Today the Department of Health and Human Services published the final regulation implementing the landmark nondiscrimination provision of the Affordable Care Act, Section 1557, which prohibits discrimination in healthcare on the basis of a number of protected classes, including sex. These regulations codify existing informal guidance from HHS interpreting this provision to include protections from discrimination on the basis of gender identity and sex stereotyping. This interpretation extends real, concrete protections to not only transgender and gender nonconforming people in federal programs, but also to many lesbian, gay and bisexual people who experience discrimination based on sex stereotyping. The regulation also equips people who have experienced discrimination with a mechanism for reporting a claim and seeking justice. This is truly transformational.
HRC applauds HHS for taking this important step towards ending the devastating health disparities facing our community and increasing access to vital services and care. In November, HRC delivered 13,398 public comments from members and supporters urging HHS to provide explicit protections for LGBT people in the final regulations. HHS responded and regulations were issued prohibiting discrimination on the basis of both gender identity and sex stereotyping, which includes sexual orientation discrimination that is based on sex stereotyping. While these are strong, meaningful protections, it is important to note that the absence of explicit protections in the final rule for lesbian, gay, and bisexual people is not fully consistent with legal interpretations by the Equal Employment Opportunity Commission (EEOC) and current legal doctrine concerning sexual orientation discrimination. We are concerned that by not including the term "sexual orientation" in the regulation some LGB people and health care providers and insurance companies will not fully understand the scope of protection.
However, it is important to understand that many lesbian, gay, and bisexual people experiencing discrimination in healthcare are covered under Section 1557's prohibition of sex stereotyping discrimination. Any adverse action based on the belief that women and men dress, act, love, or behave in a certain way is unlawful sex discrimination under this regulation. For example, this means that if a health care provider discriminates against you because you are a man in a relationship with another man and they believe men should only date women you have experienced sex stereotyping discrimination.