By Cathy Zhang
Last week, on the heels of attacks on trans youth and their families in Texas, the Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) issued a notice and guidance expressing support for transgender and gender nonconforming youth and highlighting the civil rights and privacy laws surrounding gender affirming care.
OCR all but names the Texas attacks as unlawful under Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of race, color, national origin, sex, age, and disability by federally funded health programs or activities. It notes that for federally funded entities, restricting medically necessary care on the basis of gender — such as doctors reporting parents of patients to state authorities — “likely violates Section 1557.”
The guidance directs those who have been discriminated against on the basis of gender identity or disability in seeking access to gender-affirming health care to file a complaint through OCR. HHS can go further, however, by formally acknowledging that individuals have a legal right to enforce Section 1557 when they have experienced prohibited health care discrimination.
Patients Need a Private Right of Action
Private enforcement of antidiscrimination law has long functioned as a key complement to public enforcement by agencies, helping to vindicate rights and deter violations before they occur.
The OCR complaint process that the guidance document highlights is a form of enforcement that operates through the agency. Because OCR receives tens of thousands of complaints each year and has a significant backlog, however, there is a high degree of uncertainty that such complaints will be resolved in a timely manner. Having a private right of action gives victims of discrimination the ability to seek recourse through a court of law.
A survey conducted in 2020 found that 47% of transgender individuals, including 68% of transgender people of color, reported experiencing mistreatment at the hands of a health care provider in the year prior, and 28% reported postponing or not receiving necessary medical care due to fear of experiencing discrimination. As state officials encourage health workers to engage in the exact forms of unlawful discrimination against trans patients proscribed by the HHS, the likelihood of Section 1557 violations only goes up.
Acknowledging a private right of action would help not only trans patients, but also anyone who could face discrimination on the basis of race, color, national origin, sex, age, and disability by signaling to health entities that these rights will be fully enforced.
Legal Basis for Section 1557’s Private Right of Action
The Affordable Care Act creates a legal basis for a private right of action, though this component of Section 1557 enforcement was deliberately obscured by the Trump administration.
Under 42 U.S.C. § 18116(a), the enforcement mechanisms of four other civil rights laws — Title VI, Title IX, Section 794 of Title 29, and the Age Discrimination Act — are available for violations of Section 1557. Each of these four civil rights laws provides a private right of action, which empowers individuals to sue to vindicate their rights.
When HHS first issued a final rule interpreting Section 1557 in 2016, it affirmed that a private right of action and damages were available for violations to the same extent that those remedies were available under the four civil rights laws. The 2016 rule also specified that prohibited discrimination “on the basis of sex” included discrimination on the basis of gender identity.
Then, under the Trump administration in 2020, HHS issued a new rule that, in addition to rolling back the general scope of Section 1557 protections, removed the language around private rights of action — as well as the language defining “on the basis of sex” to encompass gender identity — from the 2016 rule. In its place, HHS explicitly declined to take a position on whether a private right of action exists, despite the fact that the legal basis for the right did not change. The silence of the 2020 rule does not eliminate the existence of the right, and district courts across the country have already ruled that Section 1557 provides a private right of action.
HHS has since issued a notification stating that it will interpret and enforce Section 1557’s prohibition of discrimination on the basis of sex to include gender identity, in light of the Supreme Court’s 2020 Bostock ruling. It has not, however, clarified that Section 1557 still has a private right of action.
Although HHS missed an opportunity to do this in its latest notice and guidance, it can reaffirm a private right of action in its upcoming proposed rule on Section 1557, which is expected to be released this April. In addition to resuming this stance in the proposed rule, the agency can issue further guidance acknowledging a private right of action, independent of the rule. Notice and comment rules can take years to finalize, but when it comes to health care discrimination, the rights and lives at stake cannot wait.