Non-Discrimination and the Affordable Care Act: Proposed Rule

The Affordable Care Act (ACA) was signed into law in 2010, extending to all Americans the opportunity to acquire affordable health insurance. In addition, the ACA has been beneficial by, among other things, prohibiting insurers from denying coverage based on pre-existing conditions and expanding Medicaid.

Section 1557 of the ACA, which outlines the non-discrimination provisions, stipulates that healthcare providers cannot discriminate on the basis of race, color, national origin, sex, age, or disability status under any health program that receives Federal funding. A proposed rule issued by the Department of Health and Human Services (HHS) in September is meant to interpret what exactly is covered by Section 1557 and who specifically is protected from discrimination under the Act. While there are parts of the proposed rule that are great, some portions, as described below, need more work to ensure adequate protections for LGBTQ people and their families.

First, we would like to applaud HHS for including discrimination based on gender identity within the definition of sex discrimination. This is critical because of the long history of pervasive discrimination by healthcare providers that transgender people have had to endure. For example, a national transgender discrimination survey from 2009, Injustice at Every Turn, showed that nearly one-third of respondents were refused care altogether because of their gender identity. The proposed rule by HHS will make this kind of discrimination illegal. The proposed rule will also make it illegal to categorically deny health care coverage related to gender transition. Under the proposed rule, plans must cover medically necessary medications, surgeries, and other treatments for transgender people if they cover similar services to non-transgender people.

We would also like to applaud HHS for including associational language in the proposed rule. This means patients cannot face discrimination or a denial of care because they are associated with someone, such as a family member, who falls into a protected group. This will allow more people to feel comfortable in seeking crucial medical care, because they will not have to be afraid that their provider will deny them care based on their family or associations.

However, there is more work to be done. While it is great that HHS is interpreting sex discrimination to include discrimination on the basis of gender identity, sexual orientation has not been similarly included. This leaves the door open for healthcare providers to discriminate against people who are lesbian, gay, or bisexual. LGB people have reported experiencing discrimination in healthcare settings, and perceived discrimination can serve as a barrier to health care access for them and their families. Furthermore, LGB people are more likely to suffer disparities in health indicators from the general population.

In addition to omitting protection on the basis of sexual orientation, HHS is also considering inserting a provision that would allow for a religious exemption in the provision of healthcare services. This would allow healthcare professionals to deny healthcare based on a religious or moral objection to the sexual orientation or gender identity of potential patients. Inclusion of any religious exemption in the ACA would defeat the purpose of the nondiscrimination rule, as it would write the possibility of discrimination back into Section 1557.

While it is great that the proposed rule includes associational language and protections against discrimination on the basis of gender identity, we believe that including sexual orientation in these non-discrimination provisions and excluding a religious exemption would help the ACA fulfill its mission much more completely. We encourage you to submit your own comments to this proposed rule to help show HHS that it is crucial for them to include sexual orientation and exclude a religious exemption.