12 Ellensburg, WA, a town in eastern Washington of about 18,520 people at the time. Mr. Knox’s

13 doctor, knowing Mr. Knox is gay, ordered tests for sexually transmitted diseases for Mr. Knox

14 without asking any questions about Mr. Knox’s sexual history to determine if Mr. Knox was

15 likely to have an STD. The doctor also advised Mr. Knox “to stay away from the dirty nasties.”

16

85. Ken Schulman is the Executive Director of the Lambert House, and in that

17 position, he also has heard stories of discrimination against LGBTQ youth in healthcare. For

18 example, one youth who was identified as female at birth, but who does not self-identify as

19 female shared the following: “A few months before my top surgery, I noticed a lump in one of

20 my breasts. I have a family history of breast cancer so this was a significant concern. I sought

21 medical attention immediately. Despite the sensitivity and urgency of the situation, I had to go

22 to two different hospitals before I received the care I needed. The treatment I received at the first

23 hospital was hostile and inappropriate. The doctor did not follow proper protocol for a breast

24 exam and did not offer any advice regarding next steps, despite the obvious lump. When I asked

25 about next steps, he said he did not know, ‘because I was trans.’ I had to go to a second hospital

26 where I received the appropriate care and diagnosis. The doctor I saw at the second hospital gave

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

25

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 26 of 42

1 me a thorough examination and confirmed that the care I received at the prior hospital was

2 inadequate and did not follow appropriate protocols. I was referred for a biopsy the very next

3 day.”

4

86. In Ken Shulman’s view, the Final Rule would increase barriers to appropriate and

5 lifesaving healthcare for LGBTQ communities and sends the message that LGBTQ individ uals

6 are less worthy of health insurance and receiving life-saving healthcare.

7

87. The Gender Justice League focuses on elevating the rights of transgender and

8 gender diverse Washingtonians by creating community through advocacy and shared leadership

9 programs. In her position as co-founder and co-Executive Director of the Gender Justice League,

10 Elayne Wylie hears from clients and community members who are confused by denials of care for

11 doctor’s visits or prescriptions that should be covered by their insurance. For example, a transgender

12 person may be covered for the dosage that would align with the individual’s gender at birth, but

13 not the prescribed dosage appropriate for gender affirming care. Transgender patients often

14 discover this issue when they go to pick up their prescription at the pharmacy. Often the

15 medications prescribed are not available in the dosage strength, brand, or medication type they

16 had expected, and/or what they are given was dispensed by the pharmacy but not covered by the

17 plan.

18

88. In her position, Elayne Wylie has heard numerous stories of discrimination in the

19 healthcare setting against Washington’s transgender and gender nonconforming individuals. The

20 discrimination in these stories take a variety of forms, including the outright denial of care, being

21 mis-gendered, being referred to by the wrong name, and being ridiculed. According to Elayne

22 Wylie, hostility to a person’s identity within the healthcare setting is one reason transgender and

23 gender nonconforming Washingtonians often do not seek preventive and routine care when they

24 need it, which leads to poorer health outcomes.

25

89. For example, a transgender woman who had badly cut her hand shared the

26 following experience when she arrived at a Washington hospital: “I was receiving a routine and

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

26

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 27 of 42

1 appropriate workup for the cut on my hand until they obtained my registration and insurance

2 information. At that point they identified me through my social security number as a patient who

3 had been born at that hospital under a different gender. From that moment on I was treated

4 differently. I was ignored by staff when I requested water and I was referred to as ‘that thing,’

5 ‘it,’ and ‘shim’ (a combination of she and him, presumably). It was clear to me during my visit

6 that the demeanor of the staff changed once they determined my transgender status.” This

7 transgender woman developed post-traumatic stress disorder from this incident and anxiety that

8 took years of counseling to reduce.

9

90. Another Gender Justice League client shared the following when she visited an

10 emergency room in Washington: “When the nurse called me in, they did not refer to me by my

11 chosen male identified name and repeatedly referred to me as female. At that time I was far

12 enough along in my transition that I did not present as female. Although I did not arrive at

13 Swedish for crisis support, I was put in a lock down room and treated with hostility, escalating

14 the situation to the point where I no longer felt safe. The nurses and doctor repeatedly

15 mis-gendered me, referred to me as female, and refused to call me by my chosen name; at one

16 point the doctor rolled his eyes at me. I eventually left the hospital, more upset than when I

17 arrived. Had I arrived at Swedish in an acute mental health crisis, my treatment there would have

18 endangered my life. I was so traumatized by my treatment at Swedish, I skipped follow up

19 appointments at Kaiser because I did not want to be in a healthcare facility.”

20

91. In Elayne Wylie’s professional experience, discrimination against transgender

21 and gender non-conforming individuals threatens more than just the life of the person directly

22 suffering the discrimination. A family member of a Gender Justice League client relayed the

23 following: “Nine months ago our life as a family changed dramatically when our 12 year old

24 transgender daughter, “B”, began to exhibit signs of mental health distress and suicidal ideation.

25 As B’s behaviors became more dangerous, for them and the rest of the family, I sought support

26 from numerous treatment centers and crisis intervention programs in the Seattle area. We were

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

27

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 28 of 42

1 repeatedly denied access to critical long-term inpatient care because ‘beds were only available

2 for straight males or females.’ This denial of care has put “B” and my family at serious risk of

3 physical, emotional and financial harm.”

4

92. Elayne Wylie believes that if the Final Rule takes effect, experiences like the ones

5 described above will increase significantly. The Final Rule not only creates barriers to access to

6 needed healthcare, but it also contributes to distrust of the healthcare system and adds to the

7 stress and anxiety experienced by the LGBTQ community when seeking care.

8

93. Discrimination in healthcare leads to greater disparities in both physical and

9 mental health for transgender individuals. According to the American Medical Association,

10 “individuals with gender dysphoria who have undergone no gender confirmation treatment are

11 twice as likely to experience moderate to severe depression and four times more likely to

12 experience anxiety than their surgically-affirmed peers.” American Med. Ass’n, Health

13 insurance coverage for gender-affirming care of transgender patients 4 (2019),

14 https://www.ama-assn.org/system/files/2019-03/transgender-coverage-issue-brief.pdf.

15

94. In Washington, there are at least 1,583,681 individuals who receive healthcare

16 coverage under a plan that is “self-funded” by an employer under the Employee Retirement

17 Income and Security Act of 1974, or which is part of the Federal Employees Health Benefits

18 Program, such that the provisions of Washington State law that prohibit discrimination on the

19 basis of pregnancy termination, sexual orientation, or gender identity and/or transgender status

20 do not apply to these plans. And Washington’s Health Care Authority (HCA), the largest

21 purchaser of healthcare services in the state, reports that its data shows a continued and growing

22 demand in Washington for transgender services and access to this important component of health

23 care.

24

95. Because of this, the Washington State Department of Health (DOH) expects that,

25 if the Final Rule takes effect, between 5,271 and 16,266 transgender Washingtonians will lose

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

28

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 29 of 42

1 healthcare coverage for gender affirming transgender healthcare services like hormone therapy

2 and surgical gender transition procedures.

3

96. In addition, approximately 5.2% of the population in Washington is lesbian, gay,

4 or bisexual, so that DOH estimates an additional 82,351 LGB individuals will lose protection

5 from discrimination in healthcare on the basis of sexual orientation if the Final Rule takes effect.

6

97. The Final Rule will result in lost and denied healthcare coverage. With respect to

7 transgender individuals, DOH estimates that, of those who will lose healthcare coverage for

8 gender affirming healthcare services, between 367 and 1,132 transgender individuals will be

9 denied such services from a provider from year to year, and between 1,002 and 3,090 individ uals

10 will be denied coverage from year to year if the Final Rule takes effect.

11

98. DOH also predicts denials of other kinds of healthcare services to transgender

12 individuals. DOH estimates that, if the Final Rule takes effect, a denial of services and coverage

13 for transgender healthcare services will result in between 670 and 2,069 new cases of moderate

14 to severe depression for transgender individuals.

15

99. DOH is also aware that lack of gender affirming healthcare services for

16 transgender individuals is shown to increase suicidality among this population by approximately

17 20%, and expects that if the Final Rule takes effect, Washington can expect between 527and

18 1,627 more attempted suicides over the next several decades, as well as more successful

19 attempts.

20

100. HCA confirms these harms. In 2014, HCA began considering making transgender

21 services available through its Public Employees Benefits Board program (PEBB) that serves

22 over 300,000 Washingtonians. During several meetings in 2014, the PEBB heard public

23 comment on whether to offer transgender care. One commenter even told the Board about a

24 young transgender person who had committed suicide just the month before the commenter’s

25 testimony. The Board concluded “not only that gender affirming healthcare services for

26 transgender people is needed to save lives, it also reduces costs by making future spending on

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

29

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 30 of 42

1 depression, anxiety, substance abuse, and suicide unnecessary for people who would otherwise

2 fall victim to those and other health problems.” In January 2015, PEBB began offering coverage

3 for surgical and non-surgical healthcare services and prescriptions for the treatment of gender

4 dysphoria.

5

101. Women also continue to face discrimination in healthcare and health insurance.

6 The Final Rule authorizes poorer health outcomes for the 1.46 million women in Washington of

7 child-bearing age.

8

102. Women seeking reproductive healthcare may face refusal of service based on a

9 religious exemption, which can harm patients’ physical or mental health. Am. Coll. of

10 Obstetricians & Gynecologists, The Limits of Conscientious Refusal and Reproductive Medicine,

11 Committee Opinion No. 385 (Nov. 2007, reaffirmed 2016),

12 https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2007/11/the-limits-

13 of-conscientious-refusal-in-reproductive-medicine.

14

103. The Final Rule’s new religious exemption would also have a devastating impact

15 on Washington and its residents, especially in rural communities. Thirty of Washington’s 39

16 counties are rural with 100 or fewer people per square mile. Wash. Office of Fin. Mgmt.,

17 Population Density by County, 2010, https://www.ofm.wa.gov/washington-data-

18 research/population-demographics/population-estimates/population-density/population-

19 density-county#slideshow-11. Patients who are refused care on the basis of a religious

20 exemption, even in cases of emergency, may have no other healthcare options in these rural

21 areas.

22

104. People with LEP also face significant barriers to accessing healthcare and health

23 insurance. Over 60 million people in the United States speak a language other than English at

24 home and approximately 25 million people speak English “less than very well.” U.S. Census

25 Bureau, Detailed Languages Spoken at Home and Ability to Speak English for Population 5

26 Years and Over for United States: 2003-2013 (Oct. 2015),

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

30

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 31 of 42

1 http://www2.census.gov/library/data/tables/2008/demo/language-use/2009-2013-acs-lang-

2 tables-nation.xls?#.

3

105. Washington has a significant LEP population, approximately 660,000 residents

4 as of 2016, who will be harmed by the removal of LEP protections. Wash. Office of Fin. Mgmt.,

5 Estimate of Population with Limited English Proficiency (LEP) for the State and Counties, 2016

6 (Oct. 10, 2016), https://www.ofm.wa.gov/washington-data-research/populat ion-

7 demographics/population-estimates/special-subject-estimates. DOH reports that the Final Rule

8 will dramatically affect LEP individuals by decreasing access to health care, severely limiting

9 the ability of LEP individuals to communicate with the health care system and their providers,

10 and overall compounding the inequities already experienced by this population. DOH estimates

11 that, if the Final Rule takes effect, the removal of requirements to post notices and provide

12 taglines related to the availability of interpreters during healthcare visits will result in LEP

13 individuals missing appointments, delaying care, or engaging in “non-compliant” self-care,

14 resulting in lower utilization of healthcare for this population. Language access barriers

15 exacerbate healthcare disparities by making it difficult for patients to understand their healthcare

16 options, express their needs and choices, read medication instructions, and ask questions.

17

106. Washington will bear the disproportionately higher costs of negative health

18 outcomes due to ineffective communication of important healthcare information. Washington’s

19 Health Care Administration (HCA) alone experienced 47,150 patients make 149,826 claims for

20 spoken interpretation and American Sign Language services in 2013. Those numbers rose to 93,172

21 patients who made 385,295 claims in 2018, indicating a growing demand. Washington also has

22 significant demand for foreign language services to assist LEP residents with finding and

23 understanding health insurance. Washington Healthplanfinder, one of 14 health insurance

24 marketplaces nationwide created under the ACA, handled 36,422 foreign language calls in just the

25 five months from October 2018 to February 2019.

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

31

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 32 of 42

1

107. The Final Rule exacerbates existing discrimination in healthcare by reducing the

2 numbers and types of entities covered by Section 1557. For example, an individual living with

3 HIV would be protected from discrimination under Section 1557 when insured through

4 Medicaid, but not when insured through employer-provided insurance. Sara Rosenbaum, Rolling

5 Back Civil Rights Protections in Health Insurance: The Proposed 1557 Rule, Commonwealth

6 Fund (June 12, 2019), https://www.commonwealthfund.org/blog/2019/rolling-back-civil-rights-

7 protections-health-insurance-proposed-1557-rule. Americans frequently move across insurance

8 markets depending on their circumstances, and they should expect to be protected from

9 discrimination regardless of how they are insured. Also, the Proposed Rule would inexplicab ly

10 prohibit a health insurer from discriminating when it receives direct funding from HHS, but will

11 not prohibit discrimination when it receives indirect government funds in the form of favorable

12 tax treatment for employer-sponsored plans.

13

108. Additionally, many Washingtonians obtain their healthcare through programs or

14 activities—such as Medicare Part B, self-funded group health plans, or the Federal Employees

15 Health Benefits program—that would no longer be subject to Section 1557. Katie Keith, HHS

16 Proposes To Strip Gender Identity, Language Access Protections From ACA Anti-

17 Discrimination Rule, Health Affairs (May 25, 2019), https://www.healthaffairs.org/do/10.13 77/

18 hblog20190525.831858/full/. These individuals would not be protected against discrimination

19 in healthcare. The health impact for these Washington residents would be devastating if they

20 were denied timely healthcare for discriminatory reasons. Washington families would be left to

21 bear the health consequences when necessary care is delayed or denied because of

22 discrimination.

23

109. The Final Rule’s reduction in the scope of Section 1557 will harm Washington

24 and its residents.

25

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

32

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 33 of 42

1

The Final Rule will Cause Direct Injury to Washington

2

110. Washington will suffer direct injury to its proprietary interests as a result of the

3 Final Rule.

4

111. The weakening of protections for LEP individuals will result not only in poorer

5 health outcomes for LEP individuals, but also in increased costs for DOH and DOH grant

6 supported healthcare service providers, including participants in the Women, Infant, and

7 Children services programs. Other DOH programs and public services will also be burdened

8 because patients will come to them sicker due to inadequate care elsewhere.

9

112. DOH will also incur increased administrative costs in having to refer LGBTQ

10 individuals, and women with a history of pregnancy termination, to other healthcare providers

11 because the Final Rule will permit more of their providers to refuse to provide care based on a

12 religious exemption.

13

113. As a result of the Final Rule, DOH will be forced to incur substantial work and

14 mitigation costs, including analyzing the gaps in coverage and discrimination protections that

15 affected Washingtonians will experience and determining the extent to which existing State-

16 funded programs provide the coverage and services which the Final Rule will cause affected

17 Washingtonians to lose. After evaluating the impact of the Final Rule, DOH will also incur costs

18 in developing a comprehensive plan for communicating alternatives to affectedWashingtonians;

19 conducting the necessary outreach to and communication with advocacy and non-profit

20 organizations, other agencies, and the public; creating, producing, and disseminating

21 publications to these entities concerning the changes and the identified alternatives. DOH will

22 additionally have to reevaluate its budget to identify cost-savings and funds from other programs

23 that can be diverted to offset the increased demand for coverage and services previously provide d

24 by sources that will no longer provide them as a result of the Final Rule; and analyzing and

25 recommending additional expenditures by the Legislature to address any remaining health

26 disparities resulting from the Final Rule.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

33

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 34 of 42

1

114. DOH’s harm mitigation outreach costs are not optional; Washington will either

2 pay for this harm mitigation, or pay for increased subsidized services for affected individ uals

3 later.

4

115. DOH will incur increased administrative costs for referring people who have been

5 denied care because of protected status or conscience objections to providers who can provide

6 the services, which means DOH will refer people to its own programs, including primarily the

7 Family Planning Program; the Breast, Cervical, and the Colon Health Program; and the Office

8 of Infectious Disease.

9

116. The costs to the Family Planning Program; the Breast, Cervical, and the Colon

10 Health Program; and the Office of Infectious Disease are not optional. Because DOH staffing is

11 already stretched to the limit, DOH will have to deny services to people already requiring those

12 services or to the new individuals who will need those services as a result of the Final Rule, or

13 need to request additional resources to support administrative costs for increased demands on

14 these services by both groups.

15

117. The Final Rule’s religious or conscience exemptions permits discrimination and

16 refusal to treat LGBTQ individuals and women who have had pregnancies terminated. As a

17 result, DOH personnel expects that some women will come back into Washington’s system for

18 contraception and reproductive healthcare services at the cost of $579 per person on average for

19 an estimated total cost to Washington of over $900,000.

20

118. DOH also estimates that the Office of Infectious Diseases will have to spend

21 significantly more on sexually transmitted disease testing and testing for medically-unmonitored

22 hormone use, and at a total cost of at least $3,000,000 and probably closer to $10,000,000 over

23 the next decade.

24

119. Because of the lack of healthcare coverage for transgender individuals who would

25 receive gender affirming healthcare services like hormone therapies and surgical procedures

26 related to gender transition, the Washington State Department of Revenue expects that, from

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

34

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 35 of 42

1 Fiscal Year 2021 through at least Fiscal Year 2025, Washington State will lose approximately

2 $296,000 per year from business and occupation tax collections on the revenues that hospitals

3 and physicians would otherwise receive for these healthcare services.

4

120. Based on DOH’s estimates of job losses as a result of the Final Rule,

5 Washington’s Employment Security Department estimates Washington would Paid Family

6 Leave Benefit tax revenue, unemployment insurance tax revenue, and have to pay out more in

7 benefits. Specifically, Washington would lose between $9,9769 and $30,905 in Paid Family

8 Leave Benefit tax revenues over the next twenty years if every job lost paid $30,000 per year. If

9 those lost jobs paid $45,000 annually, the tax revenue loss range would be $14,954 and $46,357

10 over twenty years, and $19,938 and $61,809 if the lost jobs paid $60,000 annually.

11

121. Washington also would lose unemployment insurance tax revenue over the next

12 twenty years of between $180,480 and $559,488 if every job lost paid $30,000 annually, between

13 $270,720 and $839,232 if every job lost paid $45,000 annually, or between $339,904 and

14 $1,053,702 if every job lost paid $60,000 annually.

15

122. Over the next twenty years, Washington would have to pay out between $623,700

16 and $1,933,470 more in benefits if every job lost paid $30,000 annually, between $935,550 and

17 2,900,205 if every job lost paid $45,000 annually, or between $1,247,400 and $3,886,940 if

18 every job lost paid $60,000 annually.

19

123. Because DOH estimates greater incidence of moderate to severe depression, the

20 Washington HCA estimates greater expenditures for urgent mental health and crisis stabilization

21 care through regional Administrative Services Organizations, including between $15,743.43 and

22 $4,661.47 per year of new crisis services costs, as well as between $180,364 and $557,255 in

23 new costs for evaluations pursuant to Washington’s Involuntary Treatment Act, between

24 $650,000 and $2,006,130 in Involuntary Treatment Act detention costs, and between $728,061

25 and $2,246,865 in Involuntary Treatment Act commitment costs if the Final Rule takes effect.

26 These costs do not include additional costs for crisis care services for individuals who require

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

35

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 36 of 42

1 them because they have suffered a crisis because of substance abuse or being a victim of

2 violence.

3

124. In addition, DOH expects that, because each hospitalization costs approximately

4 $33,000 according to the Centers for Disease Control, Washington can expect to incur tens of

5 millions of dollars in costs for this over the next decades if the Final Rule takes effect.

6

125. If the Final Rule is allowed to take effect, it will require the Department of Social

7 and Health Service (DSHS)’s Aging and Long-Term Services Administration to expend

8 significant resources to revise and make changes to numerous materials, including websites,

9 policies, applications, bulletins, notices, letters, and other costs, totaling over $78,168.16.

10

126. In addition, the Final Rule would require DSHS’s Developmental Disabilit ies

11 Administration, to incur significant costs to review and make necessary changes to

12 system-generated letters, posters, websites, policies and standard operating procedures,

13 applications, client letters, contracts, bulletins, and notices, totaling over $100,000.

14

127. In sum, the impact of the Final Rule will not be isolated. In significant ly

15 narrowing Section 1557’s scope and protections, Washington will bear the financial and public

16 health burdens of protecting its residents from discrimination, of responding to the poor health

17 outcomes of residents who avoid or delay seeking treatment because of discrimination, and of

18 educating its agencies, residents, and healthcare providers of Section 1557’s new patchwork

19 application in the healthcare context.

20

V. CAUSES OF ACTION

21

FIRST CLAIM

22

Violation of Administrative Proce dure Act, 5 U.S.C. § 706(2)(A) and (C)

Not in Accordance with Law/In Excess of Statutory Authority

23

128. Washington repeats and incorporates by reference each allegation of the prior 24

paragraphs. 25

129. Defendants are subject to the APA. 26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

36

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 37 of 42

1

130. The APA provides that courts must “hold unlawful and set aside agency action,

2 findings, and conclusions found to be . . . not in accordance with law . . . [or] in excess of statutory

3 jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (C).

4

131. By eliminating gender identity, sex stereotyping, and sexual orientation from the

5 definition of “sex” and removing similar protections from ten unrelated CMS regulations, the

6 Final Rule exceeds Defendants’ statutory authority and is not in accordance with law. The Final

7 Rule contravenes Sections 1554 and 1557 of the ACA; U.S. Supreme Court precedent; other

8 controlling federal court precedent; and federal agency rules in other civil rights contexts that all

9 define “sex” as including gender identity, sex stereotyping and sexual orientation.

