Over the last week, the country has taken both a step backward and a step forward with respect to protections against discrimination: One a final rule by the Trump Administration rolling back critical non-discrimination provisions in health care, including for the LGBTQ community; the other, a landmark Supreme Court decision affirming protections against employment discrimination based on sexual orientation and gender identity. Efforts are now underway to reconcile the two. The Supreme Court’s holding, that sex discrimination encompasses discrimination based on gender identity or sexual orientation, should prevail and should be applied in the health care context.
The ACA’s Section 1557: Non-Discrimination
The Health Care Rights Law (Section 1557 of the Affordable Care Act [ACA]), prohibits discrimination in health care on the basis of race, color, national origin, sex, age, and disability. After an extensive process to develop implementing regulations during the Obama Administration, released in 2016, the Trump Administration reopened the regulations for the purpose of rolling back such protections. The Center for Medicare Advocacy joined many other organizations in opposing the Administration’s efforts to limit the law’s protections for individuals who have limited English proficiency, LGBTQ persons, and persons with disabilities and chronic conditions, among others.
On June 12, 2020, the Trump Administration’s Department of Health and Human Services’ (DHSS) Office of Civil Rights (OCR) issued a final rule on Section 1557, which, among other things, removed protections for sex discrimination that is based on gender identity. According to a detailed analysis of the final rule by Katie Keith, published in Health Affairs,
“The final rule eliminates major parts of the 2016 regulation and tries to make significant changes to the scope of Section 1557. The final rule entirely eliminates:
- The definitions section of the current rule (thereby eliminating definitions of key terms such as “covered entity” and “on the basis of sex”);
- Specific nondiscrimination protections based on sex, gender identity, and association;
- Major language access requirements (such as a requirement that covered entities include translated taglines on notices and other significant communications to consumers);
- Notice requirements that require covered entities to post information about Section 1557 and nondiscrimination at their locations and on their websites;
- Requirements to have a compliance coordinator and a written grievance procedure to handle complaints about alleged violations of Section 1557; and
- Various enforcement-related provisions (such as protections against intimidation and retaliation).”
In addition, Keith notes that “[s]eparately, the final rule eliminates explicit nondiscrimination protections for LGBT people in 10 unrelated HHS regulations, such as nondiscrimination standards for qualified health plans and the marketplaces.”
In short, as summarized in a statement by the National Health Law Program (NHeLP), “[a]fter years of executive orders and unrelenting sabotage undermining the landmark Affordable Care Act, the Trump administration has moved to officially rollback the vital regulations implementing ACA’s nondiscrimination protections for people historically discriminated against in our health care system.”
Supreme Court Decision
Days after the 1557 final rule was issued, interpreting “on the basis sex” to exclude protections for LGBTQ individuals, the U.S. Supreme Court issued a decision in Bostock v. Clayton County, Georgia (June 15, 2020, by a 6-3 majority). The Bostock decision holds that discrimination “because of sex” under Title VII of the Civil Rights Act includes, and prohibits, workplace discrimination based on sexual orientation and gender identity.
In a statement by the Human Rights Campaign (HRC) declaring that the Court “is on the right side of history for LGBTQ rights,” HRC’s President stated “This is a landmark victory for LGBTQ equality […] No one should be denied a job or fired simply because of who they are or whom they love. For the past two decades, federal courts have determined that discrimination on the basis of LGBTQ status is unlawful discrimination under federal law. Today’s historic ruling by the Supreme Court affirms that view, but there is still work left to be done.”
The Center for Medicare Advocacy strongly supports the outcome in Bostock and recognizes that it is an important step in the effort to foster equality and inclusion in our society.
What Does the Supreme Court Decision Mean for the Section 1557 Rule?
As the dust settles on these two pronouncements – one expanding the rights of the LGBTQ community and one constricting such rights (and those of other groups often discriminated against), legal analysts are assessing what the former means for the latter. There is now an obvious conflict between the Administration’s definition of sex discrimination and the Supreme Court’s definition. The Supreme Court’s definition should prevail.
As noted by Katie Keith in another Health Affairs blog post addressing this question:
From here, OCR could withdraw its rule or try to clarify its interpretation of sex nondiscrimination. Or OCR might choose to defend its interpretation in court in an inevitable legal challenge. Defending the rule would likely be an uphill battle given the Court’s resounding decision on Title VII and the fact that courts often look to Title VII when interpreting Title IX of the Education Amendment Act of 1972 (Title IX) (the basis for protection under Section 1557).
Echoing that courts have consistently looked to Title VII to construe Title IX, University of Texas law professor Liz Sepper posits that the Administration’s attempt to roll back 1557’s protections “as to LGBTQ discrimination” is “dead in the water” (see her analysis on Twitter here). Sepper notes that Bostock won’t remedy the many “bad interpretations that narrow antidiscrimination law – for now, it won’t apply to health insurers the way the 2016 rule did – in ways that hurt all people – but especially transgender people.” She also notes that DHHS “put in place a religious exemption that allows many entities inclined to discriminate to continue to do so. Many fights will take place on this ground.”
Ian Millhiser writes in Vox that the reach of Bostock likely extends beyond employment discrimination, but also likely falls short of dismantling discriminatory practices implemented in the military. He notes that the decision “strongly suggests that neither educational institutions nor health care providers may discriminate against LGBTQ individuals. If that’s the case, the Trump administration’s new health care regulation should fall […]. Outside of the military […] Bostock is a sweeping decision with implications stretching far beyond employment discrimination. Though the Trans military ban may survive, much of the rest of the Trump administration’s anti-LGBTQ agenda is in serious trouble after Bostock.”
As legal battles are waged about the scope of the Bostock decision, the fate of the final 1557 Rule is unclear. Thankfully, however, it appears to be in significant jeopardy, at least with respect to discrimination against LGBTQ persons. The Center for Medicare Advocacy will continue fight to strengthen critical non-discrimination protections in health care, and beyond.