The Fight for Healthcare Discrimination Protections
We had a lot to celebrate on June 15, 2020 when the United States Supreme Court acknowledged protections against discrimination directed toward LGBTQ-identifying employees in the workforce.
Even in light of the recent SCOTUS decision, the broader fight for LGBTQ equality is far from over. Throughout this country, LGBTQ Americans are still consistently facing discrimination in other areas of life. Healthcare Discrimination and disparities are still widespread and experienced. It appears there could be a growing cause for concern in regards to the stability of the existing protections LGBTQ Americans have. These protections serve as a barrier to protect from healthcare discrimination, negligence, and malpractice.
As reported by the Human Rights Campaign (HRC), as far back as July 2019, the U.S. Department of Health and Human Services (HHS) initiated changes to Section 1557 of the Patient Protection and Affordable Care Act. Section 1557 is the provision of the Affordable Care Act (ACA) that sets guidelines to prohibit discrimination of patients within the healthcare sector.
Now it appears that moves have been made on those announced plans nearly a year later.
Determination on what is considered healthcare discrimination was based on the same word, ‘sex,’ within the ACA, which was a word that was the focus of the SCOTUS decision. While the decision was made by the SCOTUS in June 2020, to uphold protections for Americans based on ‘sex,’ HHS determined on a Monday, four days later, to take action toward redefining what is considered discrimination in healthcare and health insurance.
By redefining Section 1557 of the ACA, the HHS has reversed a 2016, Obama-era rule, landmark non-discrimination provision that ultimately created Section 1557 of the ACA.
HHS’s redefinition marks a significant change to the administrative rule created by the Obama administration. This redefinition made it so that Section 1557 of the ACA removed explicit protections for LGBTQ people in various healthcare programs and activities by excluding protections from discrimination based on sex stereotyping and gender identity.
In short, HHS has erased language and references to gender identity and sexual orientation, which directly targets where LGBTQ people stand with civil healthcare protections. Section 1557 sought to extend nondiscrimination protections to individuals participating in any healthcare programs funded by or administered by HHS itself as well as Health Insurance Marketplaces and all plans offered by issuers that participate in those Marketplaces.
Due to amendments and acts—all passed within the last 56 years—there are federal laws to prohibit discrimination based on race, color, national origin, sex, age, and/or disability in specific health programs or activities.
Section 1557 of the ACA was to recognize and build upon civil protections granted by the long-standing, Federal civil rights laws:
- Title VI of the Civil Rights Act of 1964
2. Title IX of the Education Amendments of 1972
3. Section 504 of the Rehabilitation Act of 1973 and
4. the Age Discrimination Act of 1975
We must see how damaging the HHS revisions to Section 1557 can potentially become to LGBTQ Americans, especially to LGBTQ Coloradans. To give a proper perception of how LGBTQ Americans can face disparity in healthcare systems, I broke things down into avenues, or forms, of disparities.
Fiscal Disparities
Fiscal and economic disparities in obtaining a quality, LGBTQ-friendly healthcare is the first avenue of healthcare disparity in Colorado.
The ACA managed to extend healthcare coverage to more than 600,000 Coloradans through the public health exchange and Medicaid expansion. Still, it was Section 1557 of the ACA that granted protections from discrimination for LGBTQ Americans.
Financial disadvantages can exacerbate disparities and discrimination experienced. Factors such as poverty, coupled with being in a demographic that statistically face the extra possibility of having to combat social stigmas, make it imperative LGBTQ Coloradans have protections that prevent discrimination.
While the One Colorado education fund (OCEF) reports that “only 5 percent of the LGBTQ community in Colorado are uninsured, compared to 10 percent in 2011.” OCEF continues to explain that over one-third of LGBTQ Coloradans say that they do not have an optimal choice of and access to LGBTQ-competent healthcare providers who are in-network and compatible with their insurance carrier.
This number perhaps correlates with the fact that “36 percent of LGBTQ respondents reported needing to see a healthcare professional, but not being able to due to cost—this is compared to 12.9 percent of the general public with the same issue.” This means the existence of affordable healthcare doesn’t always correlate with quality healthcare for LGBTQ-identifying Coloradans.
Healthcare that can be particularly draining financially often revolves around HIV-centric care, which statistically affects gay and bisexual men as well as transgender people at higher rates in America that other populations.
There was a time not too long ago in which American health insurance companies would put lifetime limits on the amount of coverage they provided to Americans with chronic illnesses, such as HIV/AIDS.
The ACA helps alleviate that issue. The lifetime limits the existed pre-ACA imposed on Americans living with HIV and created fiscal barriers to quality and stable healthcare. The key to people living with HIV is perpetual healthcare treatment to keep the virus at bay. As there currently is no FDA-approved cure for HIV/AIDs, the perpetuity of HIV Treatment puts it at risk to be affected by fiscal and socio-economic disparities.
Healthcare that can be particularly draining financially often revolves around HIV-centric care, which statistically affects gay and bisexual men as well as transgender people at higher rates in America that other populations.
But of course, even if Section 1557 was left untouched, it is worth noting that in 2017, the US Congress passed the Tax Cuts and Jobs Act of 2017. This act had regulations written into it that destabilized the protections afforded by the ACA alone. The law removed the individual mandate and eliminated medical expense tax deductions for medical expenses, which subsequently affects people living with HIV/AIDS and who identify as transgender.
Lack of Available LGBTQ-Friendly Healthcare
There was a time where queer Americans could not even dare to go to their healthcare providers out of fear of legal ramifications. To escape being legally persecuted for their sexual orientation, the ability to be upfront and honest about sexuality and sexual health practices became impossible.