10

132. By narrowly construing Section 1557 to reduce the number and types of covered

11 entities subject to Section 1557, the Final Rule exceeds Defendants’ statutory authority and is

12 not in accordance with law. The Final Rule contravenes both Sections 1554 and 1557 of the

13 ACA.

14

133. By incorporating Title IX’s exemption from anti-discrimination provisions on the

15 basis of sex for religious educational institutions into Section 1557 regulations, the Final Rule

16 exceeds Defendants’ statutory authority and is not in accordance with law. The Final Rule

17 contravenes both Sections 1554 and 1557 of the ACA.

18

134. By eliminating the requirement that covered entities provide beneficiaries with

19 taglines in 15 common languages for all significant communications, the Final Rule exceeds

20 Defendants’ statutory authority and is not in accordance with law. The Final Rule contravenes

21 both Sections 1554 and 1557 of the ACA.

22

135. By removing the prohibition on discrimination on the basis of association with a

23 member of a protected class, the Final Rule exceeds Defendants’ statutory authority and is not

24 in accordance with law. The Final Rule contravenes both Sections 1554 and 1557 of the ACA;

25 controlling federal court precedent holding that anti-discrimination law protects individuals who,

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

37

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 38 of 42

1 though not members of a protected class, are victims of discriminatory hostility toward

2 associates of the individual.

3

136. For these reasons and others, the Defendants lack statutory authority for their

4 actions, which are not in accordance with law, violating 5 U.S.C. § 706(2)(A) and (C). The Final

5 Rule must be held unlawful and set aside.

6

137. Defendants’ violations cause ongoing harm to Washington’s proprietary and

7 quasi-sovereign interests and its residents.

8

SECOND CLAIM

9

Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(A) Arbitrary, Capricious, or an Abuse of Discretion

10

138. Washington repeats and incorporates by reference each allegation of the prior

11 paragraphs.

12

139. Defendants are subject to the APA.

13

140. The APA provides that courts must “hold unlawful and set aside agency action,

14 findings, and conclusions found to be . . . arbitrary, capricious, [or] an abuse of discretion.”

15 5 U.S.C. § 706(2)(A).

16

141. By eliminating gender identity, sex stereotyping, and sexual orientation from the

17 definition of “sex” in the 2016 Rule, and removing gender identity and sexual orientation from

18 ten CMS regulations, HHS reversed its position without reasoned explanation. HHS acted

19 arbitrarily, capriciously, and abused its discretion by, among other things, failing to distinguish

20 contrary precedent, failing to provide a reasoned analysis for the change, offering an explanation

21 that runs counter to the evidence before it, and failing to consider important aspects of the

22 problem, including properly weighing the costs and benefits of the Final Rule.

23

142. By narrowly construing Section 1557 to reduce the number and types of entities

24 subject to Section 1557 under the Final Rule, HHS reversed position without reasoned

25 explanation. HHS acted arbitrarily, capriciously, and abused its discretion by failing to provide

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

38

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 39 of 42

1 a reasoned analysis for the change, offering an explanation that runs counter to the evidence

2 before it, and failing to consider important aspects of the problem, including properly weighing

3 the costs and benefits of the Final Rule.

4

143. By incorporating Title IX’s exemption from anti-discrimination provisions on the

5 basis of sex for religious educational institutions into Section 1557’s regulation, HHS reverses

6 its position without reasoned explanation. HHS acted arbitrarily, capriciously, and abused its

7 discretion by, among other things, failing to provide a reasoned analysis for the change, offering

8 an explanation that runs counter to the evidence before it, and failing to consider important

9 aspects of the problem, including properly weighing the costs and benefits of the Final Rule.

10

144. By eliminating the requirement contained in the 2016 Rule that covered entities

11 provide beneficiaries with taglines in 15 common languages for all significant communicatio ns,

12 HHS reversed its position without reasoned explanation. HHS acted arbitrarily, capriciously, and

13 abused its discretion by, among other things, failing to provide a reasoned analysis for the

14 change, offering an explanation that runs counter to the evidence before it, and failing to conside r

15 important aspects of the problem, including properly weighing the costs and benefits of the Final

16 Rule.

17

145. By removing the prohibition on discrimination on the basis of association with a

18 member of a protected class in the 2016 Rule, HHS reversed position without reasoned

19 explanation. HHS acted arbitrarily, capriciously, and abused its discretion by, among other

20 things, failing to distinguish contrary precedent, failing to provide a reasoned analysis for the

21 change, offering an explanation that runs counter to the evidence before it, and failing to conside r

22 important aspects of the problem, including the costs and benefits of the Final Rule.

23

146. For these reasons above and others, HHS acted arbitrarily, capriciously, or abused

24 its discretion in making the Final Rule, violating 5 U.S.C. § 706(2)(A). The 2020 Rule must be

25 held unlawful and set aside.

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

39

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 40 of 42

1

147. Defendants’ violation causes ongoing harm to Washington’s proprietary and

2 quasi-sovereign interests and its residents.

3

THIRD CLAIM

4

Contrary to Equal Protection, U.S. Const. amend. V.

148. Washington repeats and incorporates by reference each allegation of the prior 5

paragraphs. 6

149. The Fifth Amendment to the U.S. Constitution provides that no person shall be 7

deprived of life, liberty, or property without due process of law. This Due Process Clause 8

prohibits the federal government from denying any person equal protection under the law. 9

150. Discrimination on the basis of sex, including gender identity, sex stereotyping, 10

and sexual orientation, denies LGBTQ individuals their constitutional right to equal protection 11

under the law. 12

151. By eliminating gender identity, sex stereotyping, and sexual orientation from the 13

definition of “sex” and removing sexual orientation and gender identity from ten CMS 14

regulations, the Final Rule discriminates against LGBTQ individuals based on sex. 15

152. By removing these categories from definition of “sex,” HHS intended the Final 16

Rule to have, and the Final Rule will have, the effect of stigmatizing LGBTQ individuals as 17

second-class citizens in violation of equal protection guarantees. 18

153. Discrimination on the basis of sex at a minimum requires courts to apply 19

intermediate or heightened scrutiny in evaluating the constitutionality of the government’s 20

discrimination. 21

154. HHS has no legitimate justification for such disparate treatment, let alone an 22

important or compelling interest that is constitutionally justified. 23

155. The Final Rule violates the equal protection component of the Fifth Amendment 24

of the U.S. Constitution and must be vacated. 25

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

40

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 41 of 42

1

156. Defendants’ violation causes ongoing harm to Washington’s proprietary and

2 quasi-sovereign interests and its residents.

3

FOURTH CLAIM

4

Contrary to Substantive Due Process, U.S. Const. amend. V.

157. Washington repeats and incorporates by reference each allegation of the prior 5

paragraphs. 6

158. The Fifth Amendment to the United States Constitution provides that no person 7

shall be deprived of life, liberty, or property without due process of law. The Due Process Clause 8

guarantees to individuals the fundamental right to make certain decisions central to privacy, 9

bodily autonomy, integrity, self-definition, intimacy, and personhood free from unjustified 10

governmental intrusion. 11

159. By eliminating gender identity, sex stereotyping, and sexual orientation from the 12

definition of “sex” under Section 1557 and removing gender identity and sexual orientation from 13

ten CMS regulations, HHS violates the Fifth Amendment’s substantive due process guarantee. 14

HHS invites healthcare providers and insurers to interfere with a patient’s access to medical care 15

and their ability to choose how to live and express themselves, consistent with their sex, sexual 16

orientation, or gender identity. 17

160. There is no constitutionally adequate justification for Defendants’ infringing on 18

a patient’s fundamental rights in this way. 19

161. The Final Rule violates the substantive due process guarantee of the Fifth 20

Amendment of the U.S. Constitution and must be vacated. 21

162. Defendants’ violation causes ongoing harm to Washington’s proprietary and 22

quasi-sovereign interests and its residents. 23

24

25

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

41

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

Case 2:20-cv-01105-JLR Document 1 Filed 07/16/20 Page 42 of 42

1

VI. PRAYER FOR RELIEF

2

Wherefore, Washington respectfully requests that this Court:

3

163. Declare that the Final Rule exceeds Defendants’’ statutory authority and is

4 unauthorized by and contrary to the Constitution and laws of the United States;

5

164. Declare that the Final Rule violates the APA because it is contrary to the enacted

6 legislation and Congressional intent, is arbitrary and capricious, and an abuse of discretion;

7

165. Vacate the Final Rule;

8

166. Issue an injunction prohibiting Defendants from implementing or enforcing the

9 Final Rule;

10

167. Award the State of Washington its costs and reasonable attorneys’ fees; and

11

168. Award such other and further relief as the interests of justice may require.

12

13

DATED this 16th day of July, 2020.

14

Respectfully Submitted,

15

ROBERT W. FERGUSON

16

Attorney General

17

s/ Neal Luna

18

NEAL LUNA, WSBA No. 34085

MARSHA CHIEN, WSBA No. 47020

19

BRIAN SUTHERLAND, WSBA No. 37969

Assistant Attorneys General

20

Attorneys for Plaintiff State of Washington

21

Wing Luke Civil Rights Division Office of the Attorney General

22

800 Fifth Avenue, Suite 2000

Seattle, WA 98104-3188

23

Phone: (206) 464-7744

Marsha.Chien@atg.wa.gov

24

Neal.Luna@atg.wa.gov

25

Brian.Sutherland@atg.wa.gov

26

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

42

ATTORNEY G ENERAL OF WASHING TON

Civil Rights Division

800 Fifth Avenue, Suite 2000

Seattle, WA 98104

(206) 464-7744

 
 Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 1 of 19

1
The Honorable James L. Robart
2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

11

12
STATE OF WASHINGTON,
13
Plaintiff,
14
v.
15
UNITED STATES DEPARTMENT OF 16 HEALTH AND HUMAN SERVICES; ALEX
M. AZAR, in his official capacity as the 17 Secretary of the United States Department of
Health and Human Services,
18
Defendants.
19

No. 2:20-cv-01105-JLR
AMICUS CURIAE BRIEF BY LOCAL GOVERNMENT AMICI IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Noted for: August 7, 2020

20

21

22

23

24

25

26

27

28
Amicus Curiae Brief by Local Government Amici in Support of Plaintiff 2:20-cv-01105-JLR

1
Office of the County Counsel, County of Santa Clara 70 West Hedding St. East Wing, 9th Floor, San José, CA 95110
(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 2 of 19

1

TABLE OF CONTENTS

2

3 INTEREST OF AMICI CURIAE..................................................................................................1

4 ARGUMENT..................................................................................................................................1

5

I. The ACA Enables Local Governments to Provide Better Healthcare ......................1

6

II. Discrimination Against Our LGBTQ Residents Imperils Public Health and

7

Welfare ....................................................................................................................4

8

III. The Final Rule Undermines the Trust Necessary for Healthy Communities ........8

9 CONCLUSION ..............................................................................................................................9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
Amicus Curiae Brief by Local Government Amici in Support of Plaintiff 2:20-cv-01105-JLR

i
Office of the County Counsel, County of Santa Clara 70 West Hedding St. East Wing, 9th Floor, San José, CA 95110
(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 3 of 19

1

TABLE OF AUTHORITIES

2

CASES

3

Bostock v. Clayton County Georgia,

4

140 S. Ct. 1731 (2020) ........................................................................................................4

5 Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020) ........................................................................................................1
6

Franciscan All., Inc. v. Azar,

7

414 F. Supp. 3d 928 (N.D. Tex. 2019) ...............................................................................8

8 Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016) ...............................................................................8
9

King v. Burwell,

10

135 S. Ct. 2480 (2015) ........................................................................................................3

11 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)............................................................................................................2
12

Roberts v. U.S. Jaycees,

13

468 U.S. 609(1984).............................................................................................................4

14 Romer v. Evans, 517 U.S. 620 (1996)............................................................................................................9
15

Texas v. United States,

16

340 F. Supp. 3d 579 (N.D. Tex. 2018) ...............................................................................8

17

OTHER AUTHORITIES

18

Larisa Antonisse et al., Kaiser Family Found.,

19

The Effects of Medicaid Expansion Under the ACA: Updated Findings from a

Literature Review (Mar. 28, 2018) ......................................................................................3
20

Maureen R. Benjamins & Steven Whitman,

21

Relationships Between Discrimination in Health Care and Health Care Outcomes

Among Four Race/Ethnic Groups, 37 J. Behav. Med. 403 (2014) ......................................6
22

Valarie K. Blake,

23

Remedying Stigma-Driven Health Disparities in Sexual Minorities, 17 Housing J.

Health L. & Pol’y (2017) .....................................................................................................4
24

Ctrs. for Disease Control & Prevention,

25

Coronavirus Disease 2019: People Who Are at Higher Risk (Apr. 15, 2020) ...................3

26 Eileen Condon et al.,

Associations Between Maternal Experiences of Discrimination and Biomarkers of

27

Toxic Stress in School-Aged Children, 23 Maternal & Child Health J. 1147 (2019) ..........6

28
Amicus Curiae Brief by Local Government Amici in Support of Plaintiff 2:20-cv-01105-JLR

ii
Office of the County Counsel, County of Santa Clara 70 West Hedding St. East Wing, 9th Floor, San José, CA 95110
(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 4 of 19

1 Nia J. Heard-Garris et al.,

Transmitting Trauma: A Systematic Review of Vicarious Racism and Child Health,

2

199 Soc. Science & Med. (2018) .........................................................................................6

3 Gregory M. Herek,

Confronting Sexual Stigma and Prejudice: Theory and Practice, 63 J. Soc. Issues 905

4

(2007) ...................................................................................................................................4

5 Human Rights Campaign,

San José, California 2019 Municipal Equality Index Scorecard .......................................7

6

Lambda Legal,

7

When Health Care Isn’t Caring: Lambda Legal’s Survey of Discrimination Against

LGBT People and People with HIV (2010) .........................................................................4

8

Larissa A. McGarrity & David M. Huebner,

9

Is Being Out About Sexual Orientation Uniformly Healthy?: The Moderating Role of

Socioeconomic Status in a Prospective Study of Gay and Bisexual Men, 47 Annals

10

Behav. Med. 28 (2014) ........................................................................................................6

11 Nat’l Ass’n of Cty’s,

Counties’ Role in Health Care Delivery and Financing (July 2007) .................................2

12

Office of Disease Prevention and Health Promotion,

13

Access to Health Services, Healthy People 2020................................................................6

14 Office of Disease Prevention and Health Promotion,

Discrimination, Healthy People 2020.................................................................................6

15

Yin Paradies,

16

A Systematic Review of Empirical Research on Self-reported Racism and Health, 35

Int’l J. Epidemiology 888 (2006).........................................................................................5

17

Elizabeth A. Pascoe & Laura Smart Richman,

18

Perceived Discrimination and Health: A Meta-Analytic Review, 135 Psych. Bull. 513

(2009) ...................................................................................................................................5

19

Eileen Salinsky,

20

Nat’l Health Policy Forum, Governmental Public Health: An Overview of State and

Local Public Health Agencies (Aug. 18, 2010) ...................................................................2

21

Benjamin T. Squire et al.,

22

At-Risk Populations and the Critically Ill Rely Disproportionately on Ambulance

Transport to Emergency Departments, 56 Annals Emergency Med. 341 (2010) ...............2

23

The Nat’l Academies’ Inst. of Med.,

24

Care Without Coverage: Too Little, Too Late (2002) ........................................................2

25 Sarah Wamala et al.,

Perceived Discrimination, Socioeconomic Disadvantage and Refraining from

26

Seeking Medical Treatment in Sweden, 61 J. Epidemiology Community Health 409

(2006) ...................................................................................................................................5

27

28
Amicus Curiae Brief by Local Government Amici in Support of Plaintiff 2:20-cv-01105-JLR

iii
Office of the County Counsel, County of Santa Clara 70 West Hedding St. East Wing, 9th Floor, San José, CA 95110
(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 5 of 19

1 David R. Williams et al.,

Racial/Ethnic Discrimination and Health: Findings From Community Studies, 93

2

Am. J. Pub. Health 200 (2003) ............................................................................................5

3 Williams Institute, UCLA Sch. of Law,

How Many Same-Sex Couples in the US Are Raising Children? (2018)...........................6

4

Williams Institute, UCLA Sch. of Law,

5

Research Report on LGB-Parent Families (2014) .............................................................6

6

RULES AND REGULATIONS

7
45 C.F.R. pt. 92 ................................................................................................................................1
8
81 Fed. Reg. 31,376 .........................................................................................................................1
9
85 Fed. Reg. 37,160 .........................................................................................................................1
10
STATUTES
11

12 42 U.S.C. § 300gg............................................................................................................................3

13 42 U.S.C. § 300gg-1 ........................................................................................................................3

14 42 U.S.C. § 300gg-3 ........................................................................................................................3

15 42 U.S.C. § 300gg-4 ........................................................................................................................3

16 42 U.S.C. § 300gg-4 ........................................................................................................................3

17 42 U.S.C. § 300gg-11 ......................................................................................................................3

18 42 U.S.C. § 300gg-12 ......................................................................................................................3

19 42 U.S.C. § 300gg-19 ......................................................................................................................3

20 42 U.S.C. § 18022 ...........................................................................................................................3

21

22

23

24

25

26

27

28
Amicus Curiae Brief by Local Government Amici in Support of Plaintiff 2:20-cv-01105-JLR

iv
Office of the County Counsel, County of Santa Clara 70 West Hedding St. East Wing, 9th Floor, San José, CA 95110
(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 6 of 19

1

INTEREST OF AMICI CURIAE1

2

Amici are 31 counties, cities, and towns located throughout the United States, including

3 throughout the State of Washington. Amici range from sprawling seaport cities such as Seattle, to

4 rugged, rural mountain cities such as Driggs, Idaho. Notwithstanding our differences, amici are

5 united in our opposition to the U.S. Department of Health and Human Services’ (HHS) Affordable 6 Care Act (ACA) Section 1557 Final Rule.2 The Final Rule withdraws nondiscrimination protections

7 from many of our most at-risk residents in intimate and important healthcare contexts, gutting 8 HHS’s prior 2016 Rule.3 It eliminates Section 1557’s nondiscrimination protections based on sexual

9 orientation and gender identity, excludes health insurance and non-ACA health programs from

10 nondiscrimination obligations, and exempts religious entities from providing nondiscriminatory care, 11 among other things.4 In so doing, the Final Rule directly harms our residents, communities, and

12 local governments, and erodes our ability to foster inclusive communities in which everyone has the

13 right to respect and the opportunity to lead a healthy, independent life. By utterly ignoring these

14 harms, HHS violates the basic requirements of administrative rulemaking. See Dep’t of Homeland

15 Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1915 (2020). The Final Rule should be

16 preliminarily enjoined.

17

ARGUMENT

18 I. The ACA Enables Local Governments to Provide Better Healthcare

19

As local governments, amici are responsible, often by legal mandates and always by practical

20 realities, for protecting the health and safety of our communities. We assist children and the elderly,

21

22 1 No counsel for a party authored this brief in whole or in part, and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than
23 amici or their counsel made a monetary contribution to this brief’s preparation or submission. Counsel for all parties consented to the filing of this brief.
24
2 Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. 25 Reg. 37,160 (June 19, 2020) (to be codified at 42 C.F.R. pts. 438, 440, & 460 and 45 C.F.R. pts. 86, 92, 147,
155, & 156) (“Final Rule”).

26 3 Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376 (May 18, 2016) (formerly

codified at 45 C.F.R. pt. 92) (2016 Rule) (“2016 Rule”).
27
4 The Final Rule imposes numerous other extremely harmful provisions, but amici address only these three

28

provisions because they form the exclusive basis for the State of Washington’s preliminary injunction motion. 1

Amicus Curiae Brief by Local Government Amici

Office of the County Counsel, County of Santa Clara

in Support of Plaintiff

70 West Hedding St. East Wing, 9th Floor, San José, CA 95110

2:20-cv-01105-JLR

(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 7 of 19

1 operate law enforcement agencies and jail facilities, provide emergency medical transportation and

2 safety-net healthcare services, and, as we have witnessed recently all across the nation during the

3 COVID-19 pandemic, perform critical public health work. Amici administer the “smaller

4 governments closer to the governed” “that touch on citizens’ daily lives.” Nat’l Fed’n of Indep. Bus.

5 v. Sebelius, 567 U.S. 519, 536 (2012) (NFIB). Amici are often the only entities with the ability to

6 perform these vital public functions that are necessary for our residents to be healthy, productive

7 members of society.

8

Amici are also obligated to provide many healthcare services to our residents regardless of

9 their ability to pay.5 We do not, and cannot, condition emergency transportation in our ambulances,

10 examination and treatment in our public health clinics and emergency departments, emergent care in

11 our safety-net hospitals, or use of our suicide hotlines or mobile crisis services on one’s ability to

12 pay the bill. See NFIB, 567 U.S. at 593 (opinion of Ginsburg, J.). Thus, when our residents are less

13 healthy or more reliant on safety-net services, amici incur greater direct costs.

14

Amici bear massive, but avoidable, direct costs from the less effective, less timely, and more

15 expensive care people seek when they delay or forgo healthcare. For example, in the County of

16 Santa Clara, it costs thousands more to treat an uninsured person who contracts HIV/AIDS than it

17 does to provide that resident with preventative one-pill-a-day pre-exposure prophylaxis (PrEP)

18 medication. Without primary and preventative care, prescription drugs, and early diagnosis and

19 treatment, our residents are sicker and more costly to treat, and also more likely to access healthcare 20 through highly costly means, such as by ambulance calls or emergency department visits.6 In the

21

22 5 See, e.g., Nat’l Ass’n of Cty’s, Counties’ Role in Health Care Delivery and Financing 3, 5-15 (July 2007),

archived at https://perma.cc/Z6SX5JD5; Eileen Salinsky, Nat’l Health Policy Forum, Governmental Public

23 Health: An Overview of State and Local Public Health Agencies 9-10 (Aug. 18, 2010), archived at

https://perma.cc/E48M-ADZH.

