Take Action! Protect Against Discrimination in Healthcare

A new proposed rule, announced by the U.S. Department of Health & Human Services (HHS), restores important protections for LGBTQ+ people under Section 1557 of the Patient Protection and Affordable Care Act (ACA), also known as the health care non-discrimination law.  This is an important first step toward protecting LGBTQ+ people in the ACA, and the administration is accepting public comments on the rule through October 3, 2022.

Make your voice heard by October 3rd and let the Biden Administration know that discrimination has no place in health care! It takes two minutes, and makes a difference. Click here to submit your comment to let HHS know you support this proposed regulation.

Section 1557 of the Affordable Care Act provides important protections against discrimination in health care programs and activities based on race, color, national origin (including limited English proficiency and primary language), sex (including pregnancy status and related conditions, sexual orientation, gender identity, sex stereotypes, and sex characteristics, including intersex traits), age, and disability.

This original interpretation of “sex” was changed under the Trump administration in 2020 to mean “male or female and as determined by biology”. This definition erased protections for transgender and non-binary patients, or anyone else whose gender or presentation is perceived as incongruent with their sex assigned at birth. In addition to altering the definition of sex, the change made it easier for healthcare entities to discriminate and harder for patients who experience discrimination to do anything about it.

Last year, however, the Biden Administration’s Office of Civil Rights within the Department of Health and Human Services announced that they would reinterpret Section 1557 to align with a 2020 Supreme Court ruling on sex-based discrimination.

You might also recall that in 2020 Callen-Lorde joined a lawsuit against then Trump-Pence administration’s version of the rule, which rolled back the protections of 1557. Given the new proposed rule, we and our co-plaintiffs and lawyers are considering a voluntary stay in the case. This would pause proceedings, but still keep the case “alive” should the final rule not solidify all of the changes we want. We believe our suit – and others – have played an important role both in raising the ways in which the Rollback Rule was deficient and in pushing the administration to propose a strong new rule.

And, by most accounts, the new proposed rule is strong and it is a good start; but there still is room to strengthen it, and it is not final. Advocates are heartened that the administration has proposed a regulation that would provide robust protections against discrimination in health care; and the final rule needs to go further to make sure TGNB and intersex people, as well as BIPOC communities and people in need of reproductive care are able to get the care they need.

Just remember: Until this proposed rule is finalized, the Rollback Rule is still on the books. We are encouraged, but it is too early to declare victory.

In summary, the proposed rule would:

• Reapply Section 1557 to many health insurers and some third-party administrators (TPAs)
• Extend Section 1557 to health care providers that receive payment through the Medicare Part B program
• Interpret Section 1557’s ban on sex discrimination to include sexual orientation, gender identity, and pregnancy-related conditions
• Prohibit discrimination based on association and marital, family, or parental status
• Prohibit the use of discriminatory clinical algorithms in health care decision making and help ensure non-discriminatory access to telehealth services
• Reinstate and expand notice requirements to enable access to language assistance services and auxiliary aids and services
• Require entities to adopt new policies and procedures on Section 1557 and train employees on these changes and standards; and
• Require covered entities to post information about Section 1557 and non-discrimination at its locations and on its website.

For a deeper dive, check out this article.

Until we have a final rule that fully protects our LGBTQ+ communities, we will keep fighting!