Department of Health and Human Services Releases Notice of Proposed Rulemaking to Update Section 1557 Provisions, Which Prevent Discrimination On Basis of Race, Color, National Origin, Sex, Age and Disability
WASHINGTON — The Human Rights Campaign (HRC) — the nation’s largest lesbian, gay, bisexual, transgender and queer (LGBTQ+) civil rights organization — praised the Biden-Harris administration’s announcement today of a Notice of Proposed Rulemaking (NPRM) relating to the Affordable Care Act that looks to strengthen the law’s nondiscrimination provisions. These changes stand to improve access to healthcare for LGBTQ+ people – if finalized as proposed, the updated regulation implementing Section 1557 of the Affordable Care Act would provide clear protections on the basis of sexual orientation and sex characteristics, in addition to improving protections for gender identity, which is already enumerated.
“No one should face discrimination in accessing medical care or insurance. This Notice of Proposed Rulemaking is a welcome step to better ensure protections, including those based on sexual orientation and gender identity,” said Joni Madison, HRC Interim President. “Despite the advances in policy during the Obama and Biden administrations, LGBTQ+ people continue to face disproportionate challenges when it comes to accessing healthcare. This rule change would help to close that gap, and it is desperately needed at a time when some states are attacking access to care.”
The updated rule will bring the rule in line with the U.S. Supreme Court’s landmark Bostock v. Clayton County decision, which cemented the legal interpretation that discrimination on the basis of sexual orientation and gender identity is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.
The Section 1557 rule, as implemented during the Obama administration and still in effect, already prohibits most insurers from discriminating on the basis of sex — including gender identity — when providing health coverage. The original rule also provided protections based on sex stereotypes that included examples of discrimination based on sexual orientation. Discrimination on the basis of gender identity includes:
Blanket exclusions on any transition–related healthcare services;
The denial or limitation of coverage for services used for gender transition when those services would normally be covered when treating a non-transition related health condition; and
The refusal to cover treatment that is typically associated with one particular gender, because an individual identifies with another gender or is listed as having another gender in their medical records or on a personal form of identification.
Section 1557 requires that providers treat individuals in a manner consistent with their gender identity, including in access to health care facilities and in receiving care. Wherever people are separated or labeled by gender, people are to be treated according to their self-identified gender. Section 1557 applies to all health programs and activities, any part of which receives any Federal financial assistance — including but not limited to physicians offices, hospitals, community clinics and nursing care facilities.
In 2019, the Trump administration announced an impending rule change to Section 1557 that would have undermined protections for LGBTQ+ people.
HRC sued in 2020 to block the rule from going into effect, arguing that the removal of protections against sex stereotyping and gender identity exceeded the administration’s authority to define sex discrimination under the ACA and grossly would have undermined the law’s primary goal of eliminating barriers and broadly expanding access to healthcare and health education programs.
The updated protections were among the key suggestions in HRC’s Blueprint for Positive Change, a document with more than 80 policy suggestions released in November 2020 for the then-incoming Biden administration.
The roll-back was blocked through a preliminary injunction issued in response to HRC’s lawsuit, and in May 2021, the Biden administration announced that it would enforce federal policy to protect LGBTQ+ people from discrimination in health care based on gender identity and sexual orientation.
A History of Disparity
According to the Williams Institute at the UCLA School of Law, about 15% of LGBTQ+ people in the U.S. are uninsured, compared to 12% of non-LGBTQ+ people. The LGBTQ+ population is also more likely to be unemployed (9% vs. 5%) or to have an annual salary below $24,000 (25% vs. 18%), both factors that can make it difficult to obtain health insurance. In 2021, HRC called attention to a report from the United States Centers for Disease Control and Prevention (CDC) that showed LGBTQ+ people were more susceptible to the negative impacts of the COVID-19 pandemic, noting that 37% of LGBTQ adult smokers smoke every day compared to 27% of non-LGBTQ people; 21% of LGBTQ adults have had asthma, compared to 14% of non-LGBTQ people; and one in five LGBTQ adults aged 50 and above have diabetes.
Fear of discrimination causes many LGBTQ+ people to avoid seeking health care, and when they do enter care, studies indicate that they are not consistently treated with the respect that all patients deserve. Studies by Lambda Legal show that 56% of LGB people and 70% of transgender and gender non-conforming people reported experiencing discrimination by health care providers — including refusal of care, harsh language and physical roughness because of their sexual orientation or gender identity. According to a report by the National Center for Transgender Equality, 23% of transgender respondents did not see a doctor when they needed to because of fear of being mistreated as a transgender person and a startling 55% of transgender respondents who sought coverage for transition-related surgery were denied.
The Human Rights Campaign is America’s largest civil rights organization working to achieve equality for lesbian, gay, bisexual, transgender and queer people. HRC envisions a world where LGBTQ+ people are embraced as full members of society at home, at work and in every community.
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