24 6 “Because those without insurance generally lack access to preventative care, they do not receive treatment

for conditions—like hypertension and diabetes—that can be successfully and affordably treated if diagnosed 25 early on. When sickness finally drives the uninsured to seek care, once treatable conditions have escalated

26

into grave health problems, requiring more costly and extensive intervention.” NFIB, 567 U.S. at 594 (internal citations omitted) (opinion of Ginsburg, J.); see also The Nat’l Academies’ Inst. of Med., Care

27

Without Coverage: Too Little, Too Late (2002), archived at https://perma.cc/T542-Q8YP; Benjamin T. Squire et al., At-Risk Populations and the Critically Ill Rely Disproportionately on Ambulance Transport to

28

Emergency Departments, 56 Annals Emergency Med. 341, 346 (2010). 2

Amicus Curiae Brief by Local Government Amici in Support of Plaintiff

Office of the County Counsel, County of Santa Clara 70 West Hedding St. East Wing, 9th Floor, San José, CA 95110

2:20-cv-01105-JLR

(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 8 of 19

1 absence of capable, culturally competent care, our residents are more likely to develop chronic

2 diseases—the persistent, prevalent, but preventable conditions such as hypertension, diabetes, certain

3 heart diseases, and obesity, that are among the most common and costly of America’s health 4 problems, and that increase the risk of severe illness from COVID-19.7 Without early behavioral

5 healthcare, mental health and substance use costs also swell, potentially forcing amici to divert finite

6 funds from other critical functions or to further tax the public.

7

By prohibiting discrimination in healthcare and enhancing access to care, the ACA allowed

8 many amici to deliver the ongoing primary and preventative healthcare services that produce better

9 health outcomes for our residents sooner, in more appropriate settings, and at lesser expense. With 10 the support of the ACA’s health insurance expansions and its array of patient-protective provisions,8

11 state and local governments have saved billions in reduced uncompensated care costs in the decade 12 since the ACA was enacted. 9

13

The Final Rule threatens these gains. It is intended and expected to reduce individuals’

14 access to needed insurance benefits, promote refusals of needed services, authorize discriminatory

15 and substandard care, and, ultimately, disconnect entire communities from the primary and

16 preventative healthcare services that lead to better health outcomes at lesser expense. “It is

17 implausible that Congress meant the Act to operate in this manner.” King v. Burwell, 135 S. Ct.

18 2480, 2493 (2015).

19 / / /

20 / / /

21

22
7 Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019: People Who Are at Higher Risk (Apr. 23 15, 2020), archived at https://perma.cc/UR8W-LNYU.

24 8 See, e.g., 42 U.S.C. §§ 300gg-1, 300gg-3, 300gg-4(a) (preventing health insurance denials because of people’s pre-existing conditions); 300gg, 300gg-4(b) (barring higher premium charges based on health
25 status); 300gg-11 (prohibiting lifetime or annual limits on the value of essential health benefits); 300gg-12 (banning rescission, a previously common practice where insurance companies rescinded coverage when the
26 insured suffered a catastrophic illness); 300gg-19 (guaranteeing beneficiaries the right to appeal adverse coverage decisions); 18022(c) (imposing annual out-of-pocket maximums for covered benefits).

27 9 See, e.g., Larisa Antonisse et al., Kaiser Family Found., The Effects of Medicaid Expansion Under the ACA:

Updated Findings from a Literature Review 8-11 (Mar. 28, 2018), archived at https://perma.cc/GU93-U9DE.

28

3

Amicus Curiae Brief by Local Government Amici

Office of the County Counsel, County of Santa Clara

in Support of Plaintiff

70 West Hedding St. East Wing, 9th Floor, San José, CA 95110

2:20-cv-01105-JLR

(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 9 of 19

1 II. Discrimination Against Our LGBTQ Residents Imperils Public Health and Welfare

2

Laws embodying a “commitment to eliminating discrimination … serve[] compelling state

3 interests of the highest order.” Roberts v. U.S. Jaycees, 468 U.S. 609, 624 (1984).

4 Nondiscrimination laws like Section 1557, which embody this commitment, make it clear that

5 everyone deserves equal treatment and safety in the delivery of their healthcare. Despite this

6 commitment in the ACA, and despite the dispositive and recent command of the Supreme Court in

7 Bostock v. Clayton County Georgia, 140 S. Ct. 1731 (2020), the Final Rule nevertheless enshrines

8 exclusion into Section 1557’s facially neutral federal nondiscrimination provisions. The Final Rule

9 itself stigmatizes and harms.

10

As the State of Washington details, the Final Rule also enables healthcare providers to reject,

11 humiliate, demean, and discriminate against people in need of life-affirming and lifesaving

12 healthcare. Such discrimination is already rampant: in a 2010 survey, 70 percent of transgender

13 respondents and nearly 56 percent of lesbian, gay, or bisexual respondents reported “being refused

14 needed care; health care professionals refusing to touch them or using excessive precautions; health

15 care professionals using harsh or abusive language; being blamed for their health status; or health 16 care professionals being physically rough or abusive.”10 In a study of LGBTQ adults, “13% reported

17 having objects thrown at them, 23% reported being threatened with violence, . . . almost half were 18 targets of verbal abuse,” and “21% reported violence or a property crime.”11

19

The discrimination that the Final Rule enacts and invites harms health in ways that endure

20 beyond a specific encounter or episode. The lasting negative effects of discrimination on health are

21 well-researched, abundant, and severe: discrimination “has a significant negative effect on both

22 mental and physical health, . . . produces significantly heightened stress responses, and is related to

23

24

25
10 Lambda Legal, When Health Care Isn’t Caring: Lambda Legal’s Survey of Discrimination Against LGBT

26 People and People with HIV (2010), archived at https://perma.cc/UF9F-444M.

11 Valarie K. Blake, Remedying Stigma-Driven Health Disparities in Sexual Minorities, 17 Housing J. Health 27 L. & Pol’y 181, 201-02 (2017), archived at https://perma.cc/Q3Q4-J554 (citing Gregory M. Herek,

Confronting Sexual Stigma and Prejudice: Theory and Practice, 63 J. Soc. Issues 905, 908-09 (2007)).

28

4

Amicus Curiae Brief by Local Government Amici

Office of the County Counsel, County of Santa Clara

in Support of Plaintiff

70 West Hedding St. East Wing, 9th Floor, San José, CA 95110

2:20-cv-01105-JLR

(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 10 of 19

1 participation in unhealthy and nonparticipation in healthy behaviors.”12 Discrimination is linked by

2 substantial evidence to a range of negative mental health outcomes, including depression, 3 psychological distress, anxiety, and diminished well-being.13 Physically, discrimination causes

4 “exaggerated cardiovascular responses to stress,” as exhibited by changes in blood pressure and

5 cortisol levels and other negative physical effects, all of which “may erode an individual’s protective 6 resources and increase vulnerability to physical illness” and “lead to wear and tear on the body.”14 It

7 thus increases the risk of certain diseases, such as depression, obesity, schizophrenia, heart disease, 8 metabolic syndrome, rheumatoid arthritis, fibromyalgia, and allergic conditions.15 Discrimination

9 also “leave[s] individuals with less energy or resources for making healthy behavior choices,” which

10 leads to “health behaviors that have clear links to disease outcomes,” as well as “nonparticipation in 11 behaviors that promote good health,” such as seeking preventative healthcare.16 Indeed, people who 12 experience frequent discrimination are three to nine times less likely to seek healthcare.17 When

13 patients who face or fear facing discrimination from their healthcare providers do seek medical care,

14 the care they receive is less effective. The patients are less likely to disclose important clinical 15 information,18 less likely to comply with their providers’ recommendations, and more likely to report

16

17

18
12 Elizabeth A. Pascoe & Laura Smart Richman, Perceived Discrimination and Health: A Meta-Analytic 19 Review, 135 Psych. Bull. 513, 513 (2009).

20 13 Id. (citing Yin Paradies, A Systematic Review of Empirical Research on Self-reported Racism and Health, 35 Int’l J. Epidemiology 888–901 (2006); David R. Williams et al., Racial/Ethnic Discrimination and Health:
21 Findings From Community Studies, 93 Am. J. Pub. Health 200–08 (2003)).
14Id. at 513-14.
22
15 Id. at 544.

23 16 Elizabeth A. Pascoe & Laura Smart Richman, Perceived Discrimination and Health: A Meta-Analytic
Review, 135 Psych. Bull. 513, 514 (2009) (describing how discrimination leads individuals to make decisions 24 that lead to health negatives outcomes, such as smoking, alcohol and substance abuse, and unprotected sex,
and to avoid protective behaviors, such as cancer screenings and diabetes self-management).
25
17 Sarah Wamala et al., Perceived Discrimination, Socioeconomic Disadvantage and Refraining from Seeking
26 Medical Treatment in Sweden, 61 J. Epidemiology Community Health 409, 409 (2006), archived at https://perma.cc/9R2P-VPK6.

27 18 Valarie K. Blake, Remedying Stigma-Driven Health Disparities in Sexual Minorities, 17 Housing J. Health

L. & Pol’y 181, 211 (2017).

28

5

Amicus Curiae Brief by Local Government Amici

Office of the County Counsel, County of Santa Clara

in Support of Plaintiff

70 West Hedding St. East Wing, 9th Floor, San José, CA 95110

2:20-cv-01105-JLR

(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 11 of 19

1 receiving poor quality care.19 Concealing one’s LGBTQ status from a healthcare provider, in

2 particular, is associated with worse mental health outcomes, greater risk of cancer, greater risk of 3 infectious disease, and more rapid HIV symptoms.20 HHS itself is well aware of the harms of

4 discrimination, including against LGBTQ people in particular, and recognizes discrimination as a 5 key component of individual and public health.21

6

The harms from discrimination ripple out into our communities as a whole. When our

7 LGBTQ community members are subjected to discrimination, the welfare of their children is also

8 jeopardized, including the welfare of the foster and adopted children whom same-sex couples so 9 often rear and raise.22 Discrimination against a parent or caregiver is associated with poor health

10 outcomes for children, including potentially lasting physical, mental, socioemotional, and 11 developmental harms.23 The cascading costs of discrimination are especially expensive for local

12 governments, which bear primary responsibility for managing public safety-net benefits, economic

13 supports, child welfare systems, and emergency and transitional housing.

14

15

16 19 Maureen R. Benjamins & Steven Whitman, Relationships Between Discrimination in Health Care and Health Care Outcomes Among Four Race/Ethnic Groups, 37 J. Behav. Med. 403 (2014).
17
20 Valarie K. Blake, Remedying Stigma-Driven Health Disparities in Sexual Minorities, 17 Housing J. Health 18 L. & Pol’y 181, 211 (2017) (citing Larissa A. McGarrity & David M. Huebner, Is Being Out About Sexual
Orientation Uniformly Healthy?: The Moderating Role of Socioeconomic Status in a Prospective Study of 19 Gay and Bisexual Men, 47 Annals Behav. Med. 28, 28–29 (2014)).
21 Office of Disease Prevention and Health Promotion, Discrimination, Healthy People 2020, archived at 20 https://perma.cc/C3GG-3VKD (HHS decade-long Healthy People 2020 public health campaign); see also
Office of Disease Prevention and Health Promotion, Access to Health Services, Healthy People 2020, 21 archived at https://perma.cc/8HB4-WLZV.

22 22 Williams Institute, UCLA Sch. of Law, How Many Same-Sex Couples in the US Are Raising Children? (2018), archived at https://perma.cc/56AA-HJJJ (finding “[s]ame-sex couples with children were far more
23 likely than male/female couples with children to have an adopted child (21.4% versus 3.0%) and/or a foster child (2.9% versus 0.4%)”); Williams Institute, UCLA Sch. of Law, Research Report on LGB-Parent
24 Families (2014), archived at https://perma.cc/S3QP-UVHG (“Same-sex couples are approximately 4.5 times more likely than different-sex couples to be rearing adopted children.”).

25 23 Eileen Condon et al., Associations Between Maternal Experiences of Discrimination and Biomarkers of

Toxic Stress in School-Aged Children, 23 Maternal & Child Health J. 1147-51 (2019); see also Nia J. Heard26 Garris et al., Transmitting Trauma: A Systematic Review of Vicarious Racism and Child Health, 199 Soc.

Science & Med. 230-40 (2018), archived at https://perma.cc/WVJ5-Z7EW ) (longitudinal meta-analysis 27 finding vicarious discrimination against caregivers associated with physical, mental, socioemotional, and

developmental harms for children).

28

6

Amicus Curiae Brief by Local Government Amici

Office of the County Counsel, County of Santa Clara

in Support of Plaintiff

70 West Hedding St. East Wing, 9th Floor, San José, CA 95110

2:20-cv-01105-JLR

(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 12 of 19

1

Many amici invest heavily to help counteract the weight of healthcare discrimination against

2 their LGBTQ residents. The City of Chicago funds community-based organizations that specialize

3 in providing care for LGBTQ residents who face discrimination from multiple intersectional

4 characteristics, and it hires its own City staff solely to provide LBGTQ-specific resources. Howard

5 County invests in outreach, community engagement work, and complaint investigations to serve its

6 LGBTQ residents. The City of Oakland contracts for safe spaces for its LGBTQ children and youth

7 based on its real-world recognition of the harms from rejection and discrimination to children and

8 the need for care linkages and referrals to welcoming and supportive providers. The County of Los

9 Angeles conducts provider education on how to competently care for transgender and gender

10 nonconforming patients and also runs an LGBTQ committee for each of its medical centers. These

11 policies make a palpable difference: LGBTQ patients consistently report that accessing care at the

12 County’s medical centers has changed their lives. The City of West Hollywood launched an HIV

13 Zero Initiative to reduce the spread of, and harms from, HIV/AIDS, targeting its LGBTQ community

14 because nearly all new HIV infections in the City are among gay and bisexual men.

15

Even in jurisdictions with deep commitments to inclusivity, discrimination against LGBTQ

16 people in healthcare is pervasive. The County of Santa Clara, for example, has long been a leader in

17 supporting LGBTQ rights—becoming the first county in the nation to establish an office dedicated

18 to serving the LGBTQ community and, later, the first health system in its region to open a clinic

19 specializing in healthcare for transgender, non-binary, and gender diverse people. The County’s

20 Office of LGBTQ Affairs has delivered trainings on how to provide LGBTQ-competent care to

21 thousands of healthcare providers and champions LGBTQ community engagement work to build

22 trust in County services. San José, the largest city in the County, earns a 100% score on the Human 23 Rights Campaign’s municipal equality index.24 Yet nondiscrimination in healthcare in the County

24 remains a major need and focus. The County regularly receives complaints about providers who

25 deliberately call patients by the wrong names and the wrong pronouns, ask unnecessary questions

26

27 24 Human Rights Campaign, San José, California 2019 Municipal Equality Index Scorecard, archived at

https://perma.cc/4PL6-L2EQ.

28

7

Amicus Curiae Brief by Local Government Amici

Office of the County Counsel, County of Santa Clara

in Support of Plaintiff

70 West Hedding St. East Wing, 9th Floor, San José, CA 95110

2:20-cv-01105-JLR

(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 13 of 19

1 about patients’ genitals, house people in residential treatment settings in ways that threaten their

2 safety, and block access to gender-affirming care. The County’s Gender Health Center was never

3 meant to be the primary point of service for thousands of LGBTQ residents, yet all too often it must

4 serve as just that due to discrimination elsewhere. Until recently, many primary care providers in the

5 County who serve high numbers of LGBTQ patients did not know that they had LGBTQ patients, let

6 alone that they were failing them and failing to offer critical medications and screenings to prevent

7 costly lifelong conditions such as HIV/AIDS.

8 III.The Final Rule Undermines the Trust Necessary for Healthy Communities

9

The primary and preventative healthcare transformation that the ACA enabled depends on

10 trust—the trust that it takes to seek care, early and proactively; the trust that it takes to undergo

11 intimate examination and treatment; and the trust to listen and comply with a doctor’s orders.

12 Discrimination in healthcare shatters that trust. So much more must be done before even our most

13 inclusive health systems offer truly welcoming supportive care that earns the trust of all our patients.

14 The Final Rule eliminates even the hope that nondiscriminatory care is a shared goal. It directly

15 harms our residents, communities, and local governments and frays the fragile trust that amici invest

16 so much to create. These harms are all the more urgent and irreparable in the midst of a pandemic in

17 which our collective health so clearly depends on that of our neighbors.

18

Contrary to all of the foregoing, Defendants say the Final Rule will have “minimal” practical

19 effect because Defendants already made much of the 2016 Rule ineffective by failing to appeal 20 orders partially enjoining and then vacating it,25 and because some states, localities, and covered 21 entities may protect patients anyway.26 If the effect of the 2020 Rule were indeed minimal,

22

23

25 The same court that declared the entire 900-page omnibus ACA unconstitutional and invalid because of a 24 single sentence also partially enjoined and vacated the 2016 Rule. See Texas v. United States, 340 F. Supp.

25

3d 579 (N.D. Tex. 2018), affirmed in part, reversed in part, 945 F.3d 355, cert granted, Nos. 19-1019 & 19840 (U.S. 2020); Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660, 696 (N.D. Tex. 2016) (partially

26 enjoining the 2016 Rule); Franciscan All., Inc. v. Azar, 414 F. Supp. 3d 928, 947 (N.D. Tex. 2019) (partially vacating the 2016 Rule). Defendants’ unreviewable decision not to appeal that court’s vacatur of the 2016

27 Rule cannot now insulate Defendants’ rule change from judicial review.

26 85 Fed. Reg. at 37,225.
28
Amicus Curiae Brief by Local Government Amici in Support of Plaintiff 2:20-cv-01105-JLR

8
Office of the County Counsel, County of Santa Clara 70 West Hedding St. East Wing, 9th Floor, San José, CA 95110
(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 14 of 19

1 Defendants’ symbolic effort to make LGBTQ people “unequal to everyone else” would be all the

2 more concerning. See Romer v. Evans, 517 U.S. 620, 635 (1996). Instead, however, the 2020 Rule

3 creates and compounds harmful and costly health disparities, even in jurisdictions like the State of

4 Washington that are committed to pluralism and respect for everyone.

5

CONCLUSION

6

Amici urge the Court to preliminarily enjoin the Final Rule.

7

8 Dated: August 7, 2020
9

Respectfully submitted, JAMES R. WILLIAMS COUNTY COUNSEL

10

11

By: /s/ Lorraine Van Kirk

James R. Williams, County Counsel

12

Greta S. Hansen, Chief Assistant County Counsel

Douglas M. Press, Assistant County Counsel

13

Laura S. Trice, Lead Deputy County Counsel

Jeremy A. Avila, Deputy County Counsel

14

Lorraine Van Kirk, Deputy County Counsel

Mary E. Hanna-Weir, Deputy County Counsel

15

70 West Hedding Street, East Wing, Ninth Floor

San José, California 95110-1770

16

Attorneys for the County of Santa Clara, California

17

By: /s/ Erica R. Franklin

18

Peter S. Holmes

19

City Attorney, City of Seattle Erica R. Franklin, Assistant City Attorney

20

701 Fifth Avenue, Suite 2050

Seattle, WA 98104

21

Attorneys for City of Seattle, Washington

Mark A. Flessner Corporation Counsel, City of Chicago Stephen J. Kane, Deputy Corporation Counsel Rebecca Hirsch, Assistant Corporation Counsel 121 North LaSalle Street, Room 600 Chicago, IL 60602 Attorneys for the City of Chicago, Illinois

22

23

24

25

26

27

28
Amicus Curiae Brief by Local Government Amici in Support of Plaintiff 2:20-cv-01105-JLR

9
Office of the County Counsel, County of Santa Clara 70 West Hedding St. East Wing, 9th Floor, San José, CA 95110
(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 15 of 19

1

Additional Counsel for Amici Curiae

2

Esteban A. Aguilar, Jr.

City Attorney, City of Albuquerque

3

One Civic Plaza NW, 4th Floor, Room 4072

Albuquerque, NM 87102

4

Attorney for the City of Albuquerque, New Mexico

5

Anne L. Morgan

6

City Attorney

P.O. Box 1546

7

Austin, TX 78701

Attorney for the City of Austin, Texas
8

9

Nick Herman

Counsel for the Town of Carrboro

10

The Brough Law Firm

1526 East Franklin Street, Suite 200

11

P.O. Box 2388

Chapel Hill, NC 27514

12

Attorney for the Town of Carrboro, North Carolina

13

Zach Klein

14

City Attorney, City of Columbus

77 North Front Street, 4th Floor

15

Columbus, OH 43215

Attorney for the City of Columbus, Ohio
16

17

Jessica M. Scheller

Chief; Advice, Business & Complex Litigation Division

18

Cook County State’s Attorney’s Office

500 Richard J. Daley Center

19

Chicago, IL 60602

Counsel for Cook County, Illinois
20

21

Barbara J. Doseck,

City Attorney, City of Dayton

22

101 West Third Street

P.O. Box 22

23

Dayton, OH 45401

Attorney for the City of Dayton, Ohio
24

25

Stephen P. Zollinger

City Attorney, City of Driggs

26

P.O. Box 280

Rexburg, ID 83440

27

Attorney for the City of Driggs, Idaho

28
Amicus Curiae Brief by Local Government Amici in Support of Plaintiff 2:20-cv-01105-JLR

10
Office of the County Counsel, County of Santa Clara 70 West Hedding St. East Wing, 9th Floor, San José, CA 95110
(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 16 of 19

1

Rebecca St. George

City Attorney, City of Duluth

2

411 West 1st Street, Room 440

Duluth, MN 55802

3

Attorney for the City of Duluth, Minnesota

4

David Hall

5

City Attorney, City of Everett

2930 Wetmore Avenue, Suite 10 A

6

Everett, WA 98201

Attorney for the City of Everett, Washington

7

8

Ronald C. Lewis

City Attorney, City of Houston

9

City of Houston Legal Department

900 Bagby, 4th Floor

10

Houston, Texas 77002

Attorney for The City of Houston, Texas

11

12

Gary W. Kuc,

County Solicitor, Howard County

13

Howard County Office of Law

3450 Court House Drive

14

Ellicott City, MD 21043

Attorney for Howard County, Maryland

15

16

Michael N. Feuer

City Attorney, City of Los Angeles

17

Office of the Los Angeles City Attorney

200 North Main Street, 8th Floor

18

Los Angeles, CA 90012

Attorney for the City of Los Angeles, California

19

20

Mary C. Wickham

County Counsel, County of Los Angeles

21

Scott Kuhn

Cesar del Peral

22

Katherine G. McKeon

Hannah Flores

23

648 Kenneth Hahn Hall of Administration

500 West Temple Street

24

Los Angeles, CA 90012

Attorneys for the County of Los Angeles, California

25

26

27

28
Amicus Curiae Brief by Local Government Amici in Support of Plaintiff 2:20-cv-01105-JLR

11
Office of the County Counsel, County of Santa Clara 70 West Hedding St. East Wing, 9th Floor, San José, CA 95110
(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 17 of 19

1

Christopher J. Forte

Assistant General Counsel, City of Middletown

2

Office of the General Counsel

245 deKoven Drive

3

Middletown, CT 06457

Attorney for the City of Middletown, Connecticut

4

James E. Johnson

Corporation Counsel, City of New York

5

100 Church Street

New York, NY 10007

6

Attorney for the City of New York, New York

7

Barbara J. Parker

8

City Attorney, City of Oakland

One Frank H. Ogawa Plaza, 6th Floor

9

Oakland, CA 94612

Attorney for the City of Oakland, California

10

11

Tracy Reeve

City Attorney, City of Portland

12

1221 SW Fourth Avenue, Room 430

Portland, OR 97204

13

Attorney for the City of Portland, Oregon

14

Adam B. Fogleman

15

Pulaski County Attorney

201 South Broadway, Suite 400

16

Little Rock, AR 72201

Attorney for County of Pulaski, Arkansas

17

18

Dennis J. Herrera

City Attorney, City and County of San Francisco

19

City Hall Room 234

One Dr. Carlton B. Goodlett Place

20

San Francisco, CA 94102

Attorney for the City and County of San Francisco, California

21

22

Lyndsey M. Olson

City Attorney, City of Saint Paul

23

400 City Hall and Court House

15 West Kellogg Boulevard

24

Saint Paul, MN 55102

Attorney for the City of Saint Paul, Minnesota

25

26

Anthony P. Condotti

Atchison, Barisone & Condotti, APC

27

P.O. Box 481

Santa Cruz, CA 95061

28

Attorney for the City o1f2Santa Cruz, California

Amicus Curiae Brief by Local Government Amici

Office of the County Counsel, County of Santa Clara

in Support of Plaintiff

70 West Hedding St. East Wing, 9th Floor, San José, CA 95110

2:20-cv-01105-JLR

(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 18 of 19

1

Jason M. Heath

County Counsel, County of Santa Cruz

2

701 Ocean Street, Room 505

Santa Cruz, CA 95060

3

Attorney for the County of Santa Cruz, California

4

Howard Phillip Schneiderman

5

Senior Deputy Prosecuting Attorney, King County

King County Prosecuting Attorney’s Office

6

516 Third Avenue, W400

Seattle, WA 98104

7

Counsel for King County, Washington and Public Health – Seattle & King County

8

Francis X. Wright, Jr.

