Office of Civil Rights final rule on nondiscrimination in health care a major step forward for transgender people; more work to be done to protect gay, lesbian and bisexual people

On May 13, 2016 the Office of Civil Rights at the federal Department of Health and Human Services (OCR) published a final rule implementing the nondiscrimination provision of the Affordable Care Act (ACA) under Section 1557. This rule states that discrimination based on gender identity is prohibited in health facilities, programs and activities receiving federal funding, as it constitutes a form of sex discrimination banned by the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. The rule also states that discrimination based on sex stereotyping is prohibited.

This nondiscrimination regulation offers potent protections to transgender individuals who experience discrimination in health care. Such discrimination is widespread, and has been shown to be a barrier to accessing preventive, routine health care as well as emergency care. While the rule’s coverage of sexual orientation was somewhat less explicit and robust, it could also offer protections for gay, lesbian and bisexual individuals who experience discrimination. In its release accompanying the final rule, OCR stated:

“While the final rule does not resolve whether discrimination on the basis of an individual’s sexual orientation status alone is a form of sex discrimination under Section 1557, the rule makes clear that OCR will evaluate complaints that allege sex discrimination related to an individual’s sexual orientation to determine if they involve the sorts of stereotyping that can be addressed under 1557. HHS supports prohibiting sexual orientation discrimination as a matter of policy and will continue to monitor legal developments on this issue.”

In the final rule, HHS OCR cited a number of recent Equal Employment Opportunity Commission rulings that “discrimination on the basis of sexual orientation necessarily involves sex-based considerations,” and stated:

“For all of these reasons, OCR concludes that Section 1557’s prohibition of discrimination on the basis of sex includes, at a minimum, sex discrimination related to an individual’s sexual orientation where the evidence establishes that the discrimination is based on gender stereotypes. Accordingly, OCR will evaluate complaints alleging sex discrimination related to an individual’s sexual orientation to determine whether they can be addressed under Section 1557. OCR has decided not to resolve in this rule whether discrimination on the basis of an individual’s sexual orientation status alone is a form of sex discrimination under Section 1557. We anticipate that the law will continue to evolve on this issue, and we will continue to monitor legal developments in this area. We will enforce Section 1557 in light of those developments and will consider issuing further guidance on this subject as appropriate.”

In addition to EEOC rulings, a number of federal court rulings have found that sex stereotypes include stereotypical gender roles and the belief that women should only date or marry men, while men should only date or marry women. For instance, in Terveer v. Billington a federal court ruled that a gay man experienced sex discrimination because his “sexual orientation is not consistent with [his supervisor’s] perception of acceptable gender roles” and because his “orientation as homosexual had removed him from [his supervisor’s] preconceived definition of male.”

Given the growing threat posed by state anti-LGBT legislation that targets access to healthcare, it is essential that the federal government further clarify in the near future that anti-gay, lesbian and bisexual discrimination in healthcare is also illegal and unacceptable. We encourage LGBT equality advocates and those working to make health care more affirming and equitable for LGBT patients to encourage gay, lesbian, and bisexual patients who experience discrimination in health care to contact these LGBT legal organizations: Lambda Legal and the ACLU LGBT Rights Project. It is also important to get the word out to the LGBT community and to health care providers across the country about these new federal nondiscrimination requirements.

Rep. Joseph Kennedy III (D-MA) and Rep. Bobby Scott (D-VA) introduced an amendment to the federal Religious Freedom Restoration Act (RFRA) on May 18, 2016. The Do No Harm Act would prohibit RFRA exemptions that would cause third-party harm, and would restore the proper balance between religious liberty, on the one hand, and civil and legal rights, on the other, that were intended to be codified and preserved by the original RFRA. If passed, this amendment would help to ensure that individuals are not forced to follow the religious beliefs of others, putting them at risk of discrimination and harm. We encourage Congress to adopt this legislation.

State government leaders across the U.S. can also take steps to reduce anti-LGBT discrimination in health care by passing nondiscrimination legislation that covers public accommodations, including health care. This would remove an important barrier to LGBT people’s ability to access the quality care they need and deserve.

Sean Cahill, PhD is Director of Health Policy Research at the Fenway Institute and Director of Curriculum and Policy at the National Center for Innovation in HIV Care.

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