By Valarie K. Blake
The Biden administration and all three branches of government are poised to finally deliver a sex-based civil rights movement in health care that generations have waited for.
Sex discrimination is prevalent in health care, but especially so for LGBTQ people. Combine this with other forms of discrimination that LGBTQ people experience, and the result is a population that suffers from serious health disparities, including heightened risks of mental health conditions, substance use disorders, and suicide.
A much needed ban on sex discrimination in health care finally passed in 2010, as part of the Affordable Care Act (ACA). Section 1557 of the ACA prohibits health care entities that receive federal money from discriminating on the basis of sex, along with race, age, and disability. Specifically, Section 1557 bans sex discrimination in health care by way of extending Title IX, which previously applied to educational entities only. Section 1557 reaches most hospitals, providers, and insurers. Sex equality in health was a long time coming. Similar bans on discrimination by recipients of federal money had passed decades earlier: race discrimination in 1964, disability discrimination in 1973, and age discrimination in 1975.
Despite its historic nature, Section 1557 has yet to deliver on its promise, owing to delays and volatility in rulemaking and near-constant litigation. The statute was barebones, requiring interpretation, but the Obama administration only promulgated a rule and began full enforcement six years after the passage of the ACA. The Obama rule broadly banned gender identity and sexual orientation discrimination, but the part of the rule banning gender identity discrimination was judicially stayed only months later in Franciscan Alliance v. Burwell.
When President Donald Trump was sworn into office in January of 2017, his administration immediately began to unwind the Obama rule, replacing it in June 2020 with a rule that eliminated protections for LGBTQ people. The Trump administration also promulgated a conscience rule that would have exacerbated sex discrimination in health care, though this was later struck down in the courts.
Now, the Biden administration has an opportunity to promote sex-based civil rights in health care through Section 1557. The judicial, legislative, and executive branches all will be instrumental in realizing this aim.
The Judicial Branch
The Obama administration faced substantial legal challenges over whether broad LGBTQ protections were a permissible read of Section 1557. As I’ve written elsewhere, the Biden administration can rest assured that an expansive reading of Section 1557 will withstand legal scrutiny after Justice Gorsuch’s opinion in Bostock v. Clayton County. In that opinion, Gorsuch held that LGBTQ discrimination necessarily involves discrimination on the basis of sex for purposes of Title VII employment discrimination.
Though Bostock is limited to Title VII, the logic and precedent inform Title IX and Section 1557. According to Justice Gorsuch, discrimination based on gender identity is discrimination based on sex, in how that person’s gender identity varies from the sex assigned at birth. Discrimination based on sexual orientation is discrimination based on sex, in that the person is attracted to members of the same rather than opposite sex.
The Legislative Branch
New rulemaking needs to be coupled with strong enforcement of the law. HHS Office for Civil Rights (OCR), the agency tasked with enforcing Section 1557, is also tasked with enforcing HIPAA, the health privacy rule. HIPAA complaints numbers in the tens of thousands annually, consuming large portions of the agency’s enforcement capabilities. With Democratic majorities in both chambers, Congress can earmark greater funds to OCR through the budget reconciliation process to enforce OCR’s civil rights mission. Senator Bernie Sanders, a longstanding supporter of health reform, now serves as the Senate Budget Committee Chair, while the House Budget Committee Chair John Yarmuth is also on record with supporting LGBTQ equality. An increased budget is an opportunity for the agency to prioritize civil rights in the way it was originally designed.
The Executive Branch
President Biden’s Health and Human Services (HHS) Secretary Xavier Becerra, a firm defender of a broad reading of Section 1557, was confirmed on March 18, 2021. On May 10, 2021, Secretary Becerra published a notification of interpretation and enforcement stating that HHS would define sex discrimination for purposes of Section 1557 to encompass sexual orientation and gender identity discrimination, based on the reasoning in Bostock. The notification makes clear that OCR will use this broad definition in processing civil rights complaints and conducting investigations moving forward. We can anticipate notice and comment rulemaking will follow, restoring and expanding on the Obama era rule. This may mean clarifying what the new administration defines as “sex,” restoring private rights of action for individuals to sue for injuries from sex discrimination, and again requiring covered entities to widely publish notices to patients of their rights, increasing the likelihood of Section 1557 complaints.
This is an important first step for the agency. But OCR needs to follow through by dedicating more money and manpower to the mission of enforcing Section 1557 antidiscrimination protections for LGBTQ people.
The era when Medicare and Medicaid first passed, right on the heels of the Civil Rights Act of 1964, is instructive for HHS and HHS OCR. Suddenly, hospitals around the country were in violation of civil rights laws if they accepted Medicare funds and did not racially desegregate. So began a massive effort by the Johnson administration to force hospitals to integrate their wards. Seven hundred and fifty employees were borrowed from other government agencies to enforce the law. Government worked visited hospitals to ensure change was being made, and built contacts with advocates and workers there to monitor progress when government workers left. To achieve true health equality for LGBTQ people, similar dramatic measures are necessary.
OCR can be more aggressive in pursuing Section 1557 complaints. While the Biden administration is likely to permit private rights of action in its rulemaking, the matter has been challenged in the courts. It is unlikely that Congress will clarify the statute, so the only guarantee for enforced civil rights is through the agency. OCR may also wield its investigative authority to audit aggressively health care workers, insurers, and hospitals for their compliance. This is especially important in health insurance, where allegations of discrimination continue.
Likewise, the Biden administration can publicly declare LGBTQ equality in health care a priority, raising the public’s awareness of their legal rights; President Biden has begun this important work by acknowledging the importance of LGBTQ equality in an executive order.
Sex protections were late in coming and have stalled in the decade since the passage of the ACA. President Biden has entered office with a climate finally ripe to deliver fully on Section 1557’s promise.
Valarie K. Blake, JD, MA is a professor of law at West Virginia University College of Law.