WASHINGTON, DC - OCT. 8, 2019: Rally for LGBTQ rights outside Supreme Court as Justices hear oral arguments in three cases dealing with discrimination in the workplace because of sexual orientation.

What the Supreme Court’s LGBT Discrimination Decision Means for Health Care

By Elizabeth Sepper

On Monday, the Supreme Court held in Bostock v. Clayton County that LGBT discrimination is sex discrimination under Title VII, the federal workplace protection of the Civil Rights Act of 1964.

The ruling comes in stark contrast to a recent action taken by the Department of Health and Human Services (HHS). Just last Friday, HHS issued a new rule interpreting Section 1557 of the Affordable Care Act so as to strip LGBT people of rights to nondiscrimination.

Since it was enacted in 2010, Section 1557 of the Affordable Care Act has prohibited federally funded health programs, including insurers and health care providers, from discriminating based on the sex of patients. In 2016, the Obama Administration issued a rule making clear that transgender people and, to a lesser extent, LGB people were protected.

But under the Agency’s new interpretation, discrimination based on gender identity or sexual orientation is not sex discrimination.

In light of Monday’s Supreme Court decision, many are now wondering whether—and how—the new HHS rule interpreting Section 1557 of the ACA might be affected.

The Court’s interpretation of federal employment discrimination law does not directly impact the new rule, which interprets a different statute. But the Supreme Court made clear that discrimination against LGBT people is sex discrimination. The rule appears dead in the water.

The connection between health care discrimination and the Court’s decision in Bostock v. Clayton County is relatively straightforward. Like Section 1557, Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sex.

The initial question before the Supreme Court was: what does “sex” mean? Conservative Justice Neil Gorsuch who wrote for the Court focused his analysis on the term’s meaning in 1964 when the Civil Rights Act was passed. He took “sex” to refer only to “biological distinctions between male and female.”

In its rule interpreting Section 1557, HHS also adopted this narrow definition of sex. In this sense, the Court and the agency agree.

But from there, the Supreme Court parted ways with HHS. Even under this narrow definition of sex, the Court concluded that an employer who discriminates based on sexual orientation or gender identity necessarily engages in illegal sex discrimination.

When a business chooses to fire someone because they are transgender or gay, the decision is “because of” the individual’s sex. When a company refuses to hire a woman for dating women, even though it employs many men who do the same, it’s because of sex. And when a boss fires a worker for wearing a skirt, because she was identified as male at birth, he acts based on the worker’s sex. Just try to explain those decisions without considering the individual’s sex; “It can’t be done,” the Court said.

Bostock’s logic easily transfers to health care. Consider a hospital that misgenders transgender patients—a practice HHS blessed last Friday. Employees would use she/her pronouns for patient who was identified as female at birth, but will not for an otherwise identical patient who was identified as male at birth. Like the employer, the hospital inevitably discriminates due to sex. Or take a nurse who gladly admits a man to see his wife, but refuses to do the same for a woman who wants to visit her wife. To make these decisions without taking sex into account simply “can’t be done.”

After the Supreme Court’s decision, HHS will be hard-pressed to defend its interpretation of “sex discrimination” to exclude LGBT people from Section 1557’s protections. The rule surely will soon see a challenge seeking a nationwide injunction and eventual invalidation.

The rule contains hints that HHS will continue to fight LGBT rights. Commentators had asked HHS to wait for the Supreme Court to rule. HHS responded the that the decision “would likely have ramifications” for its rule. But it suggested that regardless of what sex discrimination means in the workplace, “[t]he binary biological character of sex (which is ultimately grounded in genetics) takes on special importance in the health context.” In other words, health care is different.

The force of the Supreme Court’s decision this week indicates otherwise. The Court was quite clear: “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” HHS is not free to categorically exclude LGBT discrimination from the Affordable Care Act’s ban on sex discrimination. Health providers, insurers, and programs should act accordingly.

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