A Terrible HHS Ruling, and Hope from the Supreme Court
By Karla A. Bell and Melissa C. Hofmann
On June 12, 2020, The Trump Administration overturned an Obama-administration interpretation of Section 1557 of the Affordable Care Act protecting individuals who are transgender from discrimination in health care.
Here's how HHS put it: “Under the final rule, HHS eliminates certain provisions of the 2016 Rule that exceeded the scope of the authority delegated by Congress in Section 1557. 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. The 2016 Rule declined to recognize sexual orientation as a protected category under the ACA, and HHS will leave that judgment undisturbed.”
Here's what that really means: as far as HHS is concerned, it's open season for discrimination against LGBTQ+ people in the provision of health care.
It nearly goes without saying that the impact of this is profound for individuals in our communities. LGBTQ+ people who have experienced discrimination are already almost seven times more likely than heterosexual and cisgender counterparts to avoid seeking health care office visits to avoid future discrimination according to a 2017 survey by the Center for American Progress. Additionally, according to the same survey, 30% of individuals who are transgender report that a healthcare provider refused to see them due to their identity.
As previously affirmed in PT Proud’s position statement regarding the initial Denial of Care Rule in May 2019 and APTA’s commentary last August in open comments regarding Section 1557, we hold strong that this ruling is antithetical to our profession's core values and ethics and to APTA’s mission and vision.
The reality is, this ruling endangers the lives of sexual and gender minorities by removing legal protections for discrimination in health care.
But this issue has taken a new turn. Just days after HHS announced its decision, the issue of LGBTQ+ discrimination came into focus in a different way: namely, the June 15, 2020 Supreme Court Ruling that affirming that gender identity and sexual orientation are protected under the 1964 Civil Rights Act, Title VII.
The ruling provides protection for LGBTQ+ employees from discrimination in the workplace based on gender identity and sexual orientation. As of June 14, 2020, it was still legal to fire LGBTQ+ individuals in more than half of the states in the country. This is a monumental step in affirming equality for the LGBTQ community. Just as marriage equality had significant impacts on social determinants of health for these communities in 2015, so will this ruling in 2020.
There is much work still to be done related to the lack of protection from discrimination and gaps in federal civil rights laws for the LGBTQ+ community. The Supreme Court decision brings light to the greater meaning behind structural inequities, and we're hopeful that this light illuminates other areas where discrimination still exists.
At this moment, it's unclear how the Supreme Court ruling on employment discrimination will impact the HHS ruling that allows discrimination, but the ACLU and other organizations have already vowed to file suit with HHS over its elimination of protections in health care for individuals who are transgender.
PT Proud will continue to advocate for the health care rights of the LGBTQ+ community, and will continue to foster change that will provide for equitable treatment of all people regardless of gender identity and sexual orientation. We welcome our fellow PTs, PTAs, and physical therapy students to join us in this fight.
PT Proud is the LGBTQ+ Committee under the Global Health Special Interest Group of the Health Policy & Administration Section of the American Physical Therapy Association. The purpose of PT Proud is to unite PTs, PTAs, and students towards a common goal of affecting change in the profession of physical therapy through advocacy, policy, and promotion of competency education. We aim to address health disparities and positively affect the health care experience of LGBTQ+ patients, students, and clinicians.
You can join PT Proud as a committee once you join HPA-The Catalyst through APTA. Please also visit www.ptproud.org for additional information and resources, our Facebook Page, or twitter @PTProudAPTA
Karla A. Bell is Co-Chair of PT Proud and is faculty at Thomas Jefferson University in their Physical Therapy Department. She is pursuing her PhD in Population Health and her research areas focus on inclusive cultural competency/humility curricula integration in the health professions with faculty development as well as sexual and gender minority health disparities. Twitter: @passionatept
Melissa C. Hofmann is Co-Chair of PT Proud and is faculty at Regis University in the Physical Therapy Department. Dr. Hofmann continues to work as a Physical Therapist at the University of Colorado Health Anschutz. She holds a PhD in Research Methods and Statistics and her research areas focus on LGBTQ+ cultural competence in the clinical, academic and patient sectors, sexual and gender minority health disparity, trauma advocacy, and neurological Physical Therapy. Twitter: @melhofmann