Written by Elizabeth Sepper, JD, associate professor in the School of Law
Six years ago, a little known provision of the Affordable Care Act (ACA)—Section 1557—marked the first time that federal law prohibited sex discrimination in federally funded health programs.
This summer, a new U.S. Department of Health and Human Services (HHS) rule made clear that sex includes gender identity and sex stereotypes related to sexual orientation. The nation’s hospitals, Medicaid plans, and nursing homes act unlawfully when they discriminate against LGBT people.
Now, that rule is under fire. Five states and a large religious healthcare network challenge the requirement that transgender people receive care and insurance without discrimination. The suit is the latest salvo in conservatives’ legal battle against transgender rights, until now limited to schools and bathroom access.
The lawsuit raises two key questions:
- What does it mean to discriminate based on sex?
- Are religiously affiliated institutions allowed to engage in sex discrimination?
At stake is access to gender-transition procedures and, more broadly, the ability of people to access health care and insurance equally regardless of their gender, gender identity, or sexual orientation.
Defining sex discrimination
The Affordable Care Act’s Section 1557 prohibits discrimination on “the ground prohibited under” four existing civil rights statutes—including Title IX of the Education Amendments of 1972, which outlaws discrimination on the ground of sex in schools. So what does “sex” mean as used in the statute?
Conservative groups argue that “sex” can only be biological sex at birth. So, they say, federally funded health programs are entitled to bar transgender men from using a men’s restroom. Providers may address a patient born biologically female as “she” even if “he” reflects his gender identity. They may refuse him care without legal recourse. Insurers and employers do no wrong in excluding gender transition services from insurance plans.
HHS took a different view. The agency determined that “sex” is not limited to a binary between biological male and female. Instead, sex stereotyping, gender expression, and gender identity all fall within 1557’s prohibition. And, HHS said, “sex stereotypes can include the expectation that individuals consistently identify with only one of two genders (male or female), and that they act in conformity with the gender-related expressions stereotypically associated with that gender.”
With this interpretation of the statute, healthcare providers must treat transgender patients equally and without harassment. Sex-segregated facilities—like bathrooms—have to be available to people consistent with their gender identity. An insurance plan that automatically excludes gender transition services “is unlawful on its face,” denying care that only transgender individuals need. So, if a plan pays for breast reconstruction for breast cancer patients, it also may have to do so for gender dysphoria patients.
While the status of gender identity discrimination as sex discrimination remains fraught, it increasingly is part of modern legal standards. Courts of appeals across the country have concluded that discrimination against transgender individuals constitutes discrimination “on the basis of sex.” Four years ago, HHS had already recognized gender identity as a prohibited ground of discrimination under Section 1557. Last year, a federal judge similarly allowed to proceed the Section 1557 claims of a trans patient, Jakob Rumble that hospital nurses and physicians had physically and verbally abused him because of his gender identity.
It’s also clear that discriminating based on “sex” means more than sorting people into two sexes determined at birth.
As a matter of biology, the binary “sex” of the conservative world view denies the spectrum of chromosomal and hormonal sex differences and the existence of people born intersex. As a matter of legal interpretation, for decades courts have recognized that “sex” also encompasses gender and sex stereotyping. Regulations enforcing Title IX—the statute to which the ACA refers—don’t only refer to biological sex, but instead bar decision making based on sex stereotypes, pregnancy, and childbirth among other things. Institutions discriminate when they refuse to promote women who dress in “masculine” clothing or don’t wear make-up. They act unlawfully when they are hostile toward men who act flamboyantly or serve as caregivers (a traditionally female role). If “sex” were limited to a binary biological category, it would mean forfeiting the ACA’s protections against sex discrimination not only for transgender people but also for these pregnant, gay, and gender-nonconforming individuals.
Litigation over religious exemptions
Franciscan Healthcare—one of the plaintiffs in the new lawsuit—presents a separate legal question: If the ACA prohibits gender identity discrimination, can religiously affiliated organizations nonetheless discriminate?
The nondiscrimination rule and the ACA’s text include no get-out-jail-free card for religious hospitals, insurers, or providers. But courts may grant exemptions on a case-by-case basis under the Religious Freedom Restoration Act. Franciscan seeks to exclude gender transition care from its employees’ health insurance and to deny patients such care. It hopes that the Supreme Court’s decision in Burwell v. Hobby Lobby, which granted a religious accommodation to employers from duties to cover contraception, bodes well for its case.
It’s up in the air how this will turn out in the courts. The Hobby Lobby Court did grant a religious exemption specific to women’s contraceptive care—a close parallel to transgender individuals’ transition care. But the government had already accommodated religious employers from the contraceptive mandate in a way that the Court thought could be extended to other employers without affecting employees. No such model exists to ensure gender identity equality and access to coverage and care for transition-related needs. The Supreme Court also noted that RFRA is not a shield that permits discrimination “cloaked as religious practice to escape legal sanction.1” Courts addressing RFRA defenses to 1557 may agree.
The outcome matters beyond the specifics of Franciscan Healthcare. Religiously affiliated healthcare providers, insurers, and research facilities are myriad. Religious entities have routinely been bound to comply with federal law due to their receipt of healthcare dollars. For example, the Medicare and Medicaid Conditions of Participation require healthcare providers to respect visitation rights for same-sex families and to provide patients with informed consent (even if delivery of information relates to religiously restricted end-of-life or reproductive care options). Religious exemptions could retrench on nondiscrimination and other health protections.
The impact on transgender health-care disparities
As the Affordable Care Act’s civil rights provision, Section 1557 stands to change the reality of persistent and systemic discrimination against transgender people in the health system. Transgender people encounter ridicule, refusals of treatment, and hostility with fatal and near-fatal consequences.2 Insurance plans regularly include a “transgender exclusion” for any transition-related care.
Negative and discriminatory experiences with the healthcare system can in turn fuel avoidance of healthcare, resulting in under-diagnosis and under-treatment.
For more than six years, people have had its protection. Transgender people have filed complaints against sex discrimination with HHS and in the courts. Healthcare has begun to become more integrated and nondiscriminatory on the basis of sex. If the new attack on transgender rights succeeds on religious liberty or broader grounds, it will send a message of endorsement of discrimination to the detriment of disfavored minority groups and of society at large.