Since the era of the Mattachine Society and the Daughters of Bilitis the LGBTQ movement has grown in leaps and bounds. And yet, one frontier keeps escaping our grasp: healthcare rights. Why should we care? In 2019 it is technically still legal to discriminate against LGBTQ patients and deny them medical care on the basis of their sexual orientation and/or gender identity. However, there are a series of regulations from the U.S. Department of Health and Human Services (HHS) confirming that the ACA prevents healthcare discrimination on the basis of LGBTQ identity. The problem is many of us are unaware these regulations exist and even more unaware that our right to healthcare is being challenged in the federal court system. In order to defend our healthcare rights, we must first educate ourselves on the current battlefield and identify how to best intervene.
In 2010, President Barack Obama signed the Affordable Care Act into law and brought the American people one step closer to universal healthcare. But one particular section of the bill truly revolutionized the healthcare industry. Section 1557 of the ACA, known as the Health Care Rights Law, prohibits discrimination in healthcare services on the basis of race, color, national origin, age, sex, and disability. This legislation applies to any healthcare or insurance provider receiving federal funding.
But where do LGBTQ people fit in? Up until 2016 no one was really sure. Patients could choose to pursue legal recourse if they felt they had experienced LGBTQ discrimination, but the outcome of each ruling was not guaranteed to influence the results of other cases. For six years the ambiguity of this legal language left us unsure if we held the fundamental human right to healthcare. In May 2016, HHS rectified this wrong when its Office of Civil Rights (OCR) released a 362-page series of regulations which clarified that discrimination on the basis of sex included sex assigned at birth, gender identity, gender expression, and sexual orientation.
The revised legal language did not guarantee LGBTQ individuals specific gender affirming or other LGBTQ informed healthcare services. However, it did prevent clinicians and insurance providers from withholding services they would normally provide to other patients. For example, it would be illegal to withhold hormone therapy from transgender patients if the same clinician was providing hormone replacement to other patients (e.g. estrogen replacement therapy for post-menopausal patients). The same language provided new legal grounds for protecting LGBTQ patients’ right to gender affirming surgeries, reproductive healthcare, chronic disease management, etc. Individuals experiencing LGBTQ discrimination could now file complaints against discriminatory parties with HHS which would lead to federal investigations and subsequent legal penalties.
Unfortunately, this victory was short lived. In August 2016, the Franciscan Alliance (Catholic hospital system) challenged the regulations around sex-based discrimination. In Franciscan Alliance v. Azar, Judge O’Connor, a Texan federal district court judge, ruled in favor of the Franciscan Alliance. On December 31, 2016 an injunction was delivered against HHS barring the implementation of the new regulations. In 2017 the Trump administration chose a passive stance on the issue and opted not to challenge the court’s ruling.
Where does that leave us now? It is now March 2020 and HHS still cannot enforce the original regulations on sex-based discrimination. In a “shocking twist” that surprised no one in the gender diverse community, HHS attempted to enforce a revised version of the regulation protecting sexual orientation but not gender identity. The effort was a reflection of a cancer that has infected the LGBTQ movement for decades; the pursuit of justice by cisgender LGB individuals at the cost of the rights of our transgender siblings. Judge O’Connor ultimately ruled against the revised language, allowing us the opportunity to rectify our wrongdoing and stand on the right side of history. The side that protects all members of the LGBTQ community from healthcare discrimination.
Where do we go from here? In October 2019 the Supreme Court heard three cases surrounding individuals who experienced LGBTQ based employment discrimination. Decisions are expected to be released in summer 2020. A decision in favor of the plaintiffs would extend the reach of the Civil Rights Act of 1964 and Title IX and provide protected class status to LGBTQ individuals. Unfortunately, this outcome is not currently in the hands of U.S. citizens. However, there is an alternative strategy in which we can all play a direct role. The executive branch of the federal government has the power to challenge the 2016 ruling and reinstitute the original regulation language provided by the HHS Office of Civil Rights. Unfortunately, President Trump has turned a blind eye to the healthcare needs of our community. In November 2020 we have the power to regain our rights by voting President Trump out of office!