Earlier this month, HHS repealed protections for transgender individuals seeking medical care and three days later, the United States Supreme Court delivered a ruling defending LGBT people from discrimination in the workplace under Title VII.
These two major changes in how the law impacts care for sexual and reproductive health for LGBT individuals and cisgender women intertwine to raise questions about the future of LGBT healthcare.
The Health and Human Services rule change lifted Obama era protections for people on the basis of gender identity, but the SCOTUS majority opinion defended protections for those same people. In Bostock v. Clayton County, Justice Neil Gorsuch articulated the reasoning for Title VII protection extending to LGBT individuals in the workplace.
It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
For the estimated 250,000 LGBT Arizonans, this judgement was likely a great relief, albeit an unexpected one. But Justice Gorsuch made it clear that this ruling was significant only to matters of workplace discrimination.
Mercer reports that the ruling will have an impact on employer group health plans. Although the lawsuit specifically regarded wrongful termination, it also has implications for things like employer sponsored plans and other health related benefits.
For example, employers may want to adjust group health plan coverage of gender dysphoria and related services, including gender-affirmation surgeries; review and compare benefits for same-sex and opposite-sex spouses; and review the need for gender reassignment as an identifier in benefit plan administration.
Although the decision does not specifically address health coverage, it does bring up compliance risks for plans that cover employees differently depending on their gender or sexual orientation. But while Bostock does not influence actual health administration, but the rule change by HHS does.
HHS will enforce Section 1557 by returning to the government’s interpretation of sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.
Section 1557 of the Affordable Care Act bars health plans and providers from discriminating against people on the basis of “race, color, national origin, sex, age or disability” in accordance with Title IX of the Education Amendments of 1972 and the Civil Rights Act of 1964. Even under the reversed rule, discrimination based on sex is prohibited, and according to the Supreme Court “it is impossible” to discriminate against one without the other.
The fundamentals of these two conflicting actions could give rise to a lawsuit that would eventually come before the Supreme Court. Covered medical providers may be hesitant to change internal discrimination policy due to this rule change for that reason.
The American Hospital Association agreed, with President and CEO Rick Pollack penning a condemnation of the rule change shortly before its release.
Hospitals and health systems value every individual we have the privilege of serving, regardless of race, religion, national origin, sexual orientation or gender identity. This is why we urged the administration to not move forward with changes to non-discrimination protections.
The matter is further complicated by a 2019 US District Court for the Northern District of Texas ruling, which determined that Section 1557 with 2016 corrections for gender identity interferes with provider’s religious freedom and violates the federal Religious Freedom Restoration Act. This creates an environment of competing accommodations, which will also likely be legally reconciled at a later date.
Catch up with our previous reporting on the rule change and SCOTUS ruling from The Hertel Report
Read more about the legal justification for the HHS rule change at the National Law Review