Rumble v. Fairview Health

RUMBLE V. FAIRVIEW HEALTH SERVICES: FEDERAL JUDGE HOLDS THAT THE AFFORDABLE CARE ACT’S FRANKENSTEIN CIVIL RIGHTS PROVISION PROTECTS TRANSGENDER INDIVIDUALS

By: Leah Tabbert, Volume 99 Staff Member

The federal judiciary has spent years teasing apart and examining the many provisions of the Patient Protection and Affordable Care Act (ACA).[1] Yet amidst the excitement surrounding religious freedom,[2] congressional power,[3] and states’ rights[4] objections, one small but powerful piece of the ACA remains largely overlooked. Section 1557 of the ACA prohibits discrimination by health organizations that receive federal funding, drawing protected classes from four other federal statutes.[5] Last week, Judge Susan Richard Nelson of the District of Minnesota zeroed in on Section 1557 and ruled that a young transgender man has stated a claim for health care discrimination on the basis of his gender identity.[6] As the first case to conduct an in-depth analysis of Section 1557,[7] Rumble v. Fairview contributes to the ACA’s growing jurisprudence by beginning to distill a coherent civil rights provision from Section 1557’s patchwork composition.

Rumble v. Fairview Health Services

Jakob Rumble is a transgender man. Transgender is “[a]n umbrella term that may be used to describe people whose gender expression does not conform to cultural norms and/or whose gender identity is different from their sex assigned at birth.”[8] While Rumble was assigned a female gender at birth, he identifies as male. Last year, Rumble filed a claim against Fairview Health Services and Emergency Physicians, P.A., for violations of the ACA’s Section 1557 and the Minnesota Human Rights Act.[9] He alleged that he was misgendered, neglected, and subjected to an assaultive physical exam when he came into the ER at Fairview Southdale Hospital suffering from fever and genital pain.[10] After Rumble filed his claim, both defendants moved to dismiss for failure to state a claim upon which relief can be granted.[11] Defendant Emergency Physicians argued, inter alia, that Rumble did not plausibly allege discrimination on the basis of sex.[12] In an opinion issued earlier this month, Judge Nelson disagreed.

The ACA Prohibits Transgender Discrimination in Health Care

Section 1557 of the ACA prohibits healthcare discrimination by health programs receiving federal financial assistance. It provides:

[A]n individual shall not, on the ground prohibited under title VI of the 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 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 benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments).[13]

By drawing from four different federal civil rights statutes, Section 1557 prohibits health care discrimination on the basis of: race, color, or national origin (Title VI); sex (Title IX); age (ADEA); or disability (Rehabilitation Act).[14] The court in Rumble began by addressing whether discrimination on the basis of sex encompasses discrimination on the basis of gender identity.

In terms of statutory interpretation tools, Section 1557 leaves much to be desired. Without case law interpreting Section 1557 or any formal agency regulations, the court relied upon an opinion letter from the Director of the U.S. Department of Health and Human Services’ Office of Civil Rights, Leon Rodriguez. The letter states that Section 1557 “extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity and femininity.”[15] Affording the letter strong Skidmore deference, the court concluded that Section 1557 protects individuals from discrimination on the basis of gender identity.[16]

Rumble is the latest in a growing wave of cases finding that discrimination against transgender individuals is a form of sex discrimination.[17] Its origins stretch as far back as the landmark decision of Price Waterhouse v. Hopkins, in which the Supreme Court found that adverse employment actions motivated by sex stereotyping violated Title VII of the Civil Rights Act.[18] Broad legal protection from discrimination in health care would be a particularly important development for the transgender community, which has faced disproportionate barriers to health care.[19]

It’s Alive: Finding Coherent Protection in a Frankenstein Statute

Like mad scientists, the drafters of Section 1557 stitched it together from pieces of four other federal statutes.[20] The problem with mad-science drafting, however, is that each piece carries its own baggage. The Rumble opinion reasoned that, to operate rationally, Section 1557 must be allowed to transcend the sum of its parts.

Section 1557 provides that “the enforcement mechanisms provided for and available under such title VI, title IX, section 504, or such Age Discrimination Act shall apply for purposes of violations of this subsection.”[21] In Rumble, the court considered what this language means for the standards of proof, administrative exhaustion, and causation requirements of Section 1557.

After observing that Section 1557 “as a whole” appears “intended to create a new, health-specific, anti-discrimination cause of action,” the court determined that a single standard should apply under Section 1557, “regardless of a plaintiff’s protected class status.”[22] The court explained:

Reading Section 1557 otherwise would lead to an illogical result. . . . For instance, a plaintiff bringing a Section 1557 race discrimination claim could allege only disparate treatment, but plaintiffs bringing Section 1557 age, disability, or sex discrimination claims could allege disparate treatment or disparate impact. . . . Rumble also aptly notes that if different standards were applied based on the protected class status of the Section 1557 plaintiff, then courts would have no guidance about what standard to apply for a Section 1557 plaintiff bringing an intersectional discrimination claim.[23]

If the four component statutes of Section 1557 necessarily bring all their baggage with them—including standards of proof, administrative exhaustion requirements, and independent bodies of case law—then Section 1557, the court reasoned, would be incoherent. In light of these “patently absurd circumstances,” the court in Rumble concluded that Congress “likely referenced the four civil rights statutes mainly in order to identify the ‘ground[s]’ discrimination is prohibited.”[24] The court declined, at the motion to dismiss stage, to formulate the precise enforcement standards that ought to apply to Section 1557 actions.[25]

Section 1557 represents a new frontier in health care—a unified federal civil rights statute prohibiting health care discrimination.[26] By freeing Section 1557 from the baggage of its composite parts, the Rumble decision would give the ACA’s civil rights provision room to grow into that important role. In the continuing judicial project of interpreting and implementing the ACA, Rumble v. Fairview is  a notable step forward.