by Cullen Peele •
First proposed in 2022, the latest rule incorporates protections on the basis of sexual orientation and improves pre-existing protections for gender identity, mandating nondiscrimination in health care and insurance coverage for LGBTQ+ Americans.
WASHINGTON, D.C. - Today, the Biden-Harris administration announced the finalization of a new regulation strengthening non-discrimination protections enforced by the Affordable Care Act (ACA). The updated rule, implementing Section 1557 of the ACA, will now provide clear protections on the basis of sexual orientation and sex characteristics. It will also improve pre-existing protections for gender identity, making today’s rule a major, and hard-fought, win for improved health care access for LGBTQ+ Americans. Today’s announcement provides much relief for LGBTQ+ Americans who are more likely to face discrimination and difficulty accessing services than those not in the LGBTQ+ community. HRC hailed the Administration for proposing the rule in 2022, stating that it would help close the health care gap for queer people in an era of unprecedented health care rollbacks.
Today we mark a crucial step forward by the Biden-Harris administration, in the fight for complete health equity for LGBTQ+ Americans. Countless Americans can now find solace in knowing that they cannot be turned away from health care they need just because of who they are or who they love. This important milestone would not be possible without years of advocacy from HRC and our partners who refuse to accept discrimination of any kind for LGBTQ+ people and other marginalized Americans. We thank the Department of Health and Human Services for their work on this regulation and look forward to continue working with the Administration to advance toward full liberation, without exception.”
The Section 1557 rule, as implemented during the Obama administration, already prohibits most insurers from discriminating on the basis of sex — including gender identity — when providing health coverage. Discrimination on the basis of gender identity includes any denial of care or coverage related to gender transition or refusal of treatment that is typically associated with one gender because an individual’s gender may be different from what is listed in their medical records. The original rule also provided protections based on sex stereotypes that included examples of discrimination based on sexual orientation.
Examples of discrimination that will now be explicitly prohibited include:
Denial of coverage for hormone replacement therapy (HRT) that transgender people regularly need (services that are commonly received by cisgender counterparts, often with fewer barriers)
Denial of fertility care or coverage for same sex couples
Verbal or physical abuse from doctors or other medical providers directed at LGBTQ+ patients
Turning away LGBTQ+ people in emergency situations because of their sexual orientation or gender identity
Disappointingly, the rule incorrectly analyzes the intersection of Sec. 1557 and the Religious Freedom Restoration Act by failing to take into account that the government has a compelling interest in eradicating discrimination in health care and that the only way to end discrimination is to prohibit denial of care and other forms discrimination. The rule will allow health care entities to request a waiver based on religious beliefs that will automatically be granted on a temporary basis.
In 2019, the Trump administration announced an impending rule change to Section 1557 that would have undermined protections for LGBTQ+ people. HRC sued in 2020 to block that rule from going into effect, arguing that the removal of protections against sex stereotyping and gender identity exceeded the administration’s authority to define sex discrimination under the ACA and would have grossly undermined the law’s primary goal of eliminating barriers and broadly expanding access to healthcare and health education programs.
The roll-back was blocked through a preliminary injunction issued in response to HRC’s lawsuit, and in May 2021, the Biden administration announced that it would enforce federal policy to protect LGBTQ+ people from discrimination in health care based on gender identity and sexual orientation. The new rule improves protections for transgender people by clarifying that care that is considered “sex specific,” such as prostate exams and pap smears, must be covered when needed regardless of a person’s gender, and by prohibiting categorical coverage exclusions for gender affirming care. In addition, among other changes, the new rule restores protections for pregnancy and related medical conditions, provisions prohibiting discriminatory insurance marketing practices and plan designs, and application to all HHS administered health programs. The rule also requires the adoption of nondiscrimination policies and training, extends nondiscrimination coverage to Medicare Part B, and clarifies that the nondiscrimination protections extend to telehealth services.
Over the years, HRC members and supporters drove over 12,465 comments on Section 1557.
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