Beyond The Ballot – Know Your Right To Treatment!
The U.S. Department of Health and Human Services (HHS) recently issued a final rule under Section 1557 of the Affordable Care Act (ACA) that outlines strengthened protections for LGBTQ+ people in health care. Section 1557 specifically prohibits discrimination based on race, color, national origin, sex, age, or disability in health programs or activities that receive federal funding. Over the last decade, this provision has undergone several alterations by prior Administrations, which has led to confusion and fear from LGBTQ+ patients trying to seek health care. With the historical surge of anti-LGBTQ+ healthcare legislation being introduced over the past couple of years, this new rule is a much-needed step in protecting LGBTQ+ people as they seek care.
History Of The Rule Under The Obama And Trump Administrations
LGBTQ+ people have long experienced discrimination and barriers when seeking healthcare. Based on a 2022 survey by the Center for American Progress (CAP), 15% of LGBQ respondents—and 23% of LGBQ people of color—experienced care refusal by a provider in the past year. For trans and non-binary (TNB) individuals, 32% reported that they experienced care refusal by a healthcare provider in the past year. Rates of discrimination were even higher for TNB people of color, with 46% reporting care refusal. The CAP survey also showed that 55% of intersex respondents reported a healthcare provider refused to see them because of their sex characteristics or intersex variation. For TNB patients, having their insurance cover necessary and affirming medical care has become an ever-increasing obstacle. In the past year, 30% of TNB patients, including 47% of TNB patients of color, reported at least one form of denial by a health insurance company, including denials for necessary gender-affirming hormone therapy or gender-affirming surgery. Delaying or avoiding healthcare due to discrimination contributes to poorer health outcomes for LGBTQ+ individuals, including higher rates of chronic diseases like heart disease, certain cancers, asthma, and strokes. Discrimination also takes a toll on mental health, with LGBTQ+ patients having higher rates of mental health distress and suicidality. With the numerous healthcare barriers that LGBTQ+ patients face, Section 1557 became one avenue to provide better protection in healthcare for LGBTQ+ patients.
Section 1557 is the non-discrimination provision of the Affordable Care Act (ACA), introduced in 2010, that made it unlawful for health care providers to refuse to treat—or to otherwise discriminate against—an individual based on their race, color, national origin, sex, age, or disability. While Section 1557 and the ACA provided certain protections for LGBTQ+ patients, there was still the need to clearly and explicitly implement protections for LGBTQ+ people, especially TNB individuals. So, under the Obama Administration, HHS released a new Section 1557 rule in 2016 that expanded the definition of sex discrimination to include discrimination related to gender identity, thereby prohibiting anti-trans discrimination in insurance coverage and in health care settings.The sex discrimination definition was also updated to prohibit discrimination based on sex stereotypes. These stereotypes are usually based on heteronormative and binary views and result in prevalent forms of anti-LGBTQ+ discrimination in our health care system. This new rule provided historic protections for LGBTQ+ patients.
Unfortunately, in 2020, the Trump Administration released its new Section 1557 rule as part of a systematic erosion of LGBTQ+ protections. This new rule eliminated the general prohibition on discrimination based on gender identity and sex stereotyping. The 2020 rule only worsened anti-LGBTQ+ and particularly anti-trans discrimination in healthcare. For example, the rule would have allowed denying a trans man a medically necessary hysterectomy for gender-affirming care, even though this procedure would have been provided for a cisgender woman without issue. The 2020 rule also adopted blanket religious freedom exemptions for health care providers making it easier for LGBTQ+ patients to be denied care based on a provider’s religious beliefs. The Trump Section 1557 rule also removed sexual orientation and gender identity nondiscrimination protections in several Centers for Medicare & Medicaid Services (CMS) programs. This was especially heinous as many of the impacted CMS programs disproportionately benefit LGBTQ+ individuals.
Just a few days after the release of the 2020 rule, The Supreme Court issued a ruling in Bostock v Clayton County, Georgia. The Court found that discrimination based on sex encompasses sexual orientation and gender identity in the context of employment. This would provide legal challenges to the Trump Administration’s new 1557 rule and an injunction would prevent healthcare providers and insurers from having to abide by it. Even with the hope of the Bostock v Clayton ruling, there was already confusion and fear on the part of LGBTQ+ patients as they were unsure if they would be discriminated against or denied care.
The 2024 Section 1557 Rule
After the Biden Administration sought public comments from stakeholders on how to best strengthen Section 1557, the Administration released the new Section 1557 rule in 2024. This updated Section 1557 reinstates explicit prohibitions on discrimination based on gender identity and it introduces new applications that prohibit discrimination based sexual orientation or sex characteristics, including intersex traits. Section 1557 will apply to all federal health programs and activities, including health insurance issuers, and for the first time in six years, Medicare Part B providers. The new rule makes sure to clarify the broad intended scope of the rule to cover all health programs and activities and health insurers receiving federal funds. This new rule comes at a crucial time as LGBTQ+ patients have been fending off attacks against the care they need. Over 300 anti-trans laws have already been introduced in 2024, and most have been directed at banning access to gender-affirming care. The new Section 1557 rule not only reinstated necessary protections for LGBTQ+ patients, but it will also provide more protections for LGBTQ+ patients to seek care safely. With this new rule in place, if you believe that you or someone else has been subject to discrimination in health care or health coverage, you may file a complaint with the HHS Office for Civil Rights (OCR) under Section 1557.
The history of Section 1557 is not just about protecting LGBTQ+ patients, it’s reflective of elected official’s support for those protections. It’s important to have elected officials who will fight for the right to healthcare for everyone. You can visit HHS to read more about the new Section 1557 rule and you can visit our Advocacy page to read our public comment to the Biden Administration on Section 1557.
You can also visit our Advocacy page to learn more about our work.