Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, and plus people have historically faced discrimination in health care settings. Their health needs, bodies, relationships, and families are often scrutinized in ways that are stigmatizing and can lead to worse health outcomes. This blog, adapted from our Section 1557 Q&A issue brief, explores some of the ways LGBTQI+ people experience discrimination in health care settings, and provides information on how the Biden administration’s proposed changes to Section 1557 of the Affordable Care Act could help ameliorate those inequities.
The Biden administration’s proposed changes to regulations implementing Section 1557 of the Affordable Care Act (2022 Proposed Rule) reinstate nondiscrimination protections for LGBTQI+ individuals that were removed by the Trump administration (2020 Final Regulations) and expand on the protections that were enumerated under the Obama administration (2016 Final Regulations).
The 2022 Proposed Rule clarifies that discrimination on the basis of sex includes discrimination based on sex stereotypes, sexual orientation, gender identity, and sex characteristics, including intersex traits. The preamble to the 2022 Proposed Rule notes that LGBTQI+ people “face pervasive health disparities and barriers in accessing needed health care.” The 2022 Proposed Rule recognizes that Section 1557’s prohibition of discrimination on the basis of sex in health care programs and activities must extend to protect people against discrimination on the basis of sexual orientation and gender identity.
Sex Stereotypes
The 2022 Proposed Rule provides protection from discrimination beased on sex stereotypes. This provision is designed to provide protection from discrimination based on sex stereotypes, which are assumptions about how an individual should look, act, or present themselves that are based on their sex. Thus, for example, if a health clinic refused to provide care to a Genderqueer Butch Lesbian because her gender presentation was not stereotypically feminine, that could constitute sex discrimination.
Sexual Orientation
Similarly, the Proposed Rule prohibits discrimination against Lesbian, Gay, Bisexual, and Queer people based on their sexual orientation. Thus, for example, a hospital’s policy to only place Gay men in single rooms, when it places heterosexual men in shared rooms, could constitute sex discrimination.
Gender Identity
The Proposed Rule also protects individuals from discrimination based on gender identity. Thus, for example, if a pharmacist asked a Non-Binary person questions about their genitals before administering a vaccination, when the pharmacist did not ask those questions of cisgender people, that could constitute discrimination.
Sex Characteristics
Finally, the Proposed Rule protects Intersex, Transgender, Non-Binary, and Gender Diverse individuals based on variations in sex characteristics—genitals, gonads, chromosomes, hormonal factors, or other physical sex characteristics.These protections are especially important for Intersex people who have sex characteristics that do not fit typical binary definitions of male or female bodies. Thus, for example, if a clinician refused to prescribe medically necessary hormone therapy to an Intersex person, but prescribes hormone therapy to non-Intersex patients, that refusal could constitute discrimination.
The rule would also protect people from discrimination based on variations in and/or perceived sex characteristics that do not fit typical binary definitions of male or female bodies. For example, if a clinician refused to provide a prostate exam to a Transgender woman because she has breasts and a vulva, that could be discriminatory.
The 2022 Proposed Rule also has several other provisions specifically aimed at protecting LGBTQI+ people, especially Transgender, Gender Diverse, and Intersex people. It explicitly requires equal access to health programs and activities without discrimination based on sex. These provisions provide specific protections for Intersex, Transgender, and other Gender Diverse individuals to access medically necessary care by implementing specific protections to ensure access to necessary gender-affirming and transition-related care, and protections to ensure access to so-called “sex specific” care (such as mammograms and prostate exams) regardless of someone’s sex assigned at birth, recorded gender, or gender identity.
The Proposed Rule also explicitly prohibits categorical coverage exclusions of transition-related and gender-affirming services. In addition, the rule prohibits sex discrimination based on “marital, parental, or family status.” This provision provides explicit protections for LGBTQI+ people in non-traditional familial and romantic relationships. For example, a hospital refusing to allow a pregnant woman’s female partner to accompany them to prenatal visits, while allowing the male partners of other pregnant women to attend prenatal visits, could constitute sex discrimination.
The Biden Administration has proposed changes that would strengthen Sec. 1557 protections and is accepting public comments through October 3, 2022.
Here are some additional resources that might be useful:
- Questions and Answers on the 2022 Proposed Rule Addressing Nondiscrimination Protections under the ACA’s Section 1557, our overview of the ways Section 1557 impacts various individuals, especially those who live at the intersection of multiple identities.
- Blog: What is Section 1557? An Introduction
- Blog: How the Proposed Changes to Section 1557 Affect Individuals with Limited English proficiency (LEP)
- Blog: How Changes to Section 1557 will Improve Health Care for LGBTQI+ People
- [Coming Soon] Blog: How Section 1557 Impacts People who are Pregnant or Capable of Pregnancy
- [Coming Soon] Blog: How Changes to Section 1557 will Impact Health Care for People with Disabilities
- [Coming Soon] Blog: How the Proposed Rule addresses discrimination based on sex