9

City Solicitor, City of Somerville

93 Highland Avenue

10

Somerville, MA 02143

Attorney for the City of Somerville, Massachusetts

11

12

Terry J. Williams

Solicitor, State College, PA

13

243 South Allen Street

State College, PA 16801

14

Attorney for the Borough of State College, Pennsylvania

15

William Fosbre

16

City Attorney, City of Tacoma

747 Market Street

17

Tacoma, WA 98402

Attorney for the City of Tacoma, Washington

18

19

David A. Escamilla

Travis County Attorney

20

Annalynn Cox

P. O. Box 1748

21

Austin, TX 78767

Attorneys for Travis County, Texas

22

23

Michael Jenkins

City Attorney, City of West Hollywood

24

Best Best & Krieger LLP

1230 Rosecrans Avenue, Suite 110

25

Manhattan Beach, CA 90266

Attorney for the City of West Hollywood, California

26

27

28
Amicus Curiae Brief by Local Government Amici in Support of Plaintiff 2:20-cv-01105-JLR

13
Office of the County Counsel, County of Santa Clara 70 West Hedding St. East Wing, 9th Floor, San José, CA 95110
(408) 299-5900

Case 2:20-cv-01105-JLR Document 47 Filed 08/07/20 Page 19 of 19

1

CERTIFICATE OF SERVICE

2

3

I hereby certify that on August 7, 2020, the foregoing document was filed with the Clerk of

4 the Court, using the CM/ECF system, causing it to be served on all counsel who have entered an

5 appearance. I further certify that on August 7, 2020, service of the foregoing document will be

6 accomplished via electronic mail to William.Lane2@usdoj.gov and via FedEx Overnight Delivery to

7 the following:

8

9

William K. Lane III

Counsel to the Assistant Attorney General

10

Civil Division

11

U.S. Department of Justice 950 Pennsylvania Avenue, N.W.

12

Washington, D.C. 20530

13

14

15

Dated: August 7, 2020

16

17

_/s/ Kimberly Ide_______________________ Kimberly Ide

18
2254610
19

20

21

22

23

24

25

26

27

28
Amicus Curiae Brief by Local Government Amici in Support of Plaintiff 2:20-cv-01105-JLR

14
Office of the County Counsel, County of Santa Clara 70 West Hedding St. East Wing, 9th Floor, San José, CA 95110
(408) 299-5900

 
 Case 2:20-cv-01105-JLR Document 63 Filed 08/14/20 Page 1 of 31

1

2

3

4

5

6

7
UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

10 STATE OF WASHINGTON,

11

Plaintiff,

NO. 2:20-cv-01105

12

v.

13 UNITED STATES DEPARTMENT OF HEALTH 14 AND HUMAN SERVICES; ALEX M. AZAR, in
his official capacity as the Secretary of the 15 United States Department of Health and
Human Services;
16
Defendants.
17

BRIEF OF AMICI NATIONAL HEALTH LAW PROGRAM ET AL., IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

18

19

20

21

22

23

24

25

26
AMICUS CURIAE BRIEF BY NATIONAL HEALTH LAW PROGRAM ET AL. IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION– i

NATIONAL HEALTH
LAW PROGRAM 3701 WILSHIRE BLVD., SUITE 750
LOS ANGELES, CA 90010 TEL. (310) 204-6010

Case 2:20-cv-01105-JLR Document 63 Filed 08/14/20 Page 2 of 31

TABLE OF CONTENTS
1

2 INTRODUCTION AND STATEMENT OF INTEREST ........................................................... 1

3

I. Allowing Exemptions Will Cause Significant Harm to

Women, LGBTQ+ People, People with Disabilities, and

4

Older Adults.............................................................................................................4

5

II. Removal of the Notice, Tagline, and Effective

Communication Requirements Will Harm Individuals

6

with Limited English Proficiency (“LEP”), Older Adults,

and People with Disabilities. ............................................................................... 12
7

A. Harm of Repealing the Notice and Tagline Requirements .............................. 13

8

B. The 2020 Revised Rule Discriminates by Limiting Access

to Effective Communication for People with Disabilities. .............................. 17
9
III. HHS Relies on an Inappropriate Calculation of the Cost of

10

Providing Notice and Taglines and Underestimates the

Benefits. ................................................................................................................... 19
11
IV. HHS’s Narrowing of Section 1557 Covered Entities

12

Contravenes Statutory Intent. .............................................................................. 22

CONCLUSION .......................................................................................................................... 24
13

14

15

16

17

18

19

20

21

22

23

24

25

26
AMICUS CURIAE BRIEF BY NATIONAL HEALTH LAW PROGRAM ET AL. IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION– ii

NATIONAL HEALTH
LAW PROGRAM 3701 WILSHIRE BLVD., SUITE 750
LOS ANGELES, CA 90010 TEL. (310) 204-6010

Case 2:20-cv-01105-JLR Document 63 Filed 08/14/20 Page 3 of 31

TABLE OF AUTHORITES
1
CASES
2
3 Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227 (D.C. Cir. 2008) ..................................... 24
4 Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973) ................................... 25

5

STATUTES

20 U.S.C. § 1681 et seq. ............................................................................................................... 4

6

25 U.S.C. § 1623 ........................................................................................................................ 23
7

8 29 U.S.C. § 794 .......................................................................................................................... 24

9 42 U.S.C. § 12201(c). ................................................................................................................. 10

10 42 U.S.C. § 1320a-7b ................................................................................................................. 23
11
42 U.S.C. § 18022 ...................................................................................................................... 11
12
42 U.S.C. § 18051 ...................................................................................................................... 23
13
42 U.S.C. § 18114 ............................................................................................................ 1, 12, 24
14
42 U.S.C. § 18116(a) .................................................................................................................. 23
15
16 42 U.S.C. § 18116(b).................................................................................................................... 4
17 42 U.S.C. § 299b-31 ................................................................................................................... 23

18 42 U.S.C. § 300gg-6 ................................................................................................................... 11

19 42 U.S.C. § 12101 et seq. ............................................................................................................. 4

20
5 U.S.C. § 702 .............................................................................................................................. 2

21
Health Care and Education Reconciliation Act, Pub. L. No. 111-152 (2010) ............................. 1
22

Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148

23

(2010) ..................................................................................................................................... 1

24
REGULATIONS

25
28 C.F.R. § 36.301......................................................................................................................22

26
AMICUS CURIAE BRIEF BY NATIONAL HEALTH LAW PROGRAM ET AL. IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION– iii

NATIONAL HEALTH
LAW PROGRAM 3701 WILSHIRE BLVD., SUITE 750
LOS ANGELES, CA 90010 TEL. (310) 204-6010

Case 2:20-cv-01105-JLR Document 63 Filed 08/14/20 Page 4 of 31

1 34 C.F.R. § 104.4........................................................................................................................ 22

2
45 C.F.R. § 92.102................................................................................................................21, 22
3
45 C.F.R. § 92.202......................................................................................................................21
4
45 C.F.R. § 92.3(b) ....................................................................................................................... 5
5
45 C.F.R. § 92.4.......................................................................................................................... 21
6

7 45 C.F.R. § 92.8(d)(1) ................................................................................................................ 16

8

ADMINISTRATIVE MATERIALS

9 Candice Jackson, OCR Acting Assistant Sec’y Civil Rights, OCR

Instructions to Field Re: Scope of Complaints (Jun. 8, 2017),

10

https://perma.cc/45L6-8Q5T .................................................................................................. 4

11
CMS, MCMG (2018), https://perma.cc/2T3G-DTAR. .............................................................. 20

12

Nondiscrimination in Health and Health Education Programs or Activities,

13

84 Fed. Reg. 27,846, 27,892 (proposed June 14, 2019),

https://perma.cc/FY4Z-ZUBA.................................................................................. 10, 24, 26

14

Nondiscrimination in Health and Health Education Programs or Activities,
15
Delegation of Authority, 85 Fed. Reg. 37,160 (June 19, 2020),

16

https://perma.cc/P2TJ-AN54 (“2020 Revised Rule”) ...................................................passim

17 Nondiscrimination in Health Programs and Activities, 80 Fed. Reg. 54,172, 54,173 (proposed Sept. 8, 2015), https://perma.cc/LTK9-5YET. ................................ 7, 8, 16
18

Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376
19
(May 18, 2016) (formerly codified at 45 C.F.R. pt. 92),

20

https://perma.cc/47EC-4NZL (“2016 Final Rule”) .......................................................passim

21 Request for Information Regarding Nondiscrimination in Certain Health

Programs or Activities.” 78 Fed. Reg. 46,558 (Aug. 1, 2013),

22

https://perma.cc/NJ8P-2VKJ ("RFI") ..................................................................................... 6

23

OTHER AUTHORITIES

24
Amelia Thomson-DeVeaux and Anna Maria Barry-Jester, Insurers Can

25

Send Patients To Religious Hospitals That Restrict Reproductive Care,

FiveThirtyEight (Aug. 1, 2018), https://perma.cc/3V2Z-CYGV)..........................................9

26
AMICUS CURIAE BRIEF BY NATIONAL HEALTH LAW PROGRAM ET AL. IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION– iv

NATIONAL HEALTH
LAW PROGRAM 3701 WILSHIRE BLVD., SUITE 750
LOS ANGELES, CA 90010 TEL. (310) 204-6010

Case 2:20-cv-01105-JLR Document 63 Filed 08/14/20 Page 5 of 31

1 Defendants’ Memorandum in Response to Plaintiffs’ Mtn. for Summary Judgment, Franciscan Alliance v. Price, No. 7:16-cv-00108 (N.D.
2
Tex., Apr. 5, 2019), https://perma.cc/48ZU-GAHU .............................................................. 3

3

Federal Defendants’ Memorandum in Response to Plaintiffs’ Application

4

for Preliminary Injunction, Texas v. U.S., No. 4:18-cv-00167-O (N.D.

Tex., Jun. 7, 2018), https://perma.cc/FU5G-HASZ ............................................................... 3

5

Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic
6
Disparities in Health Care 17, (Smedley, Stith, and Nelson, eds., 2002)...................... 16, 22

7

Kelvin Quan & Jessica Lynch, The High Costs of Language Barriers in

8

Medical Malpractice, Univ. of Cal. Berkeley and Nat’l Health Law

Program (2011), https://perma.cc/59PM-4NHU).................................................................16

9

Louis Uttley & Christine Khaikin, Growth of Catholic Hospitals and

10

Health Systems: 2016 Update of the Miscarriage of Medicine Report,

11

MergerWatch, (2016), https://perma.cc/A9TW-Y6P5).......................................................... 9

12 Samuel R. Bagenstos, The Future of Disability Law, 114 Yale L.J. 1, 41 nn.168-70 (2004) .................................................................................................................. 10
13

Sara Rosenbaum et al., Crossing the Rubicon: The Impact of the Affordable

14

Care Act on the Content of Insurance Coverage for Persons with

15

Disabilities, 25 Notre Dame J. L. Ethics & Pub. Pol’y 235 (2014) ..................................... 11

16 Shabab Ahmed Mirza & Caitlin Rooney, Ctr. Am. Progress,

Discrimination Prevents LGBTQ People From Accessing Health Care

17

(2018), https://perma.cc/ZG7E-7WK8 ................................................................................. 10

18 The Joint Comm’n, Overcoming the Challenges of Providing Care to LEP Patients (May 2015), https://perma.cc/BE6A-5QYP ........................................................... 15
19

20 WASCLA Tools for Health, What Does Language Access Have to Do With Health? (2014)......................................................................................................................15
21

22

23

24

25

26
AMICUS CURIAE BRIEF BY NATIONAL HEALTH LAW PROGRAM ET AL. IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION– v

NATIONAL HEALTH
LAW PROGRAM 3701 WILSHIRE BLVD., SUITE 750
LOS ANGELES, CA 90010 TEL. (310) 204-6010

Case 2:20-cv-01105-JLR Document 63 Filed 08/14/20 Page 6 of 31

1

INTRODUCTION AND STATEMENT OF INTEREST

2
A decade ago, the Affordable Care Act mandated an end to long accepted,
3
legally allowed discriminatory practices in health care. Patient Protection and
4

5 Affordable Care Act (“ACA”), Pub. L. No. 111-148 (2010) , as amended in the Health

6 Care and Education Reconciliation Act, Pub. L. No. 111-152 (2010). The ACA included
7
provisions to end insurance carriers denying coverage for people with disabilities or
8
chronic health conditions, annual and lifetime benefit limits, and drastically more
9
10 expensive premiums for women and older adults. In addition, Section 1557 contains a
11 robust section prohibiting discrimination in health care based on race, sex, age, and

12 disability. 42 U.S.C. § 18116. Additionally, Section 1554 prohibits HHS from issuing
13
regulations that, among other things, create unreasonable barriers to obtaining
14
appropriate medical care, impede timely access to care, interfere with communications
15
16 between the patient and provider, and limit health care under the patient’s needs. Id. §

17 18114. Where previously discrimination in health care was often the normal course of

18
business—causing loss of insurance, coverage denials, delayed access to care, and
19
associated negative health outcomes—the ACA said “no more.”
20

21

Proposed Amici the National Health Law Program, Justice in Aging, Public

22 Citizen Foundation, California Pan-Ethnic Health Network, Center for Public
23 Representation, Communication First, Disability Rights Education and Defense Fund,
24
Disability Rights Washington, Legal Voice, National Council on Interpreting in Health
25

26
AMICUS CURIAE BRIEF BY NATIONAL HEALTH LAW PROGRAM ET AL. IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION– 1

NATIONAL HEALTH
LAW PROGRAM 3701 WILSHIRE BLVD., SUITE 750
LOS ANGELES, CA 90010 TEL. (310) 204-6010

Case 2:20-cv-01105-JLR Document 63 Filed 08/14/20 Page 7 of 31

Care, and SAGE are health and disability advocacy organizations dedicated to
1
2 eliminating disparities in health care.1 Proposed amici have a strong interest in

3 ensuring that the regulations adhere to the statute and that people receive the full
4
protection of Section 1557. See 5 U.S.C. § 702. While Washington’s Preliminary
5
Injunction motion is based on the changes to the definition of discrimination on the
6
basis of sex, its complaint recognizes that the changes are far more expansive and will
7
8 harm a range of individuals, including those represented by amici as described below.

9

The initial rulemaking process for Section 1557 spanned three years and resulted

10
in 25,000 comments reflecting the importance of eliminating longstanding
11
discrimination in health care. This process culminated in the U.S. Department of Health
12

13 and Human Services (“HHS”) issuing a final rule in 2016. Nondiscrimination in Health

14 Programs and Activities, 81 Fed. Reg. 31,376 (May 18, 2016) (formerly codified at 45
15
C.F.R. pt. 92), https://perma.cc/47EC-4NZL (“2016 Final Rule”). Then, just four years
16
later, the Trump Administration issued a revised rule. Nondiscrimination in Health
17
18 and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg.

19 37,160 (June 19, 2020), https://perma.cc/P2TJ-AN54 (“2020 Revised Rule”). As
20 Washington has shown, the 2020 Revised Rule threw away important protections
21
against sex discrimination that will harm Lesbian, Gay, Bisexual, Transgender, Queer
22

23

24

25 1 None of the proposed Amici is a subsidiary of any other corporation and no publicly held corporation

owns 10% or more of any proposed Amici’s stock. 26
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Plus (“LGBTQ+”) individuals and women. See Memo. in Support of Mtn. for
1
2 Preliminary Inj., ECF No. 4, at 8. As amici discuss below, it also added a host of

3 exemptions contrary to the ACA. It eliminated important notice and effective
4
communication protections for people with limited English proficiency (LEP) and
5
disabilities. And it erased whole categories of entities from coverage by Section 1557.
6
The 2020 Revised Rule was one of multiple attempts to undermine the ACA and
7
8 its non-discrimination protections. Previously, the Administration issued a memo to

9 discourage staff from systemic investigations of discrimination. See Candice Jackson,
10
OCR Acting Assistant Sec’y Civil Rights, OCR Instructions to Field Re: Scope of
11
Complaints (Jun. 8, 2017), https://perma.cc/45L6-8Q5T. It also filed briefs in litigation
12
13 that challenged the non-discrimination protections.2

14

Caught in the midst of all of these attempted rollbacks are the people whom

15
Congress intended to protect under the ACA. Prior to the ACA, Congress heard
16
testimony about the impact of discrimination on women, people with disabilities,
17
18 LGBTQ+ individuals, people with limited English proficiency (“LEP”), older adults,

19 and other protected classes. In passing the ACA, Senator Tom Harkin said:

20

[U]ntil now, it has been perfectly legal to discriminate against our fellow

21

Americans because of illness-because of illness-and to exclude tens of

22

23

2Defendants’ Memorandum in Response to Plaintiffs’ Mtn. for Summary Judgment, Franciscan Alliance v. Price, 24 No. 7:16-cv-00108 (N.D. Tex., Apr. 5, 2019), https://perma.cc/48ZU-GAHU (informing court that HHS

no longer interpreted “sex” to include gender identity); c.f. Federal Defendants’ Memorandum in Response to 25 Plaintiffs’ Application for Preliminary Injunction, Texas v. U.S., No. 4:18-cv-00167-O (N.D. Tex., Jun. 7, 2018),

https://perma.cc/FU5G-HASZ (arguing ACA’s pre-existing condition protection is unconstitutional).

26

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millions of our citizens from decent health care simply because they could

1

not afford insurance or afford health care-blatant discrimination.

2
156 Cong. Rec. S1983 (daily ed. Mar. 24, 2010). To ensure that such discrimination
3
remains illegal, proposed amici support Washington’s motion.
4

5

I.

Allowing Exemptions Will Cause Significant Harm to Women,

LGBTQ+ People, People with Disabilities, and Older Adults.

6

The 2020 Revised Rule illegally incorporates harmful exemptions from other laws,
7

8 including Title IX of the Education Amendments Act of 1972 (“Title IX”) and the

9 Americans with Disabilities Act (“ADA”). 20 U.S.C. § 1681 et seq.; 42 U.S.C. § 12101 et
10
seq. These exemptions are contrary to the language of Section 1557, which creates a
11
baseline protection of rights, remedies, and procedures that other non-discrimination
12
provisions may add to, but not take away from. The language of Section 1557(b) protects
13
14 individual rights. See 42 U.S.C. § 18116(b) (“Nothing in this title … shall be construed to

15 invalidate or limit the rights, remedies, procedures, or legal standards” available under
16
the cited non-discrimination statutes or supersede more protective State law). The 2016
17
Rule appropriately reflected this language. See 81 Fed. Reg. at 31,466 (codified at 45
18
19 C.F.R. § 92.3(b)). By contrast, the 2020 Revised Rule uses language that cabins Section

20 1557 and incorporates exemptions from nine statutes never referenced in Section 1557.
21
See Exhibit 1 (providing a side-by-side comparison of the language).
22
Including these exemptions is not only contrary to the statute, but also ignores the
23
24 ample evidence in the record that the exemptions would cause significant harm,

25 especially to women, LGBTQ+ people, people with disabilities, and older adults. The

26
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question of including exemptions to Section 1557 was thoroughly commented on and
1
2 reviewed in the 2016 rulemaking process. Nothing significant has changed in the interim,

3 and HHS has not provided a reasoned justification for its changes.
4
HHS first solicited comment on whether it should incorporate any religious
5
exemptions to compliance with the sex discrimination component of Section 1557 in
6
2013, in a “Request for Information Regarding Nondiscrimination in Certain Health
7
8 Programs or Activities.” 78 Fed. Reg. 46,558 (Aug. 1, 2013), https://perma.cc/NJ8P-

9 2VKJ (“RFI”) (referencing Title IX).3 RFI Commenters gave examples of how allowing
10
exemptions from Section 1557’s protections would result in real-world discrimination
11
and harm. See, e.g., Lambda Legal, Comment ID HHS-OCR-2013-0007-0161, at 2; Nat’l
12
13 Latina Inst. Repro. Health, Comment ID HHS-OCR-2013-0007-0101, at 6; Whitman-

14 Walker Health, Comment ID HHS-OCR-2013-0007-0063, at 11. HHS later noted:

15
Nearly all commenters who provided a response to this inquiry indicated

16

that Section 1557 includes only one exception—that the statute applies

except as otherwise provided in Title I of the ACA. To this end,

17

commenters noted that nothing in the language or legislative history of

18

Section 1557 allows for any other limitations or exceptions regarding its

application, highlighting that exceptions to general rules like Section

19

1557’s antidiscrimination provision must be read strictly and narrowly.

