Serving LGBTQ Patients: How Do Sex Discrimination Laws Apply?

Did you know that the federal government’s definition of “sex discrimination” now includes sexual orientation and gender identity? This interpretation has real-world implications for healthcare practices under the Affordable Care Act. We outline the basics of staying compliant.

In May 2021, the Department of Health and Human Services (HHS) Office for Civil Rights (OCR)  announced that the Affordable Care Act’s prohibitions on sex discrimination will include sexual orientation and gender identity. So what does this mean for healthcare practices?

Legal Background

OCR made the new policy following the U.S. Supreme Court’s decision in Bostock v. Clayton County. In that case, a gay man sued his former employer, alleging discrimination based on his sexual orientation. The Court held that Title VII of the Civil Rights Act of 1964, which bars sex-based employment discrimination, includes sexual orientation and gender identity. 

Meanwhile, Section 1557 is the nondiscrimination provision of the Affordable Care Act (ACA). It prohibits health programs from discriminating on the basis of race, color, national origin, sex, age, or disability. The law, which applies to all federally funded health programs and providers, aims to expand healthcare access and reduce health disparities. 

Rather than creating new classifications, the ACA applies existing civil rights laws. Thus, with the new interpretation of Title VII, covered providers cannot refuse to treat—or otherwise discriminate—against a person based on their sexual orientation or gender identity. 

OCR can sanction violators by suspending or terminating their ability to receive federal financial assistance. Moreover, noncompliant healthcare providers may be required to pay compensatory damages. Lastly, Section 1557 has a private right of action, which means that individual patients can sue violators in federal court.   

Who Must Comply with Section 1557?

Section 1557 applies to entities receiving any amount of federal financial assistance. The concept of receiving federal financial assistance is broad. It includes hospitals that accept Medicare, individual doctors that accept Medicaid, the Health Insurance Marketplaces, and any program that HHS itself administers. Even entities that receive federal tax credits or government subsidies are subject to the section’s regulations. In short, virtually all hospitals and most physician groups are covered entities and must comply. 

What is Considered Discriminatory? 

Currently, LGBTQ people face discrimination in healthcare settings. Many are refused care outright. Others postpone or avoid needed treatment due to fear of disrespect and harassment. OCR wants to reduce these disparities by increasing provider knowledge regarding care for these patients.

Under the new interpretation of Section 1557, providers cannot refuse to treat someone solely based on their sexual orientation or sexual identity. Further, insurers cannot refuse to offer or renew plans—or impose higher cost-sharing burdens—on individuals due to their sex. Moreover, providers cannot stereotype. That is, they cannot make treatment decisions based on assumptions about an individual arising from their sexual orientation or gender identity. 

Often, though, LGBTQ patients suffer from less explicit discrimination. In these instances, OCR’s enforcement policy is less clear. For example, providers can fail to recognize their patients’ gender identities. This includes misgendering patients and not allowing equal access to public restrooms. 

Things get even more complicated when the patient’s gender identity is relevant to the treatment. For instance, imagine a physician refuses to prescribe a transgender patient gender-affirming hormone treatments. This patient can cite OCR’s updated policy and sue the physician under Section 1557. Here, the patient can argue that the physician denied medically necessary care just because they are transgender. 

The physician, however, might counter that his clinical judgment was that the patient would not benefit from the hormones. Accordingly, the physician will argue that he did not discriminate; he simply did what he thought would result in the best outcome for his patient. 

Additionally, some healthcare providers might argue that treating an LGBTQ patient would interfere with their religious beliefs and cite the Religious Freedom Restoration Act (RFRA). Similarly, they may cite a federal or local conscience law. In the future, real-world litigation will reveal exactly how OCR will enforce the expanded interpretation in these cases. 

In sum, it remains unclear which behaviors OCR will determine to be discriminatory and how OCR will address religious or conscience arguments. However, it is certain that OCR will now process and investigate complaints of health care discrimination from LGBTQ patients.  

