Post submitted by HRC Legal Coordinator Kristen Hildreth
Section 1557 of the Affordable Care Act codified existing informal guidance from HHS interpreting this new provision to include protections from discrimination on the basis of gender identity and sex stereotyping. The Department of Health and Human Service’s definitions of gender identity and sex stereotypes recognize that protections against sex discrimination should extend to not only Lesbian, Gay and Bisexual people, but to those of all gender identities – including Transgender individuals and people of non-binary genders.
Section 1557 prohibits most insurers from discriminating on the basis of sex - including gender identity – when providing health coverage. Discrimination on the basis of gender identity includes:
· Blanket exclusions on any transition-related healthcare services;
· The denial or limitation of coverage for services used for gender transition when those services would normally be covered when treating a non-transition related health condition; and
· The refusal to cover treatment that is typically associated with one particular gender, because an individual identifies with another gender or is listed as having another gender in their medical records or on a personal form of identification.
It also requires that providers treat individuals in a manner consistent with their gender identity, including in access to health-care facilities. Wherever people are separated or labeled by gender, people are to be treated according to their self- identified gender. Section 1557 applies to all health programs and activities, any part of which receives any Federal financial assistance.
At this point you’re probably asking yourself, “what does this all mean and how will it play out in real life?”
Let’s assume Joe goes to his physician’s office with a healthcare plan provided through the marketplace. Joe is seeking hormone therapy as he begins his transition. During testing, Joe is initially told by his physician that he must use the restroom associated with his sex assigned at birth. That same physician then tells him that his insurance will not cover this particular type of hormone treatment as his gender on his birth certificate does not align with the gender on his medical records and his treatment plan is typically not associated with that gender. Under Section 1557 regulations Joe’s insurance provider can be found to be discriminating on the basis of sex as can Joe's physician for preventing him from using facilities consistent with his self-identified gender.
Now let’s move to Alyssa – Alyssa calls her health insurance provider and is told that if she seeks any transition- related health care services they will not be covered. Under the Section 1557 regulations, Alyssa’s insurance provider can be found to be discriminating on the basis of gender identity which is a form of sex discrimination.
Finally onto Sue – Sue, who identifies as bisexual, goes to her physician for treatment of a chronic illness and informs them that she has a new partner who is female. Sue’s physician, who was always cordial and receptive, begins to act discourteous and dismissive prior to declining to treat her further. Under the Section 1557 regulations, Sue’s physician can be found to be discriminating based on her stereotypes regarding with whom women should be in relationships which is a type of sex discrimination.
Section 1557 regulations explicitly prohibit discrimination based on gender identity – making it clear that most insurers cannot deny or limit coverage because a treatment is related to an individual’s gender transition. In addition, the regulation prohibits discrimination on the basis of sex stereotyping, which covers discrimination against lesbian, gay, and bisexual people as well as transgender people. If you feel as though you have experienced discrimination in a healthcare setting based on your sexual orientation, gender identity or gender-nonconforming status please visit http://www.hhs.gov/civil-rights/filing-a-complaint/index.html to file a civil rights complaint.
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