20

21

22

23

24

3 All comments received by HHS in response to the 2013 RFI can be found at https://perma.cc/T7J9-

YALK. In this brief, individual comments have been identified by their comment ID number the first time 25 they are cited and then by the organization’s name thereafter.

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Nondiscrimination in Health Programs and Activities, 80 Fed. Reg. 54,172, 54,173
1
2 (proposed Sept. 8, 2015), https://perma.cc/LTK9-5YET.4

3

HHS solicited comment on the question again in 2015 in its first Notice of

4
Proposed Rulemaking on Section 1557, asking “whether the regulation should include
5
any specific exemptions . . . with respect to requirements of the proposed rule related to
6
7 sex discrimination” and whether “existing protections . . . provide sufficient safeguards

8 for religious concerns in the context of the proposed rule.” Id. at 54,173. HHS stated that
9 its goal was to “ensure that the rule has the proper scope and appropriately protects
10
sincerely held religious beliefs to the extent that those beliefs conflict with provisions of
11
the regulation,” while noting that “protections already exist with respect to religious
12
13 beliefs, . . . [and] this proposed rule would not displace the protections afforded by

14 provider conscience laws, the Religious Freedom Restoration Act, provisions in the ACA
15
related to abortion services, or regulations issued under the ACA related to preventive
16
health services.” Id. (citations omitted). Those existing statutes that allow individuals
17
18 and entities to refuse to provide certain services based on moral and religious objections

19 are more than sufficient to accommodate any religious objections.
20
In response to HHS’s inquiry, “[m]ost of the organizations that commented on
21
this issue, including professional medical associations and civil rights organizations, and
22

23

24

4 All comments received by HHS in response to the 2015 NPRM can be found at 25 https://perma.cc/X267-26UZ. In this brief, individual comments have been identified by their comment

ID number the first time they are cited and then by the organization’s name thereafter.

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the overwhelming majority of individual commenters—many of whom identified
1
2 themselves as religious—opposed any religious exemption on the basis that it would

3 potentially allow for discrimination on the bases prohibited by Section 1557 or for the
4
denial of health services. . . .” 81 Fed. Reg. at 31,379. In addition, as HHS noted, “mergers
5
of religiously-affiliated hospitals with other hospitals have deepened concerns that
6
would be raised by providing a religious exemption, as the mergers may leave
7
8 individuals in many communities with fewer health care options. . . .” Id. Many

9 commenters also discussed the harm that a religious exemption would have on LGBTQ+
10
individuals. See Nat’l Women’s Law Ctr., Comment ID HHS-OCR-2015-0006-0837, at 8-
11
9 (citing ACLU & Merger Watch, Miscarriage of Medicine: The Growth of Catholic Hospitals
12
13 and the Threat to Reproductive Health Care (2013), https://perma.cc/SV62-NDCQ); Nat’l

14 Ctr. Lesbian Rights, Comment ID HHS-OCR-2015-0006-1829, at 10-13 (citing numerous
15
studies on the negative impact of the growth in religiously affiliated hospitals on access
16
to care for women seeking reproductive health services and rape survivors). This impact
17
18 was reiterated by hundreds of individual commenters, including over one hundred

19 individuals from Washington State. See, e.g., Leslie Gray of Olympia, WA, Comment ID

20 HHS-OCR-2015-0006-2159, at 524-25 (describing experience of a transgender woman
21
whose urological medical condition was not treated due to her transgender identity,
22
which caused blood clots to form in her heart, resulting in permanent cardiac damage).
23

24

Thus, in promulgating the 2016 Final Rule, HHS stated that while “some

25 commenters urged us also to incorporate Title IX’s blanket religious exemption into this

26
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final rule, we believe that applying the protections in [existing] laws . . . offers the best
1
2 and most appropriate approach for resolving any conflicts between religious beliefs and

3 Section 1557 requirements.” 81 Fed. Reg. at 31,380. With respect to Title IX’s exemptions,
4
HHS emphasized that these exemptions are limited to educational institutions and noted
5
key differences between the educational and health care contexts, concluding, “[t]hus, it
6
is appropriate to adopt a more nuanced approach in the health care context, rather than
7
8 the blanket religious exemption applied for educational institutions under Title IX.” Id.

9 HHS recognized that in health care, people often have little choice as to where an

10
ambulance takes them or may have few choices of providers in rural areas heavily
11
populated with religious providers. See id.
12

13

Nevertheless, the 2020 Revised Rule adds Title IX’s blanket exemption for

14 religiously affiliated entities along with a range of other religious exemptions. See
15
Nondiscrimination in Health and Health Education Programs or Activities, 84 Fed. Reg.
16
27,846, 27,892 (proposed June 14, 2019), https://perma.cc/FY4Z-ZUBA (to be codified
17
18 at § 92.6).5 This 180 degree turn is all the more significant given the growing percentage

19 of the health care market that is occupied by religiously affiliated hospitals and health
20
systems. See ACLU of Illinois, Comment ID HHS-OCR-2019-0007-138982, at 7-8 (citing
21
Louis Uttley & Christine Khaikin, Growth of Catholic Hospitals and Health Systems: 2016
22

23

24

5 All comments received by HHS in response to the 2019 NPRM can be found at 25 https://perma.cc/4VCN-Y2DK. In this brief, individual comments have been identified by their comment

ID number the first time they are cited and then by the organization’s name thereafter.

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Update of the Miscarriage of Medicine Report, MergerWatch, (2016),
1
2 https://perma.cc/A9TW-Y6P5); Amelia Thomson-DeVeaux and Anna Maria Barry-

3 Jester, Insurers Can Send Patients to Religious Hospitals that Restrict Reproductive Care,
4
FiveThirtyEight (Aug. 1, 2018), https://perma.cc/3V2Z-CYGV); see also ACLU Founds.
5
of Cal., Comment ID HHS-OCR-2019-0007-149859, at 8-10 (the growing size and scope
6
of Catholic hospitals will increase the likelihood of harm to women and LBGTQ+
7
8 individuals). This issue is particularly acute in Washington as it has the second highest

9 proportion of short-term acute-care beds in hospitals under Catholic restrictions at
10
40.9%. Legal Voice, Comment ID HHS-OCR-2019-0007-151507, at 8.
11
The inclusion of sweeping religious exemptions to Section 1557’s protections will
12
13 result in serious harm. As commenters noted these exemptions will disproportionately

14 harm women, especially Black, Indigenous, and women of color, who are often denied
15
reproductive health care due to the proliferation of entities that discriminate by refusing
16
to provide such care based on religious beliefs. See Ass’n Am. Med. Colls., Comment ID
17
18 HHS-OCR-2019-0007-115960, at 3-4 (religious exemptions will exacerbate race-based

19 discrimination in family planning care); Nat’l Hisp. Leadership Agenda, Comment ID
20 HHS-OCR-2019-0007-149018, at 11 (citing study finding that 4 in 10 Latina/o voters
21
under age 45 (41 percent) have gone without the birth control method they wanted in
22
the past two years because of access issues); see also Legal Voice at 8; In Our Own Voice:
23
24 Nat’l Black Women’s Reproductive Justice, Comment ID HHS-OCR-2019-0007-140963,

25 at 7; Nat’l Women’s Law Ctr., Comment ID HHS-OCR-2019-0007-149018, at 5-11.

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The 2020 Revised Rule’s religious exemptions also disproportionately harm
1
2 LGBTQ+ people. According to a study published in 2018, 8% of LGBQ people were

3 refused health care because of their sexual orientation, and 29% of transgender people
4
were denied care because of their gender identity. See NHeLP, Comment ID HHS-OCR-
5
2019-0007-127004, at 51 (citing Shabab Ahmed Mirza & Caitlin Rooney, Ctr. Am.
6
Progress, Discrimination Prevents LGBTQ People From Accessing Health Care (2018),
7
8 https://perma.cc/ZG7E-7WK8); Justice in Aging, Comment ID HHS-OCR-2019-0007-

9 149354, at 7 (“Many [LGBTQ+] older adults report having to go back ‘in the closet’
10
because of stigma and fear when transitioning to a long-term care facility. . . .”).
11
HHS also acted contrary to the ACA and Section 1557 by incorporating the
12
13 exemptions set forth in the ADA. The ADA includes religious exemptions, private club

14 exclusions, and exclusions related to drug use that are not found in Section 1557. NHeLP
15
at 24. The ADA also includes a safe harbor provision that exempts insurers, hospitals,
16
managed care entities, benefit administrators, and other organizations “underwriting
17
18 risks, classifying risks, or administering such risks” from the disability discrimination

19 protections in Titles I through III of the ADA. 42 U.S.C. § 12201(c). Under the safe harbor
20 provision of the ADA, insurers and others have been allowed to discriminate against
21
people with disabilities. See, e.g., Samuel R. Bagenstos, The Future of Disability Law, 114
22
Yale L.J. 1, 41 nn.168-70 (2004) (collecting cases that did not analyze whether content of
23
24 benefits was discriminatory when they upheld exclusions on the basis of treatment or

25 diagnosis). Although disability discrimination claims under Section 504 of the

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Rehabilitation Act are allowed, courts have narrowly construed certain types of claims.
1
2 Id. The ACA contains many examples of corrections to exemptions and definitions that

3 courts had upheld in disability discrimination challenges under the ADA and Section
4
504, including prohibitions against discriminatory benefit design. See, e.g., 42 U.S.C. §
5
300gg-6; 42 U.S.C. § 18022; Consortium for Citizens with Disabilities (“CCD”), Comment
6
ID HHS-OCR-2019-0007-146162, at 2-7; see generally Sara Rosenbaum et al., Crossing the
7
8 Rubicon: The Impact of the Affordable Care Act on the Content of Insurance Coverage for Persons

9 with Disabilities, 25 Notre Dame J. L. Ethics & Pub. Pol’y 235 (2014).
10
The 2020 Revised Rule purports to recreate some of the very gaps that Section
11
1557 was intended to fill. Under the 2020 Revised Rule individuals with disabilities who
12
13 are facing discriminatory benefit designs outside of the qualified health plan context may

14 have limited, if any, options for challenging such harmful discrimination. See Coalition

15
to Preserve Rehabilitation, Comment ID HHS-OCR-0007-146075, at 2 (noting that Section
16
1557 “acted as a capstone to the ADA expanding disability protections in the provision
17
18 of health insurance.”).

19

The ACA reformed disability discrimination in health care. Many of the

20 discriminatory practices that had been allowed are now prohibited. Section 1557 was
21
included as the mechanism to enforce this seismic shift. The 2020 Revised Rule turns this
22
mechanism on its head by incorporating all of the exemptions, exclusions, definitions,
23
24 and defenses of statutes not even mentioned in Section 1557. HHS lacks the authority to

25 promulgate regulations interpreting Section 1557 that “create[] any unreasonable

26
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barriers to the ability of individuals to obtain appropriate medical care.” 42 U.S.C. §
1
2 18114. Yet HHS’s action will do just that. For these reasons, the 2020 Revised Rule’s

3 addition of exemptions and exclusions untethered to the text of Section 1557 is contrary

4
to law and is arbitrary and capricious.

5

II.

Removal of the Notice, Tagline, and Effective Communication

6

Requirements Will Harm Individuals with Limited English

Proficiency (“LEP”), Older Adults, and People with Disabilities.
7

8

Before the ACA, individuals who needed communication assistance experienced

9 barriers to regularly receiving quality health care, leaving important information
10
uncommunicated or ineffectively communicated between providers and patients. The
11
result: preventive visits did not happen, treatment regimens were not followed, and
12
13 appointments were missed. 81 Fed. Reg. at 31,459. Congress passed the ACA to “help

14 uninsured and underserved populations gain access to care[.]” 81 Fed. Reg. at 31,443.

15
The 2016 Final Rule recognized the ACA and Section 1557’s purposes to “expand access
16
to care and eliminate barriers to access,” including by preventing disability
17
discrimination. Id. at 31,377.
18

19

In the 2020 Revised Rule, HHS has removed provisions that are essential to ensure

20 that individuals with limited English proficiency (“LEP”), older adults, and people with
21
disabilities can regularly access quality health care. In particular, the Rule eliminates
22
notice requirements that are critical for people to understand their rights. See 85 Fed.
23
24 Reg. at 37,204. The 2020 Revised Rule also removes requirements for taglines—short

25 statements commonly added to documents to inform individuals in their language of

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their right to language assistance and how to seek such assistance—a critical language
1
2 access provision designed to ensure that LEP individuals can access needed care. Id. at

3 37,175. In addition, the Rule harms people with disabilities by limiting access to
4
necessary effective communication. Id. at 37,213-37,215; see also CCD at 20-21.
5
A. Harm of Repealing the Notice and Tagline Requirements
6
The 2016 Final Rule contained a number of provisions to ensure that patients
7
8 understand their rights and are able to communicate effectively with health care staff. In

9 particular, the 2016 Final Rule required covered entities to provide notice of
10
nondiscrimination policies, including notice of the availability and how to access
11
auxiliary aids and services necessary for certain patients with disabilities and language
12
13 assistance services for LEP patients. 81 Fed. Reg. at 31,469. The 2016 Final Rule required

14 covered entities to post this notice in physical locations, in significant communications,

15
and on its website. Id. The 2020 Revised Rule has entirely eliminated the notice

16
requirements. See 85 Fed. Reg. at 37,204.
17

18

In crafting the 2016 Final Rule, HHS noted that “the use of incompetent or ad hoc

19 interpreters, such as family members, friends, and children, is not uncommon and can

20 have negative implications.” 80 Fed. Reg. at 54,184. Accordingly, the 2016 Final Rule
21
required covered entities to include taglines on all significant documents in the top 15
22
languages spoken by individuals with LEP in their state. 45 C.F.R. § 92.8(d)(1); see 81 Fed.
23
24 Reg. at 31,469. Despite commenters raising concerns about the benefits of the 2016 Final

25

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Rule and the harms of eliminating these provisions, the 2020 Revised Rule entirely
1
2 eliminated the tagline requirements. See 85 Fed. Reg. at 37,204.

3

Eliminating these critical language access provisions will result in some of these

4
individuals failing to understand or assert their rights. See NHeLP at 29 (“All too often,
5
individuals with limited English proficiency do not understand their rights, and will not
6
know their new rights under Section 1557[.]”); see also Asian Health Services, Comment
7

8 ID HHS-OCR-2019-0007-146378; California Pan-Ethnic Health Network, Comment ID

9 HHS-OCR-2019-0007-152828. It will also result in some people failing to receive
10
adequate care, delaying care, or not seeking care at all, because they are unaware of their
11
right to receive accommodations and language services, undermining the purpose and
12
13 intent of Section 1557. See Leadership Conference, Comment ID HHS-OCR-2019-0007-

14 138231, at 7 (“Protections for language access are also required in order to combat
15
discrimination based upon national origin.”); NHeLP at 29 (individuals often “believe
16
they have to bring their own interpreter or use a child, other patient, or unqualified
17
18 individual to interpret.”); Disability Law Ctr., Comment ID HHS-OCR-2019-0007-

19 127904, at 2 (“Without the notice, members of the public will have limited means of
20 knowing that auxiliary aids and services are available, how to request them, what to do
21
if they face discrimination, and their right to file a complaint.”); Justice in Aging at 2
22
(describing particular needs of LEP older adults, including the four million plus LEP
23
24 Medicare beneficiaries); Medicare Rights Ctr., Comment ID HHS-OCR-2019-0007-

25 145479, at 6-7 (describing importance of language access protections for older adults,

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including LEP older adults, people with disabilities, and older adults who are deaf, hard
1
2 of hearing, blind, or have low vision, to access health care, understand medical

3 instructions, and engage with providers).
4
As a result of the repeal of the notice and tagline requirements, it will be more
5
difficult for LEP patients to navigate complex documents with specialized terminology.
6
See Commonwealth of Mass., Comment ID HHS-OCR-2019-0007-136510, at 4. In
7
8 addition, there will be an increase in LEP patients and patients with disabilities who are

9 unable to communicate with health care workers, resulting in incorrect diagnoses or
10
inappropriate care. See Leadership Conference at 7-8 (citing The Joint Comm’n,
11
Overcoming the Challenges of Providing Care to LEP Patients (May 2015),
12
13 https://perma.cc/BE6A-5QYP); Wash. State Coalition for Language Access, Comment

14 ID HHS-OCR-2019-0007-127779, at 2 (“[I]nadequate language services[] have been well-
15
documented as contributing to U.S. health and healthcare disparities, including: reduced
16
access to regular care; lesser quality of care; higher rates of uninsurance; increased risk
17
18 of medical errors; difficulty in following post-care instructions; more frequent

19 hospitalizations and higher rates of readmissions; unnecessary tests and procedures; and
20 higher rates of mortality.”) (citing WASCLA Tools for Health, What Does Language Access
21
Have to Do With Health? (2014)); Justice in Aging at 4 (consistent access to professional
22
interpreters in hospital setting was associated with decreased readmission rates for LEP
23
24 individuals 50+ years old receiving palliative care services); Disability Law Center at 1

25 (“Persons with sensory impairments also experience challenges understanding or

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complying with care instructions because interpreters are more often than not
1
2 unavailable or materials are not offered in alternative formats.”).

3

The cost of these language and communication barriers can be deadly. A 2010

4
report found that patients lost their lives and suffered irreparable harm from medical
5
errors, worse clinical outcomes, and lower quality of care due to language barriers.
6
NHeLP at 28 (citing Kelvin Quan & Jessica Lynch, The High Costs of Language Barriers in
7

8 Medical Malpractice, Univ. of Cal. Berkeley and Nat’l Health Law Program (2011),

9 https://perma.cc/59PM-4NHU). Others may be improperly billed if their LEP status
10
prevents them from successfully navigating the healthcare system. See Justice in Aging
11
at 3 (“Especially for older adults with limited income and high health care needs, the
12
13 consequences of an erroneous bill or forgoing care can be catastrophic.”).

14

As the 2016 Final Rule recognized, studies have shown that “when reliable

15
assistance services are utilized, patients experience treatment-related benefits, such as
16
enhanced understanding of physician instruction, shared decision-making, provision of
17
18 informed consent, adherence with medication regimes, preventive testing, appointment

19 attendance, and follow-up compliance.” 81 Fed. Reg. at 31,459 (citing Institute of Medicine,
20 Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care 17 (Brian D.
21
Smedley et al. eds., 2002) (citation omitted), https://perma.cc/RQK2-U9RA).
22
Despite HHS’s suggestion that the notice and tagline requirements were
23
24 duplicative, these requirements are not met by other non-discrimination provisions. For

25 example, HHS cites the Medicare Advantage (Part C) and Prescription Drug Plans (Part

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D) as requiring taglines in Medicare Communications and Marketing Guidelines
1
2 (MCMG), but the Centers for Medicare & Medicaid Services eliminated this requirement

3 effective this year. See CMS, MCMG (2018), https://perma.cc/2T3G-DTAR.

4
Requirements for notices and taglines in other contexts are also not duplicative. For
5
example, HHS cites requirements in Medicaid and Medicaid managed care, but these
6
differ from the specific requirements of the 2016 rule. See Justice in Aging at 5.
7

8

The elimination of the notice and tagline requirements undermines the purpose

9 of Section 1557. Failing to provide taglines does not provide adequate notice of language
10
assistance services and thus will not ensure entities comply with the statutory
11
nondiscrimination requirements of Section 1557. As such, the 2020 Revised Rule is not
12
13 in accordance with the underlying law and is in excess of HHS’s statutory authority.

14

B. The 2020 Revised Rule Discriminates by Limiting Access to Effective

Communication for People with Disabilities.
15

16

The lack of effective communication has “significant adverse effects on . . . access

17 to, participation in, compliance with, and decision-making in health care.” American

18 Speech-Language-Hearing Association, Comment ID HHS-OCR-2019-0007-127462, at 3;
19
see also ANCOR, Comment ID HHS-OCR-2019-0007-104180, at 2 (“It is essential that this
20
access [to effective communication devices] is protected to ensure that [individuals with
21
22 disabilities] can be active in decision making for their health and to reach the best

23 outcomes.”). To address this problem, the 2016 Final Rule provided clear definitions

24
regarding auxiliary aids and services, interpreters, and other disability related

25

definitions, eliminated by the 2020 Final Rule. Compare 81 Fed. Reg. at 31,466-67 (former

26

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Case 2:20-cv-01105-JLR Document 63 Filed 08/14/20 Page 23 of 31

45 C.F.R. § 92.4, § 92.202) with 85 Fed. Reg. at 37,213-16 (new § 92.102). The 2016 Final
1
2 Rule required that all auxiliary aids and services be provided timely and free of charge

3 as is required by other disability non-discrimination laws. Yet the 2020 Final Rule only
4
requires that a subset of auxiliary aids and services—interpreters--be provided free of
5
charge and in a timely manner. 45 C.F.R. § 92.102(b)(2).
6
Significantly, interpreters provide effective communication for a very narrow
7
8 subset of people with disabilities. Auxiliary aids and devices include a broad range of

9 services such as closed captioning, qualified readers, Braille materials, telephone handset
10
amplifiers, and other similar devices. They also include using people with training, skill,
11
or experience to communicate. Further, individuals with similar disabilities may need
12
13 different devices or assistance. For example, a person who is hard of hearing may not

14 always know American Sign Language or be able to use closed captioning but may be
15
able to use an amplifying device compatible with their hearing aid.
16
The 2020 Final Rule’s distinction between type of auxiliary aids and devices that
17
18 will be provided free and timely discriminates against people who need other auxiliary

19 aids and devices, in direct contravention of Section 1557’s statutory prohibition on
20 disability-based discrimination. See also 28 C.F.R. § 36.301; 34 C.F.R. § 104.4 (entity
21
receiving Federal financial assistance is prohibited from providing an aid, benefit, or
22
service that is not as effective as that provided to others and cannot perpetuate
23
24 discrimination through criteria or methods of administration).

