The ACA’s Nondiscrimination Rule: Kudos and Critiques

By Elizabeth Sepper

More than five years ago, Section 1557—a little known provision in the Affordable Care Act—promised to protect individuals from race, sex, age, and disability discrimination in health programs and activities that receive federal financial assistance. But until this fall, the Department of Health and Human Services (HHS) hadn’t offered any interpretation of what the nondiscrimination provision requires. Today, the comment period for the proposed rule closes, and HHS will set to work finalizing the Nondiscrimination Rule. Together with professors Jessica Roberts and Jessica Clarke and Yale Law students Elizabeth Dervan and Elizabeth Deutsch, I drafted lengthy comments on the proposed rule.  In a series of blog posts this week, we’ll explain what HHS got right, where its interpretation went wrong, and how it can provide clarity to healthcare programs and the public.

The ACA broke new ground in prohibiting sex discrimination in healthcare for the first time. Women and LGBT people face persistent and systemic discrimination at the hands of insurers, hospitals, and doctors. Women’s pain goes undertreated, and their heart attacks undiagnosed. Due in part to their capacity to become pregnant, women have largely been excluded from studies. More than half of LGBT people report facing discrimination in healthcare settings. Transgender men and women have encountered ridicule, refusals of treatment, and hostility in emergencies with fatal and near-fatal consequences.

The Affordable Care Act aims to change this. The Nondiscrimination Rule presents a historic opportunity for HHS to interpret sex discrimination broadly. In its proposed rule, HHS seems poised to take advantage of this opportunity by reaching pregnancy, sex stereotyping, and gender identity discrimination. To meet HHS’s goal of ensuring the most robust set of protections in current law, the final rule should also make clear that sexual orientation discrimination is sex discrimination.

Safeguarding Reproductive Care

Sex discrimination under Section 1557 includes women’s reproductive choices. The statutory text—which HHS is now interpreting—points to Title IX of the Education Amendments of 1972. Title IX disallows discrimination on the basis of pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery. It also bars discrimination based on sex stereotypes—including stereotypical notions of parental, family, marital, and wage earner status. As the statute requires, the new Nondiscrimination Rule incorporates both reproductive capacity and sex stereotyping in its definition of sex discrimination.

As a result, the Rule offers important antidiscrimination protections for reproductive and sexual choices. Women in particular have faced persistent discrimination in healthcare and insurance access related to stereotypes around their parental roles, family relationships, and marital and wage earner status. Women of reproductive age paid higher premiums for insurance. Providers have obstructed unmarried women’s access to contraceptives based on stereotyping about their sexuality. Women without children have experienced difficulty obtaining tubal ligations, due to stereotypes about their intended parental status. The Nondiscrimination Rule should bring these practices to an end.

Prohibiting Gender Identity Discrimination
The proposed Nondiscrimination Rule also rightly defines sex discrimination to include gender identity discrimination. Transgender people endure hostility, stigma, and misunderstanding in health programs and activities—ranging from coverage in insurance plans to treatment by individual doctors and nurses. Negative and discriminatory experiences with the healthcare system can in turn fuel avoidance of healthcare, resulting in under-diagnosis and under-treatment. Gender identity constitutes part of modern legal standards governing sex discrimination, and HHS has already recognized gender identity as a prohibited ground of discrimination under 1557. This year, a federal judge similarly took sex discrimination to reach gender identity discrimination when he allowed to proceed the Section 1557 claims of a trans patient, Jakob Rumble, who allegedly was verbally and physically abused by hospital nurses and physicians because of his gender identity.

The Need for a Clear Bar on Sexual Orientation Discrimination
So far, the proposed Rule doesn’t explicitly list sexual orientation discrimination. But HHS has said it wants to adopt the best understanding of nondiscrimination law and is considering including sexual orientation within the definition of sex discrimination. The final Rule should explicitly provide protection from discrimination based on sexual orientation.

Legal scholars and advocates have long argued that discrimination on the basis of sexual orientation constitutes sex discrimination. Some federal agencies also have embraced this understanding of sex discrimination. For example, the Equal Employment Opportunity Commission (EEOC) recently made clear that, in its view, “sexual orientation is inherently a ‘sex-based consideration” because when an employer takes a person’s sexual orientation into account the employer necessarily considers a person’s sex. In recent years, some federal courts have recognized that prohibitions on sex stereotyping and gender identity may offer protection for LGB people with regard to employment and marriage equality.

HHS itself has already prohibited discrimination on the basis of sexual orientation in rules governing the insurance exchanges and qualified health plans. The Nondiscrimination Rule similarly should make clear that sexual orientation discrimination amounts to sex discrimination.

HHS gets a lot right in the proposed rule and deserves kudos. By understanding sex discrimination to reach pregnancy and reproductive norms, sex stereotyping, and gender identity, the Nondiscrimination Rule has the potential to revolutionize healthcare for women and sexual minorities. The final Rule should explicitly include sexual orientation discrimination to reflect the most robust contemporary understanding of antidiscrimination law. In our next two posts, we’ll look at where HHS goes wrong in its statutory interpretation and how it can do better in fashioning a remedy for Section 1557’s rights.

Find our full comments here.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.