Preventing Discrimination Against LGBTQ Individuals in Health Services

Section 1557 of the Affordable Care Act (ACA) prohibits discrimination on the basis of race, color, national origin, sex, age, or disability to individuals participating in any health program or activity that receives funding from the Department of Health and Human Services (HHS). HHS issued a rule in 2016 implementing the provision. The 2016 Rule provided protections from discrimination on the basis of gender identity and sex stereotyping, consistent with widely accepted precedent concerning what constitutes discrimination “on the basis of sex.” The ban included discrimination on the basis of sex stereotyping, dress, hairstyle, stereotypical notions of masculinity and femininity, and body characteristics. This interpretation was intended to protect lesbian, gay, bisexual, and transgender (LGBT) individuals fully from all forms of discrimination in the health care setting.

In June of 2020, HHS issued a new rule reversing the broad protections in the 2016 Rule, limiting discrimination on the basis of “sex” to “biological binary of male and female that human beings share with other mammals.” The new interpretation would have allowed discrimination against gay and transgender individuals in health care. For example, a health provider would be allowed to refuse treatment for a man with ovarian cancer.

Numerous lawsuits were filed to invalidate the 2020 Rule; ACS CAN led 15 patient groups in an amicus curiae (or “friend of the court”) brief filed in one of the lawsuits, State of New York v. US Department of Health and Human Services. The brief provided the court with data showing that nondiscrimination is critical for LGBTQ individuals, who suffer a disproportionate cancer burden. The LGBTQ community has distinctive risk factors, and LGTBQ individuals face additional barriers in accessing health care. For example, gay and bisexual men have a higher risk for anal cancer (particularly if they are HIV+) and lesbian and bisexual women may have an increased risk of breast, cervical, and ovarian cancers.

Courts put the 2020 rule on hold so it never took effect. The new administration took office and in March of 2022, HHS issued a Notice and Guidance on Gender Affirming Care that “attempts to restrict gender-reassignment surgeries are dangerous and covered entities restricting an individual’s ability to receive gender-affirming care likely violate Section 1557.” In it, HHS used a seminal employment law decision by the US Supreme Court to underpin its broad definition of discrimination “on the basis of sex.” In Bostock v Clayton County, the Supreme Court found that the Civil Rights Act of 1964 protection against discrimination on the basis of sex includes discrimination on the basis of sexual orientation or transgender status. Thus, HHS reasoned that a similar definition should apply in the provision of health care services. 

The Guidance was challenged in the case of Neese v. Becerra in which a group of physicians in Texas claim discrimination should only be found if a patient can prove the provider treated them differently than an identically situated person of the opposite sex. Notably, one of the physicians cited the example of having to work with a transgender woman whom he diagnosed with prostate cancer who denied she had a prostate. In 2022, US District Court Judge Matthew Kacsmaryk ruled in favor of the plaintiffs, finding that Bostock does not apply in the provision of health care services, but rather a narrower definition from Title IX should be used. Under his analysis, 1557 does not prevent discrimination on the basis of sexual orientation and gender identity, but rather only protects individuals on the basis of their biological sex. The sweeping decision, if allowed to stand, would greatly reduce the rights of LGBTQ+ individuals in the provision of health care services.  ACS CAN led an amicus brief in Neese v. Becerra advocating for broad protections for LGBTQ individuals against discrimination. The case is still pending at the Fifth Circuit.

HHS later finalized its broad definition of the protections in a rule issued in May of 2024 which was scheduled to go into effect July 5, 2024. ACS CAN had commented favorably on these protections during the rulemaking process, applauding HHS for promulgating regulations it believes will help to reduce discrimination in health care.

Three different court decisions issued on July 3, 2024 are keeping this aspect of the new rule from going into effect. The following briefly summarizes each case.

1 - State of Tennessee et al v Becerra brought in US District Court in Mississippi; appeal at the 5th Circuit.

Brought by the states of Tennessee, Mississippi, Alabama, Georgia, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Virginia, and West Virginia, the states challenge the broad interpretation of the statute, saying they would be faced with providing gender-affirming care under Medicaid.

The question is whether the 1557 nondiscrimination provision should be construed broadly to include protections against discrimination based on gender identity or LGTBQ status, or narrowly based on biological sex, essentially the same underlying legal question as the Neese challenge. 

The court found that the July 5, 2024, effective date of the regulation should be stayed by a nationwide preliminary injunction in so far as the regulations “are intended to extend discrimination on the basis of sex to include discrimination on the basis of gender identity.” The court also enjoined HHS from enforcing, relying on, implementing, or otherwise acting pursuant to the May 2024 Rule’s provisions concerning gender identity. ACS CAN led an amicus brief joined by 24 patient and health care professional groups filed in the US Court of Appeals for the Fifth Circuit on 11/26/24. Read our statement.

2 - State of Texas and State of Montana v Becerra brought in US District Court in the Eastern District of Texas; appeal at the 5th Circuit.

The lawsuit challenges the same final rule, noting that the rule would require plaintiff states to pay for gender-affirming health care services on minors while their state laws prohibit it. The court negatively referenced some cancer-specific examples such as HHS requiring providers to perform a prostate cancer screening on a transgender woman, but also compelling a provider to perform a prostate cancer screening on a biological woman who demands one.

The states maintain that any provider who would perform a hysterectomy to treat uterine cancer must also be willing to perform the elective removal of a healthy uterus for purposes of gender transition. HHS promises that a covered entity would not be required to perform a cervical exam on an individual who does not have a cervix, or to perform a prostate exam on an individual who does not have a prostate. However, it does maintain a provider would violate the rule by universally declining to perform “gender-transition” procedures based on the belief that such procedures are always detrimental to the patient. Similarly, the regulation makes clear that a health insurance entity violates the rule by denying coverage for “gender-affirming care” unless the entity can articulate a rationale that HHS considers a “legitimate, nondiscriminatory reason” that does not “constitute a pretext for discrimination.” The Medicaid and CHIP insurance programs are included. The district court issued a stay on this part of the rule in Texas and Montana.

ACS CAN led an amicus brief joined by 24 patient and health care professional groups filed in the Fifth Circuit on 12/4/2024.

3 - State of Florida v HHS brought in US District Court in Florida; appeal at the 11th Circuit.

The state of Florida along with some of its health agencies and the Catholic Medical Association on behalf of its 2,500 members sued claiming the regulation forces the state to violate its own laws prohibiting gender affirming care for minors and is a violation of the Religious Freedom Restoration Act for the association and its members. The court highlighted HHS’s view that a covered entity will be in violation of the rule if they refuse to admit a transgender person for care or refuse to place them in facilities consistent with their gender identity because placing them in a facility not consistent with their biological sex would violate state law.

The legal arguments on Title IX versus Title VII and Bostock are the same as the above cases. The court also added discussion of its own weighing of “the public interest and balance of harms” caused by the rule, including the lack of clarity on the safety and efficacy of gender affirming care, as well as the off-label use of hormones that have not been approved by FDA for this purpose with a discussion of other countries’ practices. The district court issued a stay on enforcement of the rule in Florida. ACS CAN plans to lead an amicus brief in January, 2025.

On appeal to the US Court of Appeals for the Fifth Circuit, ACS CAN led patient groups in an amicus curiae brief providing scientific data to the court on the distinct challenges face by LGBTQ+ individuals in health care services, and arguing all individuals have the right to treatment free of discrimination. Read our press release.