25

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III.
1

HHS Relies on an Inappropriate Calculation of the Cost of Providing Notice and Taglines and Underestimates the Benefits.

2
HHS improperly relied on an incomplete cost-benefit analysis to repeal the notice

3
and tagline requirements. HHS admits that “[r]epealing the notice and tagline
4

requirements may impose costs, such as decreasing access to, and utilization of,
5

6 healthcare for non-English speakers by reducing their awareness of available translation

7 services[,]” 85 Fed. Reg. at 37,232, but stated that it was unaware of “a way to quantify

8
those potential effects.” Id. at 37,234. HHS ignored numerous comments quantifying the
9
harm of this change and indicates that HHS failed to adequately consider the record.
10

11

HHS failed to address multiple comments on the 2019 Proposed Rule which

12 demonstrated that the costs of providing notice under the 2016 Final Rule are not
13
prohibitive. See Ass’n of Am. Med. Colls. (HHS’s cost estimates related to notice were
14
inflated and notice, at most, adds incremental burden given hospital operating
15
16 procedures); ACCESS, Comment ID HHS-OCR-2019-0007-144346, at 4 (the majority of

17 the costs estimated by HHS are associated with provision of EOBs). As many
18 commenters pointed out, HHS provided a sample notice and translated it into 64
19
languages, alleviating entities from the cost of developing their own. HHS also made
20
clear that it expected most covered entities to avoid costs by using its sample notices and
21
22 exhausting current publications before printing new notices. 81 Fed. Reg. 31,453.

23 Commenters also noted that any burdens of wall space and use of resources to post the
24
notice were greatly outweighed by the benefits of conspicuous notice so that people are
25

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aware of and able to access the services that the notice promises. See Asian Americans
1
2 Advancing Justice – Los Angeles, Comment ID HHS-OCR-2019-0007-155779, at 8-9.

3

HHS did not acknowledge these comments or provide any assessment or

4
explanation why other options to reduce the purported burden of the notice requirement
5
would not work or why eliminating the notice provision was the only option considered.
6
Moreover, in estimating costs, HHS heavily relied on studies and reports it received from
7

8 insurers and pharmacy benefit managers that were not provided to the public. See, e.g.,

9 84 Fed. Reg. at 27,258-59. Because HHS failed to adequately weigh the costs and burdens

10
associated with repealing the notice requirement as described in the administrative
11
record, eliminating this provision was arbitrary and capricious.
12

13

Similarly, HHS failed to provide an adequate explanation or consideration of the

14 comments regarding the costs and burdens of the tagline requirements. At the outset,
15
HHS failed to provide sufficient information about the basis of its cost-benefit analysis
16
in the 2019 Proposed Rule. The information provided did not reveal information about
17
18 HHS’s source or methodology of the data it used in its repeal of the taglines. Without

19 this information, commenters could not adequately comment on HHS’s decision-
20 making. See Leadership Conference at 8; NHeLP at 4; see also, e.g., Am. Radio Relay League,
21
Inc. v. FCC, 524 F.3d 227, 236 (D.C. Cir. 2008) (requiring agency to make “critical factual
22
material” upon which it relies available for public comment); Portland Cement Ass’n v.
23
24 Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973) (“It is not consonant with the purpose of a

25

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rule-making proceeding to promulgate rules on the basis of inadequate data, or on data
1
2 that, to a critical degree, is known only to the agency.”).

3

In promulgating the 2020 Revised Rule, HHS failed to adequately consider and

4
address the comments explaining the value of these provisions. See, e.g., Nat’l Latina Inst.
5
Repro. Health at 1-3; California Pan-Ethnic Health Network at 1-2; Colorado Ctr. Law &
6
Pol’y, Comment ID HHS-OCR-2019-0007-147722, at 7; NHeLP at 37; Wash. State
7

8 Coalition for Language Access at 2; Justice in Aging at 4. HHS also failed to consider

9 alternatives suggested by the commenters that could balance the potential costs with the
10
need for individuals to be informed of their rights. See, e.g., NHeLP at 68-69 (suggesting
11
clarifying the definition of “significant document” or examining whether taglines could
12
13 be included in fewer documents if the same document is sent multiple times a year);

14 Aimed Alliance, Comment ID HHS-OCR-2019-0007-125987, at 4 (suggesting requiring

15
more notice to be provided online rather than by mail); Viva Health, Comment ID HHS-
16
OCR-2019-0007-127421, at 1 (suggesting annual mailings).
17

18

Instead, HHS relied solely on data provided by insurers and pharmacy benefits

19 managers, which were not provided to the public for review before the rule was
20 finalized. See 84 Fed. Reg. at 27,858-59, 27,880-82. That data did not contain any
21
information about the reaction of individuals with LEP to the taglines or the impact on
22
this population. HHS acknowledged comments indicating that a hospital observed a
23
24 10% increase in the volume of interpreter service encounters and another saw a 28%

25 reduction on its per-member per-month claims cost with Spanish-speaking patients. 85

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Fed. Reg. at 37,233. It then also acknowledged one plan’s minimally supported
1
2 comments about the inclusion of taglines not yielding an increase in interpreter requests

3 after 2016. Without providing any analysis of this data or additional reasoning, HHS
4
determined that the inclusion of taglines did not improve language access. Id.
5
Further, HHS’s cost-benefit analysis conflicts with the agency’s prior findings. In
6
the 2016 Final Rule, HHS acknowledged substantial benefits of notices and taglines to
7
8 patients and providers. 81 Fed. Reg. at 31,459 (citing Institute of Medicine Report). The

9 Preamble to the 2016 Final Rule additionally stated that “the burdens of taglines on
10
covered entities are outweighed by the benefits . . . for individuals with limited English
11
proficiency by making them aware, in their own languages, of the availability of
12
13 language assistance services.” 81 Fed. Reg. at 31,401. But in 2019 HHS determined that

14 the impact of reduced awareness would be “negligible.” 84 Fed. Reg. at 27,882 (citing a
15
two-year old assertion from a single insurer about the lack of appreciable rise in
16
translation services after the 2016 rule). HHS further reasoned that the vast majority of
17
18 recipients of taglines do not benefit from them. 85 Fed. Reg. at 37,211. This rationale

19 ignores the purpose of taglines in reaching those who would otherwise not know about

20 services to help them access health care. The elimination was arbitrary and capricious.

21
IV.
22

HHS’s Narrowing of Section 1557 Covered Entities Contravenes Statutory Intent.

23

As enacted by Congress, Section 1557 protects individuals from discrimination

24
in any “health program or activity,” any part of which is receiving Federal financial

25

assistance; or any program or activity administered by the Executive, or any entity

26

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Case 2:20-cv-01105-JLR Document 63 Filed 08/14/20 Page 28 of 31

established under Title I of the ACA. 42 U.S.C. § 18116(a). Contrary to the language of
1
2 Section 1557, the 2020 Revised Rule only applies the non-discrimination protections to

3 health programs or activities that receive federal financial assistance from HHS;
4
programs or activities administered by HHS under ACA Title I; and entities
5
established under Title I of the ACA. 85 Fed. Reg. at 37,167-71. This definition and the
6
incorporated narrow definition of health program or activity and Federal financial
7
8 assistance is not supported by the plain meaning of Section 1557 or the ACA. Am. Med.

9 Ass’n., Comment ID HHS-OCR-2013-0007-137131, at 2-3; Cities of New York et al.,
10
Comment ID HHS-OCR-2013-0007-147950, at 16-18; NHeLP at 9-17.
11
The ACA does not define the term “health program or activity,” but uses the
12
13 term health program at least 30 times to reference the provision both of care and of

14 insurance. See, e.g., 42 U.S.C. § 18051; id. § 299b-31 (cross-referencing 42 U.S.C. § 1320a-
15
7b); 25 U.S.C. § 1623. Under the ACA, health program or activity is a broad, inclusive
16
term. In the 2020 Revised Rule, HHS’s cramped interpretation carves out many entities
17
18 and defines health care to separate health care services from paying for those services.

19 85 Fed. Reg. at 37,172-73. Using this distinction, HHS’s conclusions about who is a
20 “health program or activity” leads to an absurd result not consistent with the ACA, as
21
it would lead to many health care programs—Federal or private—not being covered
22
entities because it is rare that any program directly provides services rather than
23
24 paying for services provided. Sharply reducing the types of covered entities creates

25 significant harm to individuals served by those entities who may now have very

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limited recourse for addressing discrimination in those programs, including many
1
2 Federally funded programs and private insurance plans, such as employer sponsored

3 plans. See, e.g., ACLU Foundations of California at 10; NHeLP at 11-15; see generally
4
Brief of Northwest Health Law Advocates et al. as Amicus Curiae, ECF No. 30-1.
5
In addition, the language of Section 1557, including that regarding Federal
6
financial assistance, reflects that of similar remedial statutes such as Section 504 of the
7
8 Rehabilitation Act of 1973 that apply coverage broadly. See 29 U.S.C. § 794; but see 85

9 Fed. Reg. at 37,171 (HHS asserting the statute is different and ignoring the language

10
similarities). The cramped reading of Section 1557 is contrary to the statute, including
11
the provision of Section 1554 limiting HHS’s rulemaking authority. 42 U.S.C. § 18114.
12

13

CONCLUSION

14

The ACA reforms addressed discriminatory practices in nearly all health

15 programs, both public and private. The 2016 Final Rule reflected this broad view of
16
protecting individuals from discrimination in health programs and activities. The 2020
17
Revised Rule seeks to return to a more recessive understanding of discrimination in
18
19 health care. HHS’s new interpretation is contrary to the ACA’s approach to health care.

20

The 2020 Final Rule is contrary to law, arbitrary and capricious, and harmful to

21
individuals who are protected by Section 1557. For the forgoing reasons and those set
22
forth in the State’s memorandum in support of this motion, this Court should grant
23
24 Washington’s request for a preliminary injunction.

25

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Case 2:20-cv-01105-JLR Document 63 Filed 08/14/20 Page 30 of 31

1

DATED: August 14, 2020.

2

NATIONAL HEALTH LAW PROGRAM

3

/s/ Abigail Coursolle

4
Abigail Coursolle (admitted pro hac vice)

5

Jane Perkins*

Elizabeth Edwards*

6

Cathren Cohen*

7

3701 Wilshire Blvd., Suite 750

Los Angeles, CA 90010

8

Tel. (310) 204-6010

Email:
9
coursolle@healthlaw.org

10

perkins@healthlaw.org

edwards@healthlaw.org

11

cohen@healthlaw.org

12
* Not admitted to W.D. Washington
13
SMITH & LOWNEY PLLC
14
/s/ Eric D. (Knoll) Lowney
15

16

Eric D. (Knoll) Lowney (WSB # 23457)

2317 E. John St.

17

Seattle, WA 98112

Tel. (206) 860-2976
18
Email: knoll@smithandlowney.com

19

20

21

22

23

24

25

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CERTIFICATE OF SERVICE
1
I hereby certify that on August 14, 2020, I caused the foregoing to be electronically
2
filed with the Clerk of the Court using the CM/ECF system, causing it to be served on 3 all counsel who have entered an appearance.

4

5

DATED: August 14, 2020, at Sacramento, California.

6

/s/ Abigail Coursolle

Abigail Coursolle (admitted pro hac vice)
7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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 Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 1 of 31

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10

STATE OF WASHINGTON,

CASE NO. C20-1105JLR

11

Plaintiff,

ORDER ON MOTION FOR

v.

PRELIMINARY INJUNCTION

12

UNITED STATES DEPARTMENT

13

OF HEALTH AND HUMAN

14

SERVICES, et al.,

15

Defendants.

16

I. INTRODUCTION

17

Before the court is Plaintiff State of Washington’s (“Washington”) motion for a

18 preliminary injunction. (See Mot. (Dkt. # 4); Reply (Dkt. # 59).) Defendants United

19 States Department of Health and Human Services and Alex M. Azar (together “HHS”)

20 oppose the motion. (See Resp. (Dkt. # 56).) The parties also filed supplemental briefing

21 (see Wash. Supp. Br. (Dkt. # 64); HHS Supp. Br. (Dkt. # 65)) and responses to the

22 court’s order to show cause (see Wash. OSC Resp. (Dkt. # 70); HHS OSC Resp. (Dkt.

ORDER - 1

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 2 of 31

1 # 71)). Four amici also filed briefs. (House of Reps. Amicus (Dkt. # 39-1); Local Gov’ts

2 Amicus (Dkt. # 47); Nw. Health Law Amicus (Dkt. # 52); Nat’l Health Law Amicus

3 (Dkt. # 63).) The court also heard oral argument from the parties. (See 8/14/20 Min.

4 Entry (Dkt. # 61).) The court has considered the motions, the parties’ and amici’s

5 submissions filed in support of and in opposition to the motions, the oral argument of the

6 parties, the relevant portions of the record, and the applicable law. Being fully advised,

7 the court DENIES Washington’s motion for a preliminary injunction because

8 Washington lacks Article III standing.

9

II. BACKGROUND

10

This case arises from HHS’s efforts to implement Section 1557 of the Patient

11 Protection and Affordable Care Act (“ACA”). 42 U.S.C. § 18116. Section 1557 directs

12 that:

13

Except as otherwise provided for in this title (or an amendment made by this

title), an individual shall not, on the ground prohibited under title VI of the

14

Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education

Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act

15

of 1975 (42 U.S.C. 6101 et seq.), or section [504 of the Rehabilitation Act of

1973 (29 U.S.C. 794)], be excluded from participation in, be denied the

16

benefits of, or be subjected to discrimination under, any health program or

activity, any part of which is receiving Federal financial assistance, including

17

credits, subsidies, or contracts of insurance, or under any program or activity

that is administered by an Executive Agency or any entity established under

18

[Title I of the ACA] (or amendments). The enforcement mechanisms

provided for and available under such title VI, title IX, section [504], or such

19

Age Discrimination Act shall apply for purposes of violations of this

subsection.

20

42 U.S.C. § 18116(a). Section 1557 further states that the Secretary of HHS “may” issue

21

implementing regulations. Id. at § 18816(c).

22

ORDER - 2

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 3 of 31

1

Acting under its Section 1557 authority to issue regulations to implement Section

2 1557, HHS issued a rule in May 2016, codified at 45 C.F.R. Part 92 (“the 2016 Rule”).

3 See Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,375 (May 18,

4 2016) (codified at 45 C.F.R. pt. 92). Three facets of the 2016 Rule are relevant to this

5 case.

6

First, the 2016 Rule prohibited discrimination “on the basis of sex” and

7 specifically defined “on the basis of sex” as including sex stereotyping and gender

8 identity. See id. at 31,467-70. Section 1557 prohibits “sex” discrimination through its

9 incorporation by reference of Title IX of the Education amendments of 1972, which

10 states that “[n]o person . . . shall, on the basis of sex, be excluded from participation in,

11 be denied the benefits of, or be subjected to discrimination under any education program

12 or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a); see also 42

13 U.S.C. § 18116(a) (prohibiting discrimination “on the ground prohibited under . . . [T]itle

14 IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.)”). The 2016 Rule

15 explicitly defined “[o]n the basis of sex” as: “discrimination on the basis of pregnancy,

16 false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related

17 medical conditions, sex stereotyping, and gender identity.”1 81 Fed. Reg. at 31,467.

18 1 The 2016 Rule also defined “gender identity” as:

19 an individual’s internal sense of gender, which may be male, female, neither, or a

20

combination of male and female, and which may be different from an individual’s

sex assigned at birth. The way an individual expresses gender identity is frequently

21

called ‘gender expression,’ and may or may not conform to social stereotypes associated with a particular gender. A transgender individual is an individual

22

whose gender identity is different from the sex assigned to that person at birth.

ORDER - 3

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 4 of 31

1

Second, although the 2016 Rule incorporated Title IX’s prohibition on

2 discrimination on the basis of sex, HHS declined to incorporate a religious exemption

3 codified in Title IX into the 2016 Rule. Id. at 31,380 (“We decline to adopt commenters’

4 suggestion that we import Title IX’s blanket religious exemption into Section 1557.”).

5 The Title IX religious exemption at issue states that “this section shall not apply to an

6 educational institution which is controlled by a religious organization if the application of

7 this subsection would not be consistent with the religious tenets of such organization.”

8 20 U.S.C. § 1681(a)(3). Although HHS decided not to incorporate this exemption into

9 the 2016 Rule, the Rule did specifically state that “[i]nsofar as the application of any

10 requirement under this part would violate applicable Federal [and] statutory protections

11 for religious freedom and conscience, such application shall not be required.”2 81 Fed.

12 Reg. at 31,466.

13

Third, the 2016 Rule stated that it applied to the following entities:

14

Except as provided otherwise in this part, this part applies to every health

program or activity, any part of which receives Federal financial assistance

15

provided or made available by the Department; every health program or

activity administered by the Department; and every health program or

16

activity administered by a Title I entity.

17 Id. The 2016 Rule also defined the term “[c]overed entity” as: (1) [a]n entity that

18 operates a health program or activity, any part of which receives Federal financial

19

20 81 Fed. Reg. at 31,467.

21

2 The preamble to the 2016 Rule indicated that this portion of the Rule was intended to

cover provisions like “provider conscience laws, the Religious Freedom Restoration Act

22

(RFRA), provisions in the ACA related to abortion services, [and] regulations issued under the ACA related to preventative health services.” Id. at 31,379-80.

ORDER - 4

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 5 of 31

1 assistance; (2) [a]n entity established under Title I of the ACA that administers a health

2 program or activity; and (3) [HHS].”3 Id. at 31,466. HHS molded these portions of the

3 2016 Rule on Section 1557’s language prohibiting discrimination “under any health

4 program or activity, any part of which is receiving Federal financial assistance, including

5 credits, subsidies, or contracts of insurance, or under any program or activity that is

6 administered by an Executive Agency or any entity established under [Title I of the

7 ACA] (or amendments).” 42 U.S.C. § 18116(a).

8

In 2016, a number of states and private healthcare providers sued to enjoin

9 portions of the 2016 Rule, arguing that gender identity discrimination should not be

10 considered sex discrimination, and that religious organizations should enjoy greater

11 exemptions from Section 1557. See Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660

12 (N.D. Tex. 2016) (“Franciscan All. I”). The Franciscan Alliance court agreed and issued

13 a nationwide preliminary injunction against the 2016 Rule’s definition of “on the basis of

14

15

3 The 2016 Rule also defined “health program or activity” as:

16

the provision or administration of health-related services, health-related insurance

coverage, or other health-related coverage, and the provision of assistance to

17

individuals in obtaining health-related services or health-related insurance

coverage. For an entity principally engaged in providing or administering health

18

services or health insurance coverage or other health coverage, all of its operations

are considered part of the health program or activity, except as specifically set forth

19

otherwise in this part. Such entities include a hospital, health clinic, group health

plan, health insurance issuer, physician’s practice, community health center,

20

nursing facility, residential or community-based treatment facility, or other similar

entity. A health program or activity also includes all of the operations of a State

21

Medicaid program, a Children’s Health Insurance program, and the Basic Health Program.

22 Id. at 31,467.

ORDER - 5

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 6 of 31

1 sex” and its failure to incorporate the religious exemptions in Title IX. Id. at 687-96. In

2 May 2017, HHS moved to voluntarily remand the 2016 Rule so that HHS could “assess

3 the reasonableness, necessity, and efficacy” of the 2016 Rule. Franciscan All. Inc. v.

4 Price, No. 7:16-cv-00108, at 1, ECF No. 92 (N.D. Tex. May 2, 2017). On October 15,

5 2019, on motions for summary judgment, the Franciscan Alliance court re-affirmed its

6 preliminary injunction conclusion that the 2016 Rule violated the Administrative

7 Procedure Act (“APA”), vacated the offending portions of the 2016 Rule, and remanded

8 to HHS for further consideration.4 Franciscan All., Inc. v. Azar, 414 F. Supp. 3d 928,

9 942, 944-45 (N.D. Tex. 2019) (“Franciscan All. II”), appeal filed, No. 20-10093 (5th Cir.

10 Jan. 24, 2020).

11

In June 2019, in the wake of Franciscan Alliance, HHS published a new proposed

12 rule, which sought “to make substantial revisions to the Section 1557 Regulation and to

13 eliminate provisions that are inconsistent or redundant with pre-existing civil rights

14 statutes and regulations prohibiting discrimination on the basis of race, color, national

15 origin, sex, age, and disability.” See Nondiscrimination in Health & Health Education

16 Programs or Activities, 84 Fed. Reg. 27,846, 27,848-49 (June 14, 2019). This proposed

17 rule served as the basis for the final rule at issue in this case (“the 2020 Rule”), which

18 HHS published in the Federal Register on June 19, 2020. See Nondiscrimination in

19 Health & Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg.

20

21

4 Although HHS opposed entry of the preliminary injunction in 2016, by 2019, HHS

agreed with the plaintiffs that the 2016 Rule violated the APA and supported the plaintiffs’

22

summary judgment motion. Franciscan All. II, 414 F. Supp. 3d at 935-36. Accordingly, the court allowed a group of intervenors to appear and defend the 2016 Rule. Id. at 940.

ORDER - 6

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 7 of 31

1 37,160 (June 19, 2020) (to be codified at 42 C.F.R. pts. 438, 440, 460, 45 C.F.R. pts. 86,

2 92, 147, 155, 156).5 The 2020 Rule went into effect on August 18, 2020. Id. at 37,160.

3

Three portions of the 2020 Rule are relevant to Washington’s motion. First, like

4 the 2016 Rule, the 2020 Rule prohibits discrimination on the basis of sex. The 2020 Rule

5 includes a new provision which states:

6

(a) [A]n individual shall not, on any of the grounds set forth in paragraph (b)

of this section, be excluded from participation in, be denied the benefits of,

7

or be subjected to discrimination . . . .

