One Colorado, a leading advocate for LGBTQ Coloradans and their families, is taking the lead in condemning the changes to Section 1557 of the Affordable Care Act (ACA). Section 1557 is the nondiscrimination provision of the ACA protecting rights and access to healthcare on the basis of race, color, national origin, sex, age, or disability.
The rule has been in effect from 2010, when the ACA was passed, till 2016 when the section was amended to prohibit discrimination on the basis of gender identity and the termination of pregnancies at a federal level.
This extension of Section 1557 was immediately challenged in court by eight states and a number of private plaintiffs in the case of “Franciscan Alliance, Inc. et al v. Burwell.” The U.S. District Court for the Northern District of Texas issued an opinion that ceased the implementation of these new protections.
Since December 31, 2016 the ruling has been under review by the federal government: however, recent proposals by the Trump administration through the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) want to enforce policy that would immediately end protections for those covered from the 2016 extension.
One Colorado’s Executive Director Daniel Ramos released the following statement:
“The proposed rule would severely threaten LGBTQ patients’ access to all forms of health care, create confusion among patients and providers about their rights and obligations, and promote discrimination. It could also encourage hospitals to deny care to LGBTQ people and enable insurance companies to deny transgender Americans’ coverage for health care services that they cover for non-transgender Americans.
“The rule would also make it harder for other people experiencing discrimination in healthcare to know and exercise their rights, including people with Limited English Proficiency (LEP) and people suffering from chronic health conditions, like HIV/AIDS.
“The state of Colorado passed the Colorado Anti-Discrimination Act (CADA) in 2008, which protects people from discrimination based on their sexual orientation and transgender status in places of employment, housing, and public accommodation, including within medical settings. While Coloradans would still be protected from discrimination, this proposed rule would further create confusion between the application of state and federal law.”
The hinging argument that makes this proposal possible are the types of protection pertaining to sex, specifically sex stereotypes. In 1989, the Supreme Court made it illegal to discriminate based on sex stereotypes, meaning that people who do not conform to gender stereotypes have protections from discrimination. This ruling has been used to extend the concept of “sex” to offer protections based on sexual orientation and gender identity.
The DOJ on April 5 reversed its opinion on gender identity that Title VII does not protect their rights, giving a legal opinion that the “sex” provision limits protections to cisgender individuals. Additionally, the HHS is supporting this rollback by stating: “the proposed rule would not create a new definition of discrimination “on the basis of sex.” Instead HHS would enforce Section 1557 by returning to the government’s longstanding interpretation of ‘sex’ under the ordinary meaning of the word Congress used.”
This rollback would primarily effect transgender, gender nonconforming, and intersex individuals from receiving appropriate and safe healthcare. Insurance companies as well could not be required to provide services based on gender identity, leaving many individuals without or restricted from insurance.
Changing the rule of Section 1557 also has lasting impacts on the overall healthcare of the entire LGBTQ community, as redefining the prohibition on the basis of sex could confuse the language surrounding the coverage and protections for sexual orientation. Healthcare providers would have an opening to limit and refuse services to LGBTQ+ individuals, especially with the Trump administration condoning discriminatory practices through its support of religious freedom. These protections could be guaranteed with the passing of the Equality Act, which is currently sitting in the Senate waiting for a vote.
This attack on protections for LGBTQ individuals in the United States follows a long history of discrimination found within the American healthcare system. LGBTQ individuals have overcome medical discrimination of the past including the opinion of homosexuality as a mental disorder and the neglect from many institutions during the AIDS crisis. Within this timeline, additionally, the transgender community has faced neglect such as the continued diagnosis of gender dysphoria as a mental illness.
Though LGBTQ individuals in Colorado can expect state provisions to protect them with the changes in Section 1557, many LGBTQ people in the United States will see an immediate impact on their access to healthcare. It is imperative that the entirety of the LGBTQ community voice concern to the HHS in order to protect the provision on sex to include gender identity and termination of pregnancy.
The HHS is taking comments from the public through August 13; please click here to voice your concern and protect the rights for all LGBTQ individuals in healthcare.