Defending Patients from Discrimination on the Basis of Sex or Limited English Proficiency

December 14, 2020

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. It also required civil rights notices be posted in different languages, so that individuals with limited English proficiency (LEP) could be aware of the protections.

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” and rescinding the requirement for language translations. The new interpretation would allow discrimination against gay and transgender individuals. For example, a health provider would be allowed to refuse treatment for a man with ovarian cancer.

Several lawsuits have been filed to invalidate the 2020 Rule, which has not been implemented yet due to a preliminary injunction against it while the issue is being heard in the courts.  The state of New York is the lead plaintiff in the case brought by 23 states, New York et al v HHS.  ACS CAN led 15 patients groups in filing an amicus brief urging the US District Court for the Southern District of New York to strike down the 2020 Rule.  Read our press release.  The brief provides extensive scientific data to the court on health disparities in the LGBTQ community and for LEP individuals, demonstrating why the protections in the 2016 Rule should be reinstated.