Tell the Biden-Harris Administration to Protect LGBTQI Health

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Background Information on Section 1557 of the ACA

On July 25, 2022, the US Department of Health and Human Services announced a proposed rule implementing Section 1557 of the Affordable Care Act (ACA). These regulations make clear that Section 1557 protects LGBTQI+ people from mistreatment by healthcare providers and insurers. 

The proposed rule restores and strengthens protections for LGBTQI+ patients following a 2020 rule which rolled back key protections in the ACA. While regulations to implement this provision issued by the Obama Administration made this explicit, new rules issued by the Trump Administration in 2020 literally erased LGBTQI+ people from the regulations and added sweeping religious exemptions for health care providers who wished to turn people away. 

Among other provisions, the proposed regulations make clear that the definition of “sex” discrimination under ACA Section 1557 is broad enough to protect our LGBTQI+ community comprehensively. The proposed rule ensures that protections against “sex” discrimination include discrimination based on sex characteristics, intersex traits, and pregnancy and pregnancy termination, and align with federal court decisions prohibiting discrimination based on gender identity and sexual orientation. 

The proposed rule also broadens coverage of nondiscrimination provisions to Medicare Part B and strengthens services for people with limited English proficiency.

For a detailed summary of the proposed regulation, please see this Health Affairs Forefront piece

For a summary of the proposed changes from HHS, please see information from the Office for Civil Rights.

Organizations Collecting Comments from the Community

The Protect LGBTQI Health Portal is managed through a partnership between The National LGBT Cancer Network, GLMA: Health Professionals Advancing LGBTQ+ Equality, and Duke Sexual and Gender Minority Health Program. The partnered organizations came together to collect stories and comments for this proposed rule from their members and the broader community.

Comments are also being collected by the following partners:

Deadline for Comments

Comments on the proposed rule must be submitted by October 3, 2022. 

The partnered organizations will continue collecting stories for advocacy purposes after the comment period has ended, but those submitted to the portal after the deadline will not be sent to the administration.

Key Messaging and Tips for Healthcare Providers (Courtesy of Whitman-Walker Institute)

Messaging:

  • This new rule is about fairness: everyone should be able to get the health care they need without being afraid of discrimination or mistreatment. 
  • This new rule represents a critical step by the federal government to affirm health care access for LGBTQI+ people, especially for transgender, nonbinary, and intersex people. 
    • The new rule restores important protections gutted by the Trump Administration and takes meaningful steps to stop discrimination.
    • The rule includes clear and specific protections for some of our most vulnerable community members, including transgender, nonbinary, and intersex people, people with limited English proficiency, and people with disabilities.
  • LGBTQI+ people face widespread discrimination in health care settings, and this discrimination acts as a barrier to seeking and accessing basic and life-saving health care services, including preventive care, check-ups, and emergency care.
    • 15% of LGBTQ respondents overall, and 28% of transgender respondents, reported postponing or avoiding needed medical treatment due to discrimination, according to a 2020 survey by the Center for American Progress.
    • 36% of LGBTQ respondents who had previously experienced discrimination reported not going to the doctor when they needed to because they were afraid of encountering discrimination, compared with 20 percent of LGBTQ respondents overall. This suggests that discrimination makes LGBTQ people less likely to seek out necessary medical care in the future. 
  • It’s essential that the federal government finalize and implement this proposal, so that its expanded protections can improve the lives of LGBTQI+ people currently facing barriers to health care and insurance coverage.
  • The protections outlined in this proposed regulation are supported by decades of peer-reviewed research showing that access to inclusive health care for LGBTQI+ people and access to gender-affirming care for transgender people is essential for our community members to live healthy and happy lives. 
  • Doctors—not politicians—are the experts about what health care services their patients need. We deserve a health care system where medical experts are empowered to support their patients’ unique needs with compassion and respect. 
  • This new rule is a critical step in protecting transgender and other LGBTQI+ people, but there’s still a long way to go to make these protections a reality. 

Tips for Healthcare Providers:

  • Argue from your own experience and expertise – you don’t have to be a lawyer or policy expert to offer your professional opinion of the proposed regulation and its likely impacts. Sharing findings from your research, summarizing scientific or medical consensus, and/or submitting stories of your patients (using de-identified information) go a long way to establish that there is a problem the government needs to help solve and that protecting people from discrimination positively impacts health. You can use phrases like: 
    • “As a primary care provider for the last 15 years, I’ve seen how devastating it is when patients can’t get insurance coverage for essential treatments…”
    • “As a provider in the South, I’ve had many patients who say they’ve been treated terribly by other doctors because of their gender identity, so I know that we still need to do more to address this issue…”
  • You don’t have to comment on every piece of the regulation – choose what portions are most relevant to you and your work. