Affordable Care Act and Nondiscrimination

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August 7, 2012

This past month, the U.S. Department of Health and Human Services (HHS) issued a most welcome clarification regarding the Affordable Care Act. Specifically, in a letter dated July 12, the DHHS Office of Civil Rights confirmed that Section 1557’s sex discrimination prohibition “extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity … [and] also prohibits sexual harassment and discrimination regardless of actual or perceived sexual orientation or gender identity of the individuals involved.”

This is a significant development, and builds upon a series of recent rulings that have explicitly extended sex discrimination prohibitions to include discrimination based on gender identity or expression. In recent years, the Equal Employment Opportunity Commission (EEOC) and the U.S. Departments of Education and Housing and Urban Development (HUD) have all issued rulings and guidance clarifying that discrimination against LGBT persons because of their gender identity or nonconformity with sex stereotypes is sex discrimination.

The HHS clarification came in response to a letter submitted in June signed by Lambda Legal and the New Beginning Initiative coalition organizations. It confirms what many of us felt at the time the Affordable Care Act was enacted, that the law’s anti-discrimination provisions created an important new tool to combat anti-LGBT and especially anti-transgender discrimination in health care. Transgender and gender-nonconforming individuals cannot be denied participation in, denied benefits of, or be subjected to discrimination in the provision of health care under any health program or activity that is receiving federal financial assistance from HHS, any program/activity administered by HHS, or any entity established under the ACA. Transgender and gender-nonconforming individuals who suffer discrimination at HHS-funded facilities will be able to file complaints with the HHS Office of Civil Rights (OCR), and OCR will investigate such complaints as sex discrimination.

It is hard to overstate the importance of this guidance. We know from our own surveys and those of our allies that all too often trans people and gender-nonconforming people are denied health care services or mistreated by health care providers. HHS has now stated clearly that such abuses are illegal, and announced its intention to investigate and prosecute such abuses fully. It is a welcome clarification.

If you have experienced health care discrimination, please contact Lambda Legal’s Help Desk.