How to Stay Compliant with Section 1557

Compliance starts with having effective organizational procedures. To start, OCR requires covered entities with fifteen or more employees to have a grievance procedure and a compliance coordinator. 

Covered providers must also post notices informing patients about their rights and where they can file complaints. OCR provides a sample of such a notice on their website. Providers should make the information available in multiple languages using clear, simple wording. The notices must make one thing clear: the organization does not discriminate against anybody based on gender identity or sexual orientation. 

Providers should communicate this nondiscrimination policy by:

• Posting it on their website
• Displaying it in patient waiting rooms and employee work areas
• Including it in materials given to patients 

Additionally, healthcare practices should implement appropriate protocols for treating LGBTQ patients. Above all, this comes down to respect and professionalism. 

Acknowledging a Patient’s Identity

Be sure to refer to patients by their self-identified pronouns, regardless of appearance or stage of transition. If you’re unsure about a patient’s preferred pronouns, ask what form of address they prefer. To make this discussion more natural, you can start by offering your own: Hello, I am Dr. John Smith, and my pronouns are he/him. How should I refer to you? 

Record patients’ genders in their medical records. To do this, collect patients’ information in an LGBTQ-friendly intake form. Then, you can maintain this information in all billing and registration documents. Because terms continue to evolve, you can leave a blank space on your intake form when asking about gender identity and sexual orientation, for example:

• My gender is______
• My sexual orientation is______
• My gender assigned at birth was______
• My preferred pronouns are______

Alternatively, you can use checkbox options. However, recognize that the options are non-exhaustive. Leave a blank space so patients can add additional clarification. For example:

• Straight
• Lesbian
• Gay
• Bisexual
• Queer
• Questioning
• Asexual 
• Another identity______
• Prefer not to answer

Additionally, ensure transgender patients have safe access to restrooms in accordance with their gender identity. Extend this access to all rooms assigned based on gender—always allocate hospital rooms based on the patient’s gender identity, not the sex assigned at birth. In fact, Section 1557 prohibits covered entities from denying individuals equal access to health facilities. Denying transgender patients equal access to hospital rooms, then, might result in liability. 

Employment and Training

Importantly, maintain appropriate employment practices. This starts with valuing diversity in your hiring practices and providing employees with proper LGBTQ cultural competency training. In addition, you should create and publicize anti-discrimination policies and procedures that include reporting options. Moreover, implement mandatory training that equips employees with the knowledge and tools to treat LGBTQ patients competently. 

Patient-Centered Care

Above all, promote patient-centered care. Patient-centered care puts patients first. It’s about treating people as they want to be treated while respecting each person’s values. Patient-centered care respects the patient’s needs and encourages bilateral collaboration. It results in higher rates of patient engagement and satisfaction. It reduces the chance an LGBTQ patient will have a negative healthcare experience. To be patient-centered:

• Respect patients’ needs and preferences
• Actively listen
• Encourage patients to participate in their treatment
• Defer to patients’ understanding of their health and experiences 
• Promote physical and emotional comfort

Thus, compliance with Section 1557 won’t just keep providers out of the courtroom, it will help them provide high-quality care and increase the LGBTQ patients’ trust and connection with their providers.

Future Developments

OCR’s updated policy is likely just the start. The momentum towards a more inclusive health policy is growing. For example, the American Medical Association (AMA) recently joined dozens of other organizations in vocalizing support for H.R. 5, the Equality Act. If passed, the Equality Act would amend the Civil Rights Act of 1964 to expressly prohibit discrimination on the basis of sex, sexual orientation, and gender identity. Indeed, the AMA, the American College of Physicians, and many other medical and mental health organizations are advocating for increased anti-discrimination protections for LGBTQ patients.   

As courts and legislators continue to expand protections, you’ll need to stay updated on how to avoid non-compliance. If you practice in one of the states that we serve, reach out to us for a free consultation to discuss how you can stay compliant with OCR’s updated interpretation of Section 1557 and other new rules.

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.