When Jakob Rumble filed suit for what he saw as discriminatory treatment during a hospital visit in 2015, the tide was turning in favor of transgender rights.
A provision of the 2010 Affordable Care Act, section 1557, had prohibited gender discrimination by health care providers, and Rumble and his lawyers at Gender Justice in St. Paul were the first in the country to sue under the law.
Meanwhile, President Obama had also issued guidelines regarding transgender student rights, saying that prohibiting transgender students from using bathrooms that align with their gender identity violated federal laws. Those actions and others set a tone of tolerance on transgender issues.
As Rumble heads into a settlement conference this week with the hospital, it would be an understatement to say the landscape has changed.
In December, a Texas judge halted enforcement of the section 1557 provision and issued a nationwide injunction, finding that anti-discrimination statutes only prohibit discrimination based on biological sex. The ruling caused the judge in Rumble’s case to put that part of the lawsuit on hold. Rumble’s lawyers have continued the suit under Minnesota’s civil rights laws, which have broader protections based on gender.
But it was clear the mood had shifted again. In March, the U.S. Supreme Court decided it would not hear the case of transgender high school student Gavin Grimm, of Virginia, who was suing for the right to use the bathroom of his choice.
During the campaign, and after his victory, President Trump courted the LGBT community, promising to “protect” it from Muslims. He bragged about his friendship with Caitlyn Jenner and said he opposed North Carolina’s anti-transgender bathroom bill. A day later, Trump started backtracking on the bathroom bill, and LGBT rights, saying the issue should be left to the states.
It got worse. Trump revoked Obama’s federal guidelines that said transgender students have the right to use public school restrooms of their choice. In late March, Trump went even further by appointing Roger Severino director of the Civil Rights Office at the Department of Health and Human Services.
Severino has argued against same-sex marriage and said that civil rights protections should not extend to transgender patients — patients just like Rumble.
Asked how the Trump promises to the LGBT community were going, Rumble’s attorney Christy Hall replied: “Not so well. Regardless of the status of Trump himself, Ivanka Trump has also shown sympathy to transgender rights. Meanwhile, Trump appointed Severino, who has a record of being extremely hostile to transgender rights. I don’t know how it will all have an impact [on the settlement conference].”
The Rumble case began when he checked in at the Fairview Southdale ER in June 2013. He identified himself as a male, but he was told by a clerk on duty that he was on record as female, and she gave him a wristband with an “F” on it. Rumble also said in his suit that he was mistreated “in a hostile and aggressive manner” by medical staff and that it caused him physical and emotional pain and made him fearful of going to the doctor.
U.S. District Judge Susan Richard Nelson ruled Rumble had a plausible case, and that it should go forward. But first, Nelson ordered that they try to settle the case.
Teresa Nelson, interim executive director of the American Civil Liberties Union of Minnesota, said Trump’s promise to be “terrific” on LGBT rights has been a sham.
“He has not been ‘terrific,’ ” said Nelson. “People who he’s added to his cabinet have been openly hostile to LGBT rights, including [Education Secretary Betsy] DeVos and [U.S. Attorney General Jeff] Sessions.”
Until recently, the local ACLU was involved in a transgender lawsuit in Virginia, Minn. The lawsuit alleged that the Virginia school district’s policy violates student privacy rights by allowing a transgender student to use the girls’ restrooms and locker rooms at the high school. The school was following the Obama administration guidelines, so when Trump’s Department of Education dumped the guidelines, the plaintiffs dismissed their suit.
“Half the case went away when the Department of Education dropped the guidelines,” said Nelson, who acknowledged the plaintiffs may have decided they’ve already won with the regression on laws protecting transgender people.
“The Department of Education guidelines were tremendously helpful and kept cases out of the courts,” Nelson said. “They were a precedent and they were persuasive.”
Rumble’s case is also being investigated by the United States Department of Health and Human Services Office for Civil Rights, but is on hold while the lawsuits proceed, according to attorney Hall. Because of the appointment of Severino at the national level, with his written record of animosity toward the transgender community, Hall said future plaintiffs may skip pursuing complaints through the office and head to court instead.
Meanwhile, I’m guessing Trump will continue to say he’s protecting the LGBT community with one hand while he destroys it with the other.
Asked how Rumble is doing, Hall replied: “He’s doing OK. It’s been a long road.”
For all of us.
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