Two years ago, the world lost Kyler Prescott. Kyler was a 14 year-old, transgender boy who battled against depression, bullying, and harassment by his peers. A few weeks before he took his own life, Kyler experienced abuse from the very people he turned to for help. While he was seeking treatment for suicidal ideation at Rady Children’s Hospital-San Diego, staffers in their Emergency Care Center and Child and Adolescent Psychiatry Services unit chided Kyler that he was “too pretty to be a boy” and continually addressed him as a girl, despite repeated protestations by Kyler and his mother.
Months after he died, Kyler’s mother, Katharine Prescott, filed a federal lawsuit on behalf of her son, arguing that the abusive treatment he received from hospital staff violated Section 1557, the non-discrimination provision of the Affordable Care Act (ACA). Sec.1557 prohibits discrimination based upon race, ethnicity, national origin, age, disability, and sex in health care programs and by providers receiving federal funding. It is the first-ever federal law to ban sex discrimination in health care.
Prohibiting sex discrimination in health care is a significant step forward in the struggle for equal rights. For example, before the ACA, women were charged more than men for insurance or were denied coverage for necessary services, such as maternity care and contraception. In a recent National Transgender Discrimination Survey, 28 percent of participants postponed medical care due to discrimination.
Last month, a federal district court agreed that the mistreatment Kyler received in the hospital amounted to discrimination because of his gender identity, which is a form of sex discrimination prohibited under Sec. 1557.
The decision in the Prescott case contrasts with a federal court challenge filed last year by several red state attorneys general and several religiously affiliated providers. The Franciscan Alliance case challenges HHS’ Sec. 1557 regulations, which define sex discrimination to include gender identity and termination of pregnancy. A Texas judge issued a nationwide injunction barring HHS from enforcing these regulatory provisions and stayed further court proceedings while HHS “reconsiders” the regulations at issue.
The distinction between Prescott and Franciscan Alliance is an important one. In Franciscan Alliance, the court did not reach a decision on the merits of the case; instead issuing a preliminary injunction because the judge believed the challengers are “likely to succeed.” By contrast, the court in Prescott ruled on the substantive issue and concluded that Sec. 1557 specifically protects against sex discrimination including gender identity. Prescott further noted that its decision was based upon the statutory text of Sec. 1557 and well-established case law that protections because of someone’s sex include someone’s gender identity, and did not rely on the HHS regulations at issue in Franciscan Alliance.
This is an important victory for civil rights, because, although the Trump administration has the authority to amend or revise regulations, it cannot rewrite Sec. 1557 or other federal laws. Attempts to change or eliminate regulations, moreover, must follow the federal Administrative Procedures Act, which requires public notice and a comment period, and must provide a reasoned explanation for the change.
The Trump administration is stepping up efforts to sabotage the ACA by undermining key protections like Sec. 1557, ending payments for cost-sharing reductions to help low income persons access care, and slashing budgets for outreach and advertising for open enrollment. It is critical that advocates mobilize to defend civil rights and full access to health care. The ACA and Sec. 1557 are too important to lose for Kyler and others.
To learn more about Sec. 1557 and NHeLP’s efforts to defend and enforce this key civil rights legislation, check out this media briefing hosted by NHeLP and featuring Mara Youdelman, managing attorney for NHeLP’s D.C. office.