Sex discrimination is deeply entrenched in our health care system. In recent years, it has manifested as obstetric violence, sexual harassment by health care providers, and sterilization without lawful consent. When sex discrimination intersects with other systems of oppression, such as White supremacy and transphobia, it compounds and shows up as higher rates of medically unnecessary cesarean sections among Black and Asian pregnant people, outright refusals of care to transgender individuals, and our national epidemic of Black and Indigenous maternal mortality—the worst among high-income countries.
Congress designed Section 1557 of the Patient Protection and Affordable Care Act (ACA) to help end these shameful life-and-death harms.
Congress designed Section 1557 of the Patient Protection and Affordable Care Act (ACA) to help end these shameful life-and-death harms. In addition to creating vital protections against health care discrimination on the basis of race, color, national origin, disability, and limited English proficiency, Section 1557 provided the first broad federal protection against health care discrimination on the basis of sex. For example, Section 1557 protects patients against direct sex discrimination, such as higher premiums on the basis of sex and refusals of coverage for essential care such as contraceptives. It prohibits discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery; childbirth or related medical conditions; sex stereotyping; and gender identity. The law extended its protections to discrimination by most health programs and activities, including virtually all public (and private health programs and plans, health care providers, and agencies administering health programs. The law also makes it easier for people who experience compounded discrimination at the intersection of multiple identities to have the same rights and be able to file complaints in one place.
Ten years later, we are living through an ominous, deadly, and unrelenting pandemic. As the coronavirus surges throughout the U.S., it is exposing and deepening obstacles to reproductive and sexual health care and corresponding harms to Black, Indigenous, and People of Color (BIPOC), people with disabilities, LGBTQ individuals, and women, intensifying the urgent need for Section 1557’s protections.
Fighting fire with lighter fluid, on June 12, 2020, the Trump administration finalized a rule that significantly weakens key regulations implementing Section 1557. Among other rollbacks, the rule eliminates pregnancy status and gender identity from the prior rule’s definition of sex discrimination. In addition, the final rule attempts to expand and create new religious exemptions from Section 1557’s protections. The Trump administration’s rule privileges a narrow set of religious beliefs over the health and wellbeing of living, breathing people. It will create confusion about the scope of protections against sex discrimination under federal law. It will also stigmatize services, discourage people from seeking essential reproductive health care, and embolden health plans, entities, and providers to deny that care. The Trump administration’s choice to finalize this rule now—as BIPOC across the U.S. fight for survival amid the pandemics of COVID-19, police violence, and Black and Indigenous maternal mortality—is a condonation of all the above.
Although the rule is slated to go into effect August 18, 2020, advocates have filed multiple lawsuits challenging its lawfulness. Moreover, Section 1557 will remain the law of the land: the Trump administration cannot eliminate Section 1557 through regulatory action. Individuals who suffer discrimination may file complaints with their state insurance commission, state Medicaid agency, the U.S. Department of Health and Human Services’ Office for Civil Rights, or in the courts. For more information about these options, they should contact an attorney, such as a local legal aid provider, for assistance.
A minority of states have standalone legislation prohibiting discrimination on the basis of sex. As national legal battles over the future of Section 1557 proceed, states can enact legislation that prohibits discrimination on the same grounds protected under Section 1557 in any health program or activity operated, administered, or funded by or within the state.
Our fight to protect Section 1557 is far from over. Together, we can safeguard, strengthen, and enforce protections that help heal our unjust health care system.
For more information on the final rule, check out NHeLP’s overview—HHS Eliminates or Weakens Regulatory Protections Against Discrimination in Health Care.
And see the rest of our blogs in our series on Section 1557:
- Como se dice “discrimination” en Espanol?
- Trump Administration Rolls Back Important Health Care Protection Roll Back for People with Disabilities and Chronic Health Conditions
- Fighting Fire with Lighter Fluid: Trump Administration Rule Incites Health Care Discrimination and Jeopardizes Reproductive Health
- Health Insurers Should Be Wary of Trump Regulatory Rollback
