Lambda Legal to HHS: Health care discrimination against LGBT people is illegal

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(Photo by Zackary Drucker as part of Broadly's Gender Spectrum Collection)

(Photo by Zackary Drucker as part of Broadly’s Gender Spectrum Collection)

WASHINGTON — On Tuesday, Lambda Legal submitted comments to the U.S. Department of Health and Human Services objecting to a proposed rule change that seeks to roll back the protections under the Affordable Care Act’s (ACA) nondiscrimination provision (also known as Section 1557) that prohibit discrimination in health care on the basis of sex. The proposed rule seeks to carve-out LGBT people from the ACA’s nondiscrimination protections, inviting health care workers, doctors, hospitals and health insurance companies that receive federal funding to refuse to provide or cover health care services critical to the health and wellbeing of LGBT people and people living with HIV. But this attempt to roll back protections through an agency rule change cannot change the law itself. 

“The ACA is a law that prohibits health care and insurance providers from discriminating based on sex, which means LGBTQ patients are protected,” said Senior and Transgender Rights Project Attorney for Lambda Legal, Sasha Buchert. “This is an especially appalling attempt by the Trump administration to harm LGBTQ people because health care is so important, and because discrimination against transgender patients in particular is both rampant and devastating. The administration knows full well that court after court has held that the ACA protects transgender people. The proposed rule, if it went into effect, would only sow confusion in the health care industry, encourage more insurers to discriminate, and lead to more lawsuits to protect patients. Our communities need to know that, despite the Trump administration’s mean-spirited agency attacks, they continue to have rights under the law and Lambda Legal stands ready to fight this. If you experience discrimination when seeking health care because of your sexual orientation, gender identity or HIV status you should contact us immediately.”

Lambda Legal’s docket has multiple examples of LGBT people confronting discrimination and bias in accessing health care, including a lesbian couple denied infertility treatment at a women’s health clinic (see here), a gay man whose doctor refused to write him a medical prescription (see here) and a transgender man whose hospital refused to allow his surgeon to perform a routine hysterectomy (see here.) Lambda Legal has documented hundreds of other instances of discrimination, included many described in the comments on the proposed rule Lambda Legal submitted to HHS (see here).  

From the comments submitted by Lambda Legal: 

“Although the NPRM cannot change the law, as interpreted by multiple courts already, it improperly signals to those who wish to discriminate that they are free to do so, promising direct harm to LGBTQ people, and especially transgender people. This lawless Proposed Rule will only spur both mistreatment of patients and resulting lawsuits, placing health care providers in legal jeopardy by falsely signaling to them that it is perfectly fine to discriminate contrary to established federal law. Similarly, all the Proposed Rule will do concerning insurers is to create confusion, foster discrimination against LGBTQ patients, and pointlessly expose insurers to costly lawsuits.”

The public comment period for the proposed rule change ended yesterday. Advocates have collected more than 132,400 comments opposing the Trump administration’s attack on health care nondiscrimination rights and delivered them directly to HHS. Next, HHS will publish a final rule along with an effective date.

Lambda Legal is a member of the Health Care Rights Law Coalition, which also includes ACLU, Asian & Pacific Islander American Health Forum, Center for American Progress, Center for Constitutional Rights, Center for Reproductive Rights, CenterLink, Equality Federation, FORGE, In Our Own Voice: National Black Women’s Reproductive Justice Agenda, NARAL Pro-Choice America, National Center for Transgender Equality, National Council of Jewish Women, National Health Law Program, National LGBTQ Task Force, National Partnership for Women & Families, National Women’s Law Center, PFLAG National, Planned Parenthood Federation of America, Raising Women’s Voices for the Health Care We Need, The Leadership Conference Education Fund, TransChance Health, Transgender Law Center, Transgender Legal Defense and Education Fund, and WHARR.

Read Lambda’s Legal comments here: https://www.lambdalegal.org/in-court/legal-docs/20190813_hhs-1557-comments

Press release from Lambda Legal

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