8

(b) The grounds are the grounds prohibited under the following statutes:

9

. . . .

10

(2) Title IX of the Education Amendments of 1972 (20 U.S.C. 1681

et seq.) (sex);

11

. . . .

12

Id. at 37,244. Unlike the 2016 Rule, however, the 2020 Rule does not include a

13

definition of “on the basis of sex.” See id. Instead, the 2020 Rule removes the portion of

14

the 2016 Rule that defined “on the basis of sex” and “gender identity,” and intentionally

15

left these terms undefined. See id. at 37,178 (noting that the 2020 Rule “repeals the 2016

16

Rule’s definition of ‘on the basis of sex,’ [and] declines to replace it with a new

17

regulatory definition”). HHS repeatedly states that this change is intended to merely

18

revert to the “plain meaning” of the term “sex” as it is used in Title IX. See, e.g., id.

19

(noting that the 2020 Rule “reverts to, and relies upon, the plain meaning of the term

20

21

5 Although the 2020 Rule was published in the Federal Register on June 19, 2020, the

22

Rule was finalized within HHS on May 20, 2020, and was filed on June 12, 2020. See 85 Fed. Reg. at 37,248.

ORDER - 7

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 8 of 31

1 [‘sex’] in [Title IX]”). As a result, HHS recognized that judicial interpretations of the

2 term “sex” or “on the basis of sex” could impact application of the 2020 Rule. See, e.g.,

3 id. at 37,178 (“Because Section 1557 incorporates Title IX’s prohibition on

4 discrimination ‘on the basis of sex,’ it presupposes that the executive and judicial

5 branches can recognize the meaning of the term ‘sex.’”), 37,168 (“[HHS] continues to

6 expect that a holding by the U.S. Supreme Court on the meaning of ‘on the basis of sex’

7 under Title VII will likely have ramifications for the definition of ‘on the basis of sex’

8 under Title IX.”), 37,168 (“[T]o the extent that a Supreme Court decision is applicable in

9 interpreting the meaning of a statutory term, the elimination of such term would not

10 preclude application of the Court’s construction.”).

11

Although portions of the preamble suggest that HHS intends to defer to judicial

12 construction of Title IX caselaw on the definition of “sex,” HHS takes a position on the

13 appropriate interpretation of the term “sex” throughout the preamble to the 2020 Rule:

14

“Sex” according to its original and ordinary public meaning refers to the

biological binary of male and female that human beings share with other

15

mammals. As noted in briefs recently submitted by the Federal government

to the Supreme Court, discrimination on the basis of sex means

16

discrimination on the basis of the fact that an individual is biologically male

or female.

17

Id. at 37,178. HHS also explicitly states that it “disagrees with commenters who contend

18

that Section 1557 or Title IX encompass gender identity discrimination within their

19

prohibition on sex discrimination.” Id. at 37,183. Although HHS repeatedly adopts this

20

position throughout the preamble, HHS’s position on the appropriate definition of sex is

21

not included anywhere in the text of the final rule. See id. at 37,244-45.

22

ORDER - 8

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 9 of 31

1

On June 15, 2020—three days after HHS filed the 2020 Rule and four days before

2 the Rule was published in the Federal Register—the United States Supreme Court issued

3 a decision that interpreted “sex” discrimination under Title VII, Bostock v. Clayton

4 County., --- U.S. ---, 140 S. Ct. 1731 (2020). Bostock was a Title VII employment case

5 in which the Court was asked to determine “whether an employer can fire someone

6 simply for being homosexual or transgender.” Id. at 1737. The Court determined that

7 employers could not take such action, and in so ruling, the Court held that “sex”

8 discrimination—as that term is used in Title VII—includes sexual orientation and gender

9 identity discrimination. See id. at 1741-54 (“An individual’s homosexuality or

10 transgender status is not relevant to employment decisions. That’s because it is

11 impossible to discriminate against a person for being homosexual or transgender without

12 discriminating against that individual based on sex.”). Although the majority opinion in

13 Bostock offered no opinion on the impact of its interpretation of “sex” as used in Title VII

14 on other federal statutes that also use “sex,” like Title IX, the dissent contended that

15 “[w]hat the Court has done today––interpreting discrimination because of ‘sex’ to

16 encompass discrimination because of sexual orientation or gender identity––is virtually

17 certain to have far-reaching consequences” and specifically cited Title IX as one example

18 of a statute that could be impacted. See id. at 1778 (Alito, J., Dissenting).

19

The second relevant portion of the 2020 Rule relates to the 2020 Rule’s approach

20 to religious exemptions. The 2020 Rule incorporates the Title IX religious exemption

21 that the 2016 Rule omitted. See id. at 37,245 (stating that HHS’s regulations shall not be

22 interpreted to “violate, depart from, or contradict definitions, exemptions, affirmative

ORDER - 9

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 10 of 31

1 rights, or protections provided by” a list of statutes, including Title IX). HHS explains

2 that it believes that “it is appropriate for this rule to incorporate the Title IX statutory

3 language concerning religious institutions” because Section 1557 incorporates the scope

4 of Title IX, and Title IX includes religious exemptions. Id. at 37,207-08. HHS

5 repeatedly claims, however, that the 2020 Rule does not “create” religious exemptions; it

6 merely explicitly incorporates religious exemptions that Section 1557 already

7 incorporated by reference. See, e.g., id. at 37,206 (“This final rule does not . . . create any

8 new conscience or religious freedom exemptions beyond what Congress has already

9 enacted.”), 37,207 (“This final rule does not craft a religious exemption to Section 1557.

10 Congress has already created various religious and conscience protections in healthcare

11 by enacting several statutes, including RFRA, healthcare conscience statutes, and the

12 religious organization exception in Title IX. This final rule simply states that the Section

13 1557 regulation will be implemented consistent with those statutes.”).

14

The third relevant portion of the 2020 Rule relates to the 2020 Rule’s definition of

15 the scope of covered entities. Specifically, the 2020 Rule states that it applies to:

16

(1) Any health program or activity, any part of which is receiving Federal

financial assistance (including credits, subsidies, or contracts of insurance)

17

provided by the Department;

18

(2) Any program or activity administered by the Department under Title I of

the Patient Protection and Affordable Care Act; or

19

(3) Any program or activity administered by any entity established under

20

such Title.

21 Id. at 37,244. The difference in the scope of coverage between the 2016 Rule and the

22 2020 Rule is relatively subtle. The 2016 Rule applied to “every health program or

ORDER - 10

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 11 of 31

1 activity administered by the Department” and listed HHS as a “covered entity”; the 2020

2 Rule limited that coverage to “any program or activity” administered by HHS under the

3 ACA. Compare id. at 37,244 with 81 Fed. Reg. at 31,466.

4

The 2020 Rule also repeals the 2016 Rule’s definition of “health program or

5 activity” and replaces that provision with the following definition:

6

As used in this part, “health program or activity” encompasses all of the

operations of entities principally engaged in the business of providing

7

healthcare that receive Federal financial assistance as described in paragraph

(a)(1) of this section. For any entity not principally engaged in the business

8

of providing healthcare, the requirements applicable to a “health program or

activity” under this part shall apply to such entity’s operations only to the

9

extent any such operation receives Federal financial assistance as described

in paragraph (a)(1) of this section.

10

85 Fed. Reg. at 37,244. The 2020 Rule then specifically states:

11

For purposes of this part, an entity principally or otherwise engaged in the

12

business of providing health insurance shall not, by virtue of such provision,

be considered to be principally engaged in the business of providing

13

healthcare.

14 Id. at 37,244-45. Thus, the 2020 Rule exempts health insurers from the

15 nondiscrimination requirements in the 2020 Rule on the theory that the provision of

16 health insurance is not a “health program or activity.” See id.

17

III. ANALYSIS

18

Washington moves to enjoin the following portions of the 2020 Rule: (1) HHS’s

19 decision not to define the terms “sex” or “on the basis of sex” in the 2020 Rule; (2) the

20 2020 Rule’s incorporation of the Title IX religious exemption; and (3) the 2020 Rule’s

21 construction of the scope of entities the 2020 Rule covers. (See generally Mot. at 7-24.)

22 Washington alleges that each of these three aspects of the 2020 Rule (1) exceeds HHS’s

ORDER - 11

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 12 of 31

1 statutory authority and ignores applicable limitations on HHS’s regulatory power in

2 violation of 5 U.S.C. § 706(2)(A) and (C); and (2) is arbitrary and capricious in violation

3 of 5 U.S.C. § 706(2)(A). (See Mot. at 7-20.) HHS disputes the merits of Washington’s

4 substantive allegations (see generally Resp. at 11-22), but also challenges Washington’s

5 standing to pursue its claims (see generally id. at 5-11). Because standing impacts the

6 court’s ability to address Washington’s claims on the merits, the court first addresses

7 HHS’s standing arguments before turning to the merits of Washington’s request for a

8 preliminary injunction if Washington is able to establish that it has standing.

9 A. Standing

10

Under Article III, Washington bears the burden of demonstrating that it has

11 standing to litigate in federal court. See U.S. Const. art. III; DaimlerChrysler Corp. v.

12 Cuno, 547 U.S. 332, 352 (2006). Because “[s]tanding is not dispensed in gross,” Davis v.

13 FEC, 554 U.S. 724, 734 (2008) (quoting Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)),

14 Washington “must demonstrate standing for each claim [it] seeks to press” and for “each

15 form of relief sought,” DaimlerChrysler Corp., 547 U.S. at 352. Standing has three

16 elements: “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly

17 traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed

18 by a favorable judicial decision.” Spokeo, Inc. v. Robins, --- U.S. ---, 136 S. Ct. 1540,

19 1547 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992); Friends of

20 the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)).

21 //

22 //

ORDER - 12

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 13 of 31

1

Because Washington must establish standing for each claim it asserts in this case,

2 the court addresses standing as it applies to each of Washington’s three challenges to the

3 2020 Rule.

4

1. Definition of “Sex”6

5

After reviewing Washington’s supplemental brief on standing issues, the court

6 concludes that Washington bases its standing arguments on two alleged injuries that it

7 believes it will incur if the provisions of the 2020 Rule that choose not to define the term

8 “sex” go into effect: (1) additional costs or other economic harms incurred by

9 Washington—including things like decreased tax revenue, additional healthcare coverage

10 costs, increased costs for unemployment benefits, and harm mitigation measures—

11 resulting from an increase in discrimination against Washingtonians or decreased

12

6 The court is aware that the United States District Court for the Eastern District of New

13 York recently held that two private plaintiffs had standing to challenge the 2020 Rule’s decision

not to define “on the basis of sex” and enjoined HHS from enforcing that portion of the 2020

14 Rule. See Asapansa-Johnson Walker v. Azar, --- F. Supp. 3d ---, 20CV2834FBSMG, 2020 WL 4749859, at *6-10 (E.D.N.Y. Aug. 17, 2020) (“Asapansa-Johnson Walker Decision”). The court

15

ordered the parties to address the impact that the Asapansa-Johnson Walker Decision had on Washington’s motion for a preliminary injunction and on Washington’s standing to pursue this

16

case. (See 8/18/20 OSC (Dkt. # 70) at 3, 3 n.1.) The parties agreed that the court can, and should, continue to consider all aspects of this case despite the fact that the Asapansa-Johnson

Walker Decision enjoined portions of the 2020 Rule. (See Wash. OSC Resp. at 1; HHS OSC 17 Resp. at 1.) The court agrees that it is obligated to address Washington’s standing. See

DaimlerChrysler Corp., 547 U.S. at 340 (“We have ‘an obligation to assure ourselves’ of

18 litigants’ standing under Article III.”) (quoting Friends of the Earth, Inc., 528 U.S. at 180).

Because the court ultimately concludes that Washington lacks standing to pursue a preliminary

19 injunction, however, the court need not decide whether it would also be appropriate to address

the merits of Washington’s motion.

20

The court also notes that it gives little weight to the Asapansa-Johnson Walker

Decision’s standing analysis. See Asapansa-Johnson Walker, 2020 WL 4749859 at *6-7. The

21

court’s finding in that case was based on specific facts supplied by two individual, private plaintiffs. See id. Thus, the Asapansa-Johnson Walker Decision on standing does not provide a

22

useful analogy for the standing question presented in this case regarding whether Washington has provided sufficient facts to establish standing to challenge the 2020 Rule.

ORDER - 13

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 14 of 31

1 healthcare coverage for Washingtonians; and (2) increased administrative costs that

2 Washington believes it will incur as a result of changes made in HHS policy under the

3 2020 Rule.7 (See Wash. Supp. Br. at 1-5.) The court addresses each category of harm in

4 turn, below.

5

a. Increased Discrimination or Diminished Healthcare Coverage

6

Washington’s first alleged basis for standing—costs and other economic harms

7 resulting from increased discrimination against Washingtonians or diminished access to

8 healthcare for Washingtonians—fails at the injury in fact prong of the standing inquiry.

9 “To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a

10 legally protected interest that is concrete and particularized and actual or imminent, not

11 conjectural or hypothetical.” Friends of the Earth, Inc., 528 U.S. at 181, (quoting Lujan,

12 504 U.S. at 560); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013).

13 Washington must show that the injury is “certainly impending” or “there is a substantial

14 risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158

15 (2014) (internal quotation marks omitted). “A future injury need not be ‘literally certain,’

16 but there must be a ‘substantial risk’ that it will occur.” Nw. Requirements Utils. v.

17 F.E.R.C., 798 F.3d 796, 805 (9th Cir. 2015) (quoting Clapper, 568 U.S. at 432).

18

19

7 The court also notes that Washington’s standing arguments are based on injuries that

will allegedly be suffered by certain members of the group of “approximately 1,583,681

20 Washingtonians” who “will not be prevented by Washington state law from discrimination on the basis of pregnancy termination, sexual orientation, or transgender status or gender identity.”

21

(See Wash. Supp. Br. at 2 n.2; Kreidler Decl. (Dkt. # 10) ¶¶ 10-14.) According to Washington’s allegations—which HHS does not dispute—these individuals are covered by healthcare plans

22

that are governed by federal law that supersedes the protections provided by the Washington Law Against Discrimination (“WLAD”), RCW ch. 49.60. (See Kreidler Decl. ¶¶ 10-14.)

ORDER - 14

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 15 of 31

1

Washington bases its argument that the 2020 Rule will increase discrimination and

2 decrease healthcare coverage on assumptions about the impact that the 2020 Rule will

3 have on Washingtonians. Washington submitted 17 declarations in support of its motion,

4 many of which attempted to address expected harm to Washington. (See Dkt. ## 6-22.)

5 Many of these the declarations addressing the 2020 Rule’s decision not to define “sex” or

6 “on the basis of sex” assume that this portion of the 2020 Rule “provides that protection

7 from discrimination on the basis of sex in healthcare does not extend to LGBTQ people.”

8 (See, e.g., Booher Decl. (Dkt. # 6) ¶ 4; Roberts Decl. (Dkt. # 17) ¶ 5 (“As I understand it,

9 the new regulation will restrict the scope of Section 1557 of the Affordable Care Act in

10 certain ways, including but not limited to . . . eliminating protection from healthcare

11 discrimination on the basis of pregnancy termination, sexual orientation, and transgender

12 status and/or gender identity . . . .”); Knox Decl. (Dkt. # 8) ¶ 18 (“I understand that the

13 Final Rule specifically rolls back protection from healthcare discrimination on the basis

14 of sexual orientation and gender identity or transgender status.”); Todorovich Decl.

15 (Dkt. # 19) ¶ 9 (“As a result of these changes [in the 2020 Rule], the new regulation will

16 allow health care providers and insurers to discriminate against LGBTQ people and

17 women.”).) But it is far from clear whether the 2020 Rule will, in fact, have such an

18 impact. The text of the 2020 Rule prohibits discrimination on the grounds prohibited by

19 Title IX. See 85 Fed. Reg. at 37,244. Thus, based on the text of the 2020 Rule, the 2020

20 Rule only “provides that protection from discrimination on the basis of sex in healthcare

21 does not extend to LGBTQ people” (see, e.g., Booher Decl. ¶ 4) if Title IX also provides

22 //

ORDER - 15

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 16 of 31

1 that protection from discrimination on the basis of sex in healthcare does not extend to

2 LGBTQ people.8

3

In fact, Washington vehemently argues throughout its brief that the inevitable

4 result of Bostock—which was issued after HHS finalized the preamble language that

5 Washington takes issue with—is that “on the basis of sex” under Section 1557 and Title

6 IX must now be interpreted to include concepts like gender identity and sexual

7 orientation. (See, e.g., Reply at 6 (“HHS cannot possibly offer any reason why Section

8 1557 does not encompass discrimination based on sexual orientation and gender identity

9 after Bostock.”).) Early returns on Title IX caselaw suggest that Washington may be

10

11

8 Washington’s briefing fixates on HHS’s language in the preamble which suggests that

the term “sex” as used in Title IX does not include gender identity and sexual orientation. (See

12 Mot. at 9-12.) However, the court is not convinced that referring to the language in the preamble

is necessary to interpret the 2020 Rule. In the Ninth Circuit, “preamble language should not be

13 considered unless the regulation itself is ambiguous.” See El Comite Para El Bienestar de

Earlimart v. Warmerdam, 539 F.3d 1062, 1070 (9th Cir. 2008); Safer Chems., Healthy Families

14 v. U.S. Envtl. Prot. Agency, 943 F.3d 397, 420 (9th Cir. 2019) (“[B]ecause the scope provisions are not ambiguous on their face, reference to the preamble discussion would be improper.”).

15

Here, the final regulations resulting from the 2020 Rule are arguably unambiguous in scope—the 2020 Rule includes no definition of “on the basis of sex” and instead defers to the statutory

16

language in Title IX and the caselaw interpreting that term. See 85 Fed Reg. at 37,244. The court need not decide whether the 2020 Rule is ambiguous, however, because even if

the court considered HHS’s interpretations of the term “sex” in the preamble, there are still two 17 problems with Washington’s reliance on preamble language. First, the preamble does not state

that HHS’s chosen interpretation of the term “sex” will control application of the 2020 Rule.

18 Instead, the preamble itself states that the 2020 Rule reverts to the plain language in Section

1557 and Title IX, see 85 Fed. Reg. at 37,178, and explicitly concedes that “to the extent that a

19 Supreme Court decision is applicable in interpreting the meaning of a statutory term, the

elimination of a regulatory definition of such term would not preclude application of the Court’s

20 construction,” id. at 37,168. Thus, the language in the preamble acknowledges that Title IX caselaw will control the application of Section 1557, thereby rendering HHS’s interpretation of

21

the term “sex” in the preamble less meaningful. Second, and most importantly, the language in the preamble does not solve Washington’s standing problem regarding the lack of concrete

22

evidence that the 2020 Rule will have the impact on discrimination in Washington that Washington assumes it will have.

ORDER - 16

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 17 of 31

1 correct on that point. See, e.g., Adams by & through Kasper v. Sch. Bd. of St. Johns Cty.,

2 No. 18-13592, 2020 WL 4561817, at *12 (11th Cir. Aug. 7, 2020) (“With Bostock’s

3 guidance, we conclude that Title IX, like Title VII, prohibits discrimination against a

4 person because he is transgender, because this constitutes discrimination based on sex.”).

5

Ironically, however, Washington’s argument about the impact of Bostock harms

6 Washington’s efforts to establish an injury in fact. Washington’s evidence in support of

7 its claim that it will suffer an injury in fact once the 2020 Rule is implemented presumes

8 that the 2020 Rule does not extend protection against discrimination to LGBTQ

9 individuals. (See, e.g., Booher Decl. ¶ 4; Roberts Decl. ¶ 5; Knox Decl. ¶ ; Todorovich

10 Decl. ¶ 9.) Yet, if Washington is correct that Bostock means that Title IX and Section

11 1557 must incorporate protection for gender identity and sexual orientation

12 discrimination, then that means that the 2020 Rule does, in fact, extend protection against

13 discrimination to LGBTQ individuals via the Rule’s incorporation of Title IX by

14 reference. Admittedly, given that Bostock is a Title VII case, it remains unclear whether,

15 or to what extent, Bostock’s rationale will ultimately be applied to Title IX and Section

16 1557. For purposes of standing, however, the key point is that Washington makes no

17 effort to explain why providers or insurers would be willing to risk revising their

18 practices or policies to discriminate against LGBTQ individuals in light of the Supreme

19 Court’s recent guidance in Bostock and the very arguments that Washington advances in

20 this case. (See generally Reply at 1-3; Wash. Supp. Br. at 1-5.)

21

Washington could overcome this deficiency if it could provide specific evidence

22 establishing that a third-party provider or insurer planned to discriminate against or limit

ORDER - 17

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 18 of 31
1 its healthcare coverage for LGBTQ individuals once the 2020 Rule went into effect. The 2 case that Washington relies most heavily on in support of its standing argument, 3 California v. Azar, 911 F.3d 558 (9th Cir. 2018), included such evidence. In that case, 4 the Ninth Circuit found that a group of states had standing to challenge an HHS rule that 5 impacted contraceptive coverage based on its conclusion that “[t]he states show, with 6 reasonable probability, that the [challenged rule] will first lead to women losing 7 employer-sponsored contraceptive coverage, which will then result in economic harm to 8 the states.” Id. at 571. Specifically, the court noted that (1) HHS conducted a detailed 9 regulatory impact analysis that analyzed the scope of expected coverage loss and 10 concluded that between 31,700 and 120,000 women nationwide would lose coverage; and 11 (2) “[t]he record . . . includes names of specific employers identified by the [regulatory 12 impact analysis] as likely to use the expanded exemptions, including those operating in 13 the plaintiff states like Hobby Lobby Stores, Inc.” Id. at 572. Other examples of cases 14 relying on concrete evidence of impending injury sufficient to confer standing abound. 15 See, e.g., Dep’t of Commerce v. New York, --- U.S. ---, 139 S. Ct. 2551, 2565 (2019) 16 (affirming trial court’s finding “that the evidence at trial established a sufficient 17 likelihood that the reinstatement of a citizenship question would result in noncitizen 18 households responding to the census at lower rates than other groups, which in turn 19 would cause them to be undercounted and lead to many of respondents’ asserted 20 injuries”);9 City & Cty. of San Francisco v. United States Citizenship & Immigration 21
9 The trial court’s findings of fact that the Supreme Court confirmed included more than 22 25 pages of detailed findings specifically related to standing. See New York v. United States
ORDER - 18

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 19 of 31

1 Servs., 944 F.3d 773, 787 (9th Cir. 2019) (noting that the Department of Homeland

2 Security estimated that its regulation would cause a 2.5 percent benefits disenrollment

3 rate—which would cost states over one billion dollars—and that “according to evidence

4 supplied by the States, the predicted results have already started”). If Washington could

5 point to similar evidence, then its claimed injuries would cross the line from “mere

6 speculation about the decisions of third parties,” which is inadequate to confer standing,

7 to a showing of “the predictable effect of Government action on the decisions of third

8 parties,” which is sufficient even when the injury depends on the future actions of third

9 parties. Dep’t of Commerce, 139 S. Ct. at 2566; see also Azar, 911 F.3d 571-73 (noting

10 that “[j]ust because a causal chain links the states to the harm does not foreclose

11 standing,” so long as the links are not hypothetical or tenuous).

