HHS Expands Interpretation of Sex Discrimination in Section 1557

Updated 5/11/2021: This article has been updated to include a statement from David Brown, legal director at TLDEF.

HHS has announced that it will enforce its interpretation of the Affordable Care Act’s Section 1557 and Title IX’s prohibitions against sex discrimination to include sexual orientation discrimination and gender identity discrimination.

“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That’s why today HHS announced it will act on related reports of discrimination,” said HHS Secretary Xavier Becerra. 

The Supreme Court decision to which Secretary Becerra referred was the Bostock v Clayton County case. In this case, the court determined that restrictions against discrimination in Title VII of the Civil Rights Act of 1964 encompassed discrimination against individuals in the workplace based on sexual orientation or gender identity.

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” said Rachel Levine, MD, assistant secretary for health at HHS. 

“No one should be discriminated against when seeking medical services because of who they are.”

The responsibility for enforcing the Section 1557 and Title IX prohibitions rests upon the Office for Civil Rights (OCR) at HHS.

“OCR’s mission is to protect people from all forms of discrimination,” said Robinsue Frohboese, acting OCR director. “OCR will follow Supreme Court precedent and federal law, and ensure that the law’s protections extend to those individuals who are discriminated against based on sexual orientation and gender identity.”

According to the press release, this announcement will impact OCR’s efforts in processing and investigating complaints. However, the press release qualified that the new interpretation does not determine the outcomes of such processes.

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences,” Secretary Becerra added. “It is the position of the Department of Health and Human Services that everyone – including LGBTQ people - should be able to access health care, free from discrimination or interference, period.”

The Bostock v Clayton County case originally targeted employer responsibilities, but this announcement extends the court's decision to healthcare-related cases. The LGBTQ community has experienced both historic and modern discrimination in the healthcare industry.

Discriminatory acts in healthcare can take the form of actions making it more difficult for patients to receive treatment for diseases that acutely impact the LGBTQ community.

For example, in 2020 a study published in JAMA Network Open found that the prior authorization process for PrEP therapy—an HIV treatment—was more prevalent and more challenging in the South.

HIV is a disease that predominantly affects the LGBTQ community. Of the nearly 38,000 new HIV diagnoses in 2018, 69 percent of the patients were gay and bisexual men, according to CDC data. As a result, these prior authorization processes largely impacted the LGBTQ community in the South.

Another area in which discrimination impacts healthcare is in withholding clinically necessary services. Transgender rights activists have been advocating for employers and insurers to drop blanket exclusions for transgender healthcare services and to expand coverage for clinically necessary treatments as recommended by the WPATH Standards of Care.

Prior to this announcement, HHS had been locked in a lawsuit with the Human Rights Campaign (HRC) over the Section 1557 nondiscrimination rule which the Trump administration finalized in 2020. Payer organizations voiced objections to the rule when it was finalized, saying that it was too narrow.

LGBTQ rights advocates have lauded this recent HHS announcement as a step in the right direction.

“LGBTQ people undeniably deserve access to the health care they need, and the Biden administration’s decision to enforce these non-discrimination protections will ensure no hospitals, clinics, or other federally-funded health care program can deny someone care simply because of who they are,” Alphonso David, president of HRC, said in a statement.

“The Trump administration’s reprehensible efforts to blatantly discriminate against LGBTQ people – particularly transgender and non-binary people – were harmful and ignorant, which is why the Human Rights Campaign successfully sued and obtained a preliminary injunction that blocked the rule’s elimination of protections for sexual orientation and gender identity from taking effect last year. We applaud the Biden administration’s decision to enforce these non-discrimination protections in health care, particularly at a time LGBTQ people are under attack from a record-breaking number of discriminatory bills being signed into law and moving through state legislatures across the country.”

However, the Transgender Legal Defense & Education Fund (TLDEF)--another major organization that advocates for the rights of the LGBTQ community--was more reserved in its praise, as the organization remains embroiled in a lawsuit against HHS over the section 1557 rule finalized under the Trump administration.

"While the new policy by HHS is an important step in ending discrimination against transgender people once it is enacted, we still have a long way to go before the harmful Trump-era regulation is fully rescinded," David Brown, legal director at TLDEF, said in a statement. 

"In the meantime, the Supreme Court's decision in Bostock v. Clayton County has made clear that discrimination based on transgender status is illegal, and we should not have to wait to ensure that transgender people get the lifesaving gender-affirming healthcare they need. The Transgender Legal Defense & Education Fund will continue to fight in court in Boston Alliance v. HHS to ensure that nondiscrimination protections are enforced."