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).

During the course of three different presidential administrations, HHS has issued different rules implementing the provision.  The current guidance defines discrimination on the basis of gender identity and sex stereotyping broadly, consistent with widely accepted precedent concerning what constitutes discrimination “on the basis of sex.” The ban includes 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 its justification, 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.

In the case of Neese v. Becerra, a group of physicians in Texas challenged this interpretation, claiming 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.  In November of 2022, a US District Court 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.  The opinion held that 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.

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.