12

The problem, however, is that Washington lacks sufficient evidence to show that

13 the 2020 Rule’s decision not to define on the basis of sex will yield an increase in

14 discrimination against LGBTQ individuals or a decrease in available healthcare or health

15 insurance coverage for that population. Washington’s best evidence on this point comes

16 from the Declaration of Michelle Roberts, who is the acting Assistant Secretary for the

17 division of Prevention and Community Health at the Washington State Department of

18 Health (“DOH”). (See Roberts Decl. ¶ 2.) But Ms. Roberts’ declaration reads more like

19

20 Dep’t of Commerce, 351 F. Supp. 3d 502, 577-604 (S.D.N.Y. 2019). For example, the New York court noted that “[t]he evidence in the trial record overwhelmingly supports the conclusion that

21

the addition of a citizenship question to the 2020 census will cause a significant net differential decline in self-response rates among noncitizen households (that is, households with at least one

22

noncitizen).” Id. at 578. The court also addressed expert witness testimony provided by both parties related to the standing question. See, e.g., id. at 580-81.

ORDER - 19

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1 Washington’s legal briefing on the proper conclusion to draw from HHS’s statements in

2 the preamble than a fact witness declaration. Ms. Roberts alleges that HHS found in the

3 preamble to the 2016 Rule that that Rule would result in more transgender women and

4 women with a history of pregnancy termination obtaining coverage and accessing

5 services, and that HHS “admits” in the preamble to the 2020 Rule that the Rule “will

6 result in at least some healthcare entities declining to provide coverage consistent with

7 the previous version of the regulation.” (See Roberts Decl. ¶ 6 (citing 81 Fed. Reg. at

8 31,460 and 85 Fed. Reg. at 37181).) According to Ms. Roberts, this means that “the new

9 regulation will result in discrimination by healthcare providers, administrators of

10 healthcare coverage, and others against women with a history of pregnancy termination,

11 gay and lesbian individuals, and transgender individuals.” (Id.).

12

Ms. Roberts overstates the strength of HHS’s actual conclusions. In the 2016

13 Rule, HHS concluded that “[w]e expect that the Section 1557 regulation may contribute

14 to a continued reduction in the number of individuals who are uninsured, although the

15 reduction would be much more modest” than the changes created by Section 1557,

16 generally. 81 Fed. Reg. at 31,460. This tentative and speculative conclusion—which

17 attributed most of the successful outcomes to the impact of Section 1557 and not the

18 expected outcome of the 2016 Rule—is hardly as resolute or fact-based as Ms. Roberts

19 makes it out to be.

20

Moreover, HHS’s findings related to the impact of the 2016 Rule do not

21 categorically apply to the 2020 Rule and mean that “the reverse” of anything that HHS

22 said in the 2016 Rule can be applied to the 2020 Rule. (See Roberts Decl. ¶ 7 (“HHS also

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Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 21 of 31

1 found in the previous version of the regulation that greater healthcare coverage for

2 transgender individuals and women would result in reduced violence against affected

3 individuals, reduced depression and suicide, and declines in substance abuse, smoking,

4 and alcohol abuse rates. The reverse is also true . . . .”); id. ¶ 8 (relying on findings in the

5 2016 Rule that individuals who have been discriminated in healthcare may postpone or

6 avoid seeking healthcare); id. ¶¶ 15-16 (comparing pre-2016 data to post-2016 data to

7 support conclusion that the 2020 Rule will result in discrimination and loss of coverage).)

8 Ms. Roberts’ assumption on that point rests on the same unfounded argument discussed

9 above that the 2020 Rule’s failure to define “on the basis of sex” will inevitably lead to

10 increased discrimination or decreased coverage and a reversion to the state of the

11 healthcare industry before the 2016 Rule. (See Roberts Decl. ¶ 6.) Because it is not yet

12 clear what changes, if any, the 2020 Rule will have on the way Section 1557 is applied,

13 Washington cannot base its conclusion that the 2020 Rule will have a certain impact

14 based on factual findings or data that were specific to the 2016 Rule.

15

The 2020 Rule also does not “admit” that discrimination will increase, or

16 insurance coverage will decrease, as a result of the 2020 Rule. (See Roberts Decl. ¶ 6.)

17 In one sentence unsupported by any evidence, the 2020 preamble speculates that

18 “[p]resumably some insurers will maintain coverage consistent with the 2016 Rule’s

19 requirements and some will not.” 85 Fed. Reg. at 37,181. That kind of off-handed

20 speculation—which was in no way particular to Washington or the particular

21 Washingtonians on which Washington bases its standing arguments, see supra n.7—does

22 not measure up to the kind of detailed agency analysis about the expected impact of an

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Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 22 of 31

1 agency regulation that courts have relied on to find standing. Cf. Azar, 911 F.3d at 572;

2 City & Cty. of San Francisco, 944 F.3d at 787. Moreover, Washington also lacks the

3 kind of concrete evidence about potential providers or insurers who might revise policies

4 or practices in response to the 2020 Rule that was present in Azar, see 911 F.3d at 572

5 (pointing to evidence showing that specific employers who operated in the plaintiff states

6 would likely use newly enacted exemptions); or any evidence to show that “the predicted

7 results have already started” that the court relied on in City and County of San Francisco,

8 944 F.3d at 787.

9

Washington’s general lack of evidence that the 2020 Rule will create an injury in

10 fact is also exacerbated by the impact that the WLAD could have on providers and

11 insurers. Washington wisely bases its standing arguments on the group of

12 “approximately 1,583,681 Washingtonians” who will not be protected by WLAD because

13 they are covered by healthcare plans that are not subject to WLAD’s protections. (See

14 Wash. Supp. Br. at 2 n.2; Kreidler Decl. ¶¶ 10-14.) However, this creates additional

15 standing hurdles that Washington fails to clear. Because Washington relies on this

16 specific subset of Washingtonians, Washington has to show that the specific providers or

17 insurers who provide healthcare services for those 1.5 million Washingtonians intend to

18 revise their practices or policies to discriminate. Washington has not made that showing.

19 Further, Washington fails to show that these hypothetical insurers and providers will

20 revise their policies and practices to discriminate against 1.5 million Washingtonians

21 when the other 6 million Washingtonians are protected against that same discrimination

22 by WLAD.

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Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 23 of 31

1

Washington may well prove correct that the 2020 Rule will have a discriminatory

2 impact on Washingtonians despite Bostock and WLAD. But on the current record,

3 Washington has failed to provide evidence showing that such an impact is “certainly

4 impending” or at a “substantial risk” of occurring. Susan B. Anthony List, 573 U.S. at

5 158. Absent evidence showing that the type of impact Washington fears is impending,

6 Washington’s arguments about all of the direct harms it will suffer as a result of that

7 impact—like decreased tax revenues or increased costs to provide healthcare coverage—

8 are insufficient. Thus, the court concludes that this claimed injury is insufficient to

9 establish standing on the injury in fact prong.10

10

b. Administrative Costs

11

Even if the court agreed with Washington that its second category of claimed

12 harm—administrative costs that it intends to incur once the 2020 Rule goes into effect—

13 satisfies the injury in fact requirement for standing, this alleged injury still fails to

14 establish that Washington has standing to litigate this case because that injury is not

15 traceable to HHS or the 2020 Rule.11 To establish standing, Washington must show that

16 there is a “causal connection between the injury and the conduct complained of—the

17 injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not

18

19

10 Because the court concludes that Washington has not satisfied the injury in fact prong

of the standing requirement, the court need not address whether this claimed injury satisfies the

20 remaining standing prongs—traceability or redressability.

21

11 Because the court concludes that Washington cannot establish that its increased

administrative costs are traceable to HHS or the 2020 Rule, the court need not address whether

22

Washington’s impending administrative costs constitute an injury in fact or satisfy the redressability prong of the standing requirement.

ORDER - 23

Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 24 of 31

1 . . . th[e] result [of] the independent action of some third party not before the court.’”

2 Lujan, 504 U.S. at 560 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42

3 (1976)).

4

Washington submits evidence showing that it will incur increased administrative

5 costs of approximately $178,168.16 to “revise agency policies, websites, and materials”

6 once the 2020 Rule becomes effective. (See Reply at 2; Krehbiel Decl. (Dkt. # 9)

7 ¶¶ 15-16; Moss Decl. (Dkt. # 13) ¶¶ 17-18.) More specifically, Washington claims that it

8 “will be required to use staff time to undertake a comprehensive review of and make

9 necessary changes to” things like form letters, posters and brochures, websites,

10 “[p]olicies and standard operating procedures related to non-discrimination,” notices, and

11 training materials. (See Krehbiel Decl. ¶ 15; Moss Decl. ¶ 15.)

12

The problem with Washington’s argument is that these administrative costs are

13 voluntary, “self-inflicted” costs that Washington imposes based on its desire to inform

14 Washingtonians of changes in federal law. Clapper, 568 U.S. at 418 (“[R]espondents’

15 self-inflicted injuries are not fairly traceable to the Government’s purported activities

16 . . . .”); Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976) (“No State can be heard to

17 complain about damage inflicted by its own hand.”). Although it may well be prudent on

18 Washington’s part to incur administrative costs to inform its citizens about changes in the

19 2020 Rule, Washington does not point to any provision in the 2020 Rule that requires

20 Washington to incur those costs beyond the general fact that the 2020 Rule is a new

21 agency regulation that includes differences from the 2016 Rule. (See generally Reply at

22 1-3; Wash. Supp. Br. at 1-5.) As the court noted during oral argument, however, if states

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Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 25 of 31

1 could establish standing based solely on administrative costs incurred because of a

2 change in agency regulation, then a state could manufacture standing any time it wanted

3 to challenge an agency regulation by expressing a desire to incur administrative costs as a

4 result of the changed regulations. This is not the law. See Clapper, 568 U.S. at 416

5 (“[R]espondents cannot manufacture standing merely by inflicting harm on themselves

6 based on their fears of hypothetical future harm that is not certainly impending. . . . If the

7 law were otherwise, an enterprising plaintiff would be able to secure a lower standard for

8 Article III standing simply by making an expenditure based on a nonparanoid fear.”).

9

To be sure, there are cases in which agency regulations may impact state law or a

10 state’s administrative functioning in a way that is fairly traceable to the agency. For

11 example, in one of the cases Washington cites, District of Columbia v. United States

12 Department of Agriculture, the Department of Agriculture issued regulations that would

13 “dramatically alter the long-standing operations of the [Supplemental Nutrition

14 Assistance Program (“SNAP”), formally known as the food stamp program], placing

15 more stringent requirements on states’ award of SNAP benefits with concomitant,

16 virtually immediate effects on the lives, by the federal government’s estimate, of over

17 one million individuals currently receiving SNAP benefits.” CV 20-119 (BAH), 2020

18 WL 1236657, at *1 (D.D.C. Mar. 13, 2020). The court specifically noted that the SNAP

19 program was a “joint federal-state effort to reduce hunger.” Id. The court ultimately

20 found that the state plaintiffs in that case had established that they would suffer

21 irreparable harm “in the form of significant administrative burdens and costs, including

22 staffing and training costs, notification costs, and costs from expanding employment and

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Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 26 of 31

1 training programs.” Id. at *22. In reaching that conclusion, the court noted that the

2 harms were not “self-inflicted” because “the complained of training costs would ‘directly

3 result from’ the regulatory changes announced in the [r]ule,” and, as such, could not be

4 cured absent an injunction.12 Id. at *24.

5

In contrast, the 2020 Rule does not regulate Washington’s conduct, force

6 Washington to change its policies or practices, or impact Washington law. To the

7 contrary, the 2020 Rule specifically states that it shall not be construed to “supersede

8 State laws.”13 See 85 Fed. Reg. 37,245. Washington does not need an injunction to

9 avoid incurring administrative costs, it merely needs to decide not to incur such costs.

10 Thus, the court concludes that the administrative costs that Washington expects to incur

11 to “revise agency policies, websites, and materials” (see Reply at 2) are not fairly

12 traceable to HHS or the 2020 Rule. As such, this claimed category of injury cannot

13 support Washington’s standing to challenge the 2020 Rule’s decision not to define “on

14 //

15
12 Another example is Texas v. United States, where the Fifth Circuit concluded that 16 Texas had standing to challenge changes to federal regulations that would result in hundreds of
thousands of illegal aliens in Texas becoming eligible to apply for Texas driver’s license, which 17 would cost Texas millions of dollars. 809 F.3d 134, 155 (5th Cir. 2015). In that case, as in
District of Columbia, the federal regulation at issue directly impacted the way in which the state 18 implemented its laws and the court held that it would be unreasonable to require Texas to change
its laws to avoid injury. Id. at 156-57. The regulation in Texas had a much more direct impact 19 on state law and state administrative costs than the 2020 Rule does.

20

13 Indeed, Washington’s Insurance Commissioner specifically issued a letter to “Health

Insurance Carriers in Washington State” stating that state law would remain unaffected by the

21

2020 Rule. See Letter from Mike Kreidler, State of Washington Insurance Commissioner, to Health Insurance Carriers in Washington State (June 23, 2020),

22

https://www.insurance.wa.gov/sites/default/files/documents/final-letter-health-carrierstransgender-protection-non-discrimination.pdf (last visited Aug. 17, 2020).

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Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 27 of 31

1 the basis of sex.” The court DENIES Washington’s motion for a preliminary injunction

2 insofar as it challenges this portion of the 2020 Rule for lack of standing.

3

2. The 2020 Rule’s Religious Exemption

4

Washington lacks standing to challenge the 2020 Rule’s religious exemption for

5 many of the same reasons that it lacks standing to challenge HHS’s decision not to define

6 “on the basis of sex.” Washington alleges that the cost of “administrative burdens” and

7 “harm mitigation” measures that Washington will incur “if healthcare providers refuse to

8 provide services on the basis of a religious or conscious belief” confers standing on

9 Washington. (See Wash. Supp. Br. at 6-7.)

10

The court does not take issue with Washington’s evidence showing that if

11 healthcare providers or health insurers refuse to provide services to Washingtonians on

12 the basis of the 2020 Rule, then Washington will suffer direct harm. (See, e.g.,

13 Todorovich Decl. ¶ 37 (“DOH will incur increased administrative costs for referring

14 people who have been denied care because of protected status or conscience of the scope

15 issue to providers who can provide the services.”), ¶ 38 (“Increases to the cost of care for

16 LGBTQ persons due to loss of benefits, narrower interpretation of coverage and benefits,

17 and higher out-of-pocket costs create more barriers and will increase demand for services

18 and support from the Family Planning Program; the Breast, Cervical, and the Colon

19 Health Program; and the Office of Infectious Disease.”), ¶ 41 (“DOH’s Family Planning

20 Program will be required to redirect their staff and resources from providing their own

21 services to assisting individuals in determining who among the health care providers in

22 the region will serve LGBTQ patients and women who have had pregnancies terminated

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Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 28 of 31

1 in a nondiscriminatory manner.”).) The problem, however, is that this evidence assumes

2 the key premise—that healthcare providers or health insurers will refuse to provide

3 services if the 2020 Rule’s religious exemption goes into effect. But Washington failed

4 to identify any evidence in the record showing that it is certainly impending that

5 Washington healthcare providers or health insurers will refuse to provide services

6 because of the 2020 Rule’s religious exemption.14 (See Reply at 1-3; Wash. Supp. Br. at

7 6-7); see also Azar, 911 F.3d at 572 (finding states had standing to challenge expanded

8 exemptions based on a detailed regulatory impact analysis from HHS and evidence in the

9 record that included “names of specific employers identified by the [regulatory impact

10 analysis] as likely to use the expanded exemptions, including those operating in the

11 plaintiff states like Hobby Lobby Stores, Inc.”).

12

Absent concrete evidence showing that the harm Washington fears is impending

13 or substantially likely to occur, the court also rejects Washington’s claim that the 2020

14 Rule’s religious exemption forces Washington to expend resources on harm mitigation

15

16

14 Here, again, Washington runs into standing problems caused by WLAD. Washington

notes that “nearly half of all hospital beds in Washington are religiously-affiliated” and in some 17 counties “the only hospital beds available are religiously-affiliated.” (See Wash. OSC Resp. at

3.) However, presumably, these hospitals treat some of the 6 million plus Washingtonians who

18 are covered by WLAD’s protections and some of the 1.5 million plus Washingtonians who are

not. (See Kreidler Decl. ¶¶ 7-14.) Thus, Washington’s argument that “the Final Rule’s inclusion

19 of a Title IX religious exemption leaves significant portions of Washington’s population

unprotected from sex discrimination” (see Wash. OSC Resp. at 4) assumes that these

20 religiously-affiliated hospitals will treat a subset of patients in accordance with one set of policies and practices that comply with WLAD and will treat another subset of patients

21

according to another set of policies and practices that do not comply with WLAD once the 2020 Rule is implemented. On the current record, the court cannot conclude that such a result is

22

“certainly impending” or at a “substantial risk” of occurring. Susan B. Anthony List, 573 U.S. at 158.

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Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 29 of 31

1 matters. See Clapper, 568 U.S. at 416 (“[R]espondents cannot manufacture standing

2 merely by inflicting harm on themselves based on their fears of hypothetical future harm

3 that is not certainly impending. . . .”). At this point, Washington’s proposed harm

4 mitigation measures are voluntary and, as such, not fairly traceable to HHS or the 2020

5 Rule. See id.

6

In sum, Washington lacks standing to challenge the 2020 Rule’s religious

7 exemption for many of the same reasons that Washington lacks standing to challenge the

8 2020 Rule’s decision not to define “on the basis of sex.” Thus, the court DENIES

9 Washington’s motion for a preliminary injunction insofar as it challenges the religious

10 exemption portion of the 2020 Rule for lack of standing.

11

3. Covered Entities

12

Washington’s arguments that it has standing to challenge HHS’s construction of

13 the scope of entities covered by the 2020 Rule suffer from the same deficiencies. (See

14 Wash. Supp. Br. at 6-7.) Washington again assumes, without evidence, that entities who

15 are no longer subject to Section 1557 as a result of the 2020 Rule will freely engage in

16 discrimination against LGBTQ individuals, which will result in increased “administrative

17 costs,” “enforcement costs,” and “public health costs.” (See id.) For the same reasons set

18 forth above, the court concludes that these speculative allegations are insufficient to

19 confer standing on Washington to challenge the 2020’s Rule’s construction of the scope

20 //

21 //

22 //

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1 of covered entities. Thus, the court DENIES Washington’s motion for a preliminary

2 injunction insofar as it challenges this portion of the 2020 Rule for lack of standing.15

3 B. Order to Show Cause

4

Although the court concludes that Washington lacks standing to advance its

5 challenges to the 2020 Rule and denies Washington’s motion for a preliminary injunction

6 on those grounds, see supra § III.A, HHS did not separately move to dismiss

7 Washington’s complaint for lack of subject matter jurisdiction or request dismissal in its

8 opposition to Washington’s motion for a preliminary injunction. (See generally Dkt.;

9 Resp.) The court notes, however, that if Washington lacks Article III standing, then this

10 court lacks subject matter jurisdiction over Washington’s claims and is obliged to dismiss

11 them under Federal Rule of Civil Procedure 12(b)(1) without prejudice without passing

12 on the merits of the claims. Cetacean Community v. Bush, 386 F.3d 1169, 1174 (9th Cir.

13 2004).

14

Accordingly, in light of the court’s obligation to ensure that Washington has

15 standing under Article III, see DaimlerChrysler Corp., 547 U.S. at 340, the court

16 ORDERS Washington to show cause why this case should not be dismissed for lack of

17 subject matter jurisdiction. Specifically, Washington must advise the court what remains

18 of this case and why this court has subject matter jurisdiction over any remaining portions

19 of this case in light of the court’s conclusion in this order that Washington lacks standing

20

21

15 Because the court concludes that Washington lacks standing to advance each of its

22

three challenges to the 2020 Rule, the court need not address the merits of Washington’s substantive challenges to the 2020 Rule.

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Case 2:20-cv-01105-JLR Document 72 Filed 08/28/20 Page 31 of 31

1 to pursue a preliminary injunction. Washington must file a submission in response to this

2 order within 10 days of the filing date of this order. HHS’s response to Washington’s

3 submission, if any, shall be filed within 10 days of the filing date of Washington’s

4 submission. There shall be no reply unless the court orders otherwise. The parties’

5 briefing shall comport with the page limitations found in Western District of Washington

6 Local Civil Rule 7(e)(3). See Local Rules W.D. Wash. LCR 7(e)(3).

7

IV. CONCLUSION

8

For the reasons set forth above, the court concludes that Washington lacks

9 standing to challenge the 2020 Rule’s definition of “on the basis of sex,” the 2020 Rule’s

10 incorporation of a religious exemption, and the scope of covered entities under the 2020

11 Rule, and, as such, DENIES Washington’s motion for a preliminary injunction (Dkt. # 4).

12 The court also ORDERS Washington to show cause within 10 days of the filing date of

13 this order why this case should not be dismissed for lack of subject matter jurisdiction.

14

Dated this 28th day of August, 2020.

15

16

A

17

JAMES L. ROBART

United States District Judge

18

19

20

21

22

ORDER - 31