Health Policy 10.15.2013

Fenway Comments on HHS’s Rulemaking for the Nondiscrimination Requirements in Section 1557 of the Affordable Care Act

Fenway urges HHS to issue a nondiscrimination provision to ensure LGBT Americans’ ability to access nondiscriminatory health care in all settings

On September 30, the last day the U.S. government was open before the shutdown, The Fenway Institute submitted public comment to the U.S. Department of Health and Human Services urging HHS to issue a nondiscrimination provision to ensure LGBT Americans’ ability to access nondiscriminatory health care in all settings, regardless of sexual orientation or gender identity.

Fenway believes that such a regulation would be consistent with other regulations HHS has published in order to implement the Affordable Care Act, such as the 2012 federal regulation that outlaws sexual orientation and gender identity discrimination by Qualified Health Plans traded on state Health Insurance Marketplaces.  This 2012 regulation protects against insurance discrimination on the basis of sexual orientation and gender identity, but not against discrimination in health care. Because there is no federal civil rights statute covering sexual orientation, in the absence of a federal sexual orientation health care nondiscrimination regulation, lesbian, gay and bisexual people remain vulnerable to discrimination in health care in states without nondiscrimination protections.

Section 1557 of the Affordable Care Act explicitly refers to Title IX of the Education Amendments of 1972. Title IX, often used to protect girls and women from sex discrimination in school sports, has been interpreted by the courts and HHS to also cover gender identity and, therefore, transgender people.  While Title IX protects the right of transgender people to access nondiscriminatory health care under the ACA, this is not widely understood. We therefore seek a federal nondiscrimination regulation that covers both sexual orientation and gender identity; such a regulation would help educate providers and clinical staff of the need to provide nondiscriminatory health care to LGBT patients.

Twenty-nine states do not have a sexual orientation nondiscrimination law, and 34 states do not have a gender identity nondiscrimination law. Some state sexual orientation and gender identity nondiscrimination laws outlaw employment discrimination, but not public accommodations discrimination, leaving LGBT people vulnerable to discrimination in health care in the absence of federal protection.

In its comment, The Fenway Institute argued that discrimination in health care on the basis of actual or perceived sexual orientation could be understood to be a form of sex discrimination related to sex stereotyping, as described on page 5 of the request for comment, and related to what are socially normative, heterosexual sex roles. Anti-gay discrimination could therefore plausibly be connected to Title IX of the Education Amendments of 1972.

Several recent decisions by the U.S. Equal Employment Opportunity Commission Office of Federal Operation (EEOC OFO) have found that discrimination on the basis of sexual orientation can constitute discrimination on the basis of sex when the discrimination is rooted in the complainant’s failure or perceived failure to conform to gender stereotypes.  In Couch v. Department of Energy (August 13, 2013), the EEOC OFO found that anti-homosexual slurs directed against an employee in the workplace constituted a form of “sex-based epithets” which falls within the scope of Title VII of the Civil Rights Act of 1964 as a form of “gender stereotyping” sex discrimination. The EEOC OFO also found that discrimination and harassment based on “perceived sexual orientation” constitutes a form of “gender stereotyping” sex discrimination within EEOC jurisdiction.

An HHS nondiscrimination regulation covering sexual orientation and gender identity and health care would make it more likely that LGBT people will self-disclose to health care providers. Self-disclosure of sexual orientation and gender identity and the tracking of such data in electronic health records is a critical step toward better understanding and reducing LGBT health disparities.

A federal nondiscrimination regulation would be consistent with steps taken by nongovernmental bodies to protect LGBT patients. The Joint Commission now requires hospitals it accredits to establish nondiscrimination policies that are inclusive of sexual orientation and gender identity and expression and to implement equal visitation policies.

The Fenway Institute believes that a federal regulation from HHS banning discrimination on the basis of sexual orientation and gender identity in health care will help further transform the U.S. health care system into one in which LGBT people can access quality, culturally competent health care the same way other Americans can. Such a regulation would send a clear message to providers and clinical staff that LGBT people deserve nondiscriminatory care. It would be in line with, and contribute significantly to, efforts to improve health care and reduce disparities.