To say there was a lack of available LGBTQ-friendly healthcare offerings decades ago would not start to explain the experience LGBTQ Americans had to endure. After all, this is a country that, until recent history, outlawed homosexuality and specific sexual practices were considered sodomy were illegal in the American judicial system. Americans are no longer subject to legal trouble when expressing their sexuality. However, even so, LGBTQ stigmas still significantly exist and can be found today in a systematic lack of available LGBTQ-friendly healthcare.
What does LGBTQ-friendly healthcare look like? Hospitals and clinics that offer diversity training to help staff broaden their understanding of LGBTQ culture and specific needs of the LGBTQ community are examples of LBTQ-Friendly healthcare. Creating inclusive, welcoming environments that help create positive LGBTQ patient experiences is what LGBTQ-friendly healthcare can look like. Actions that help foster welcoming environments for LGBTQ patients can be as small of a gesture of learning preferred names and applying the correct pronouns for transgender people, another example of LGBTQ-friendly healthcare.
Also, when healthcare providers take the time to use gender-neutral language on documents and forms that are viewed or completed by the patient, it can go a long way toward making a more personalized and better patient experience. This is supported by data published by a survey published by Community Marketing & Insights that suggest that “78 percent of LGBTQ individuals expressed they would be willing to switch brands that address their demographic directly.”
If the LGBTQ demographic is addressed directly and made to feel comfortable and safe, they can be led to be upfront about one’s health experiences and sexual health easier.
When it is easy for LGBTQ Coloradans to be open with their healthcare providers, higher rates of positive healthcare experiences are reported. Quality healthcare offerings within a community often mean access to treatment and prevention of public health concerns such as HIV and STI outbreaks. In addition to the concept of the need for available LGBTQ-Friendly Healthcare, we must also consider the quality of HIV and STI focused healthcare, as sexual health is a significant health concern for LGBTQ Americans, especially to gay, bisexual men.
OCEF supports this by explaining that their findings suggested that respondents who experienced LGBTQ-friendly and competent services are far more likely to be screened and treated for sexual health needs. Respondents even expressed they are more likely to be offered PrEP by LGBTQ-friendly healthcare providers, which is a daily mediation that has been instrumental in slowing the spread of the HIV virus within the gay community in recent years.
Transgender Healthcare Disparities
In my time researching for this article, I quickly came to the determination that it is essential to depict avenues of healthcare disparities that are experienced by transgender Coloradans. Transgender Coloradans continue to experience perhaps the worse results when seeking healthcare equity and equality outcomes. There are more instances of disparities compared to Lesbian, Gay, Bisexual, Queer and Non-Conforming individuals. Transgender people face more discrimination, mental and behavioral health issues, and fight the struggle of high costs or even the potential for flat out denial of their care needs due to insufficient insurance coverage.
If you are a transgender person, healthcare needs are essential. Discrimination, when it is combined with a lack of health insurance coverage, has the potential to harm Transgender people most in the LGBTQ community. Many transgender people choose to treat their experiences with gender dysphoria by transitioning socially, and may also want to medically transition. When a transgender person medically transitions, it opens them to the risk of healthcare discrimination.
It was once viewed as a form of healthcare discrimination when before the ACA, a transgender person’s identification labeled their experience as a pre-existing condition to health insurance companies and healthcare systems. This consideration of being transgender as a pre-existing condition led to cases in which transgender Americans experienced being charged more for the exact same health care costs and services as their cisgender peers.
Cost is the most common disparity that frequently prevents transgender Coloradans from being able to afford hormone therapy, and according to OCEF. About 59 percent of transgender respondents indicated to OCEF they were on hormone therapy. Of the percentage on hormone therapy, a vast majority—78 percent of them—reported they were able to access it. Of the 40 percent that were not on hormone therapy, more than half—66 percent of transgender people responded they did not even know if they had access to it with their health insurance.
If cost isn’t the issue, the experience of having health care flat out denied to transgender Coloradans is a reality. Both HRC and OCEF reports that one-third or “34 percent of trans respondents have been denied coverage for an LGBTQ-specific medical service like HIV medications, hormones, PrEP, PEP, and gender-affirming care”.
National Center for Transgender Equality (NCTE) explains that “Transgender people’s health care is both widely stigmatized and misunderstood. Those unfamiliar with the health needs of transgender people might portray transition-related care as “cosmetic” or a choice. The fact is that the medical necessity of transition-related care is overwhelmingly recognized by medical experts as effective and necessary for many transgender people.”
The ACA Regulations protected Transgender people from healthcare discrimination. HRC outlines just how difficult obtaining quality healthcare can be for transgender Americans by explaining that ’70 percent of Transgender Americans report facing Healthcare Discrimination from a healthcare provider.’ HRC adds that ‘one in three transgender people were flat out denied care when they went to seek healthcare.’
With that info in mind, it is essential to note that a healthcare provider can be anyone for which a patient receives healthcare from—this could be from a professional who works as a physician, to the surgeon, physical assistants, nurses, physiotherapists, dentists, psychologists, psychiatrists, or pharmacists. So this means it is not only your doctor who you speak with, often in a private room, which can be discriminating toward your healthcare needs due to your sexual identity. You could also be at risk of healthcare discrimination when you interact with nurses, clerical staff, and the very people you may rely on to provide you your medication.
When you conceptualize how many possible interactions within the healthcare field in which LGBTQ Americans can, and historically have faced improper or downright discriminative care—it reminds you how important the administrative rule was that created Section 1557 of the ACA.
When one body of bureaucracy and government can decide on one set of protections while denying another set—it causes concern. It shows inconsistency in beliefs and creates uncertainty about how safe LGBTQ Americans feel a system with no regulatory means of being held accountable. It outlines just how unstable the Trump Administration’s influence and effect have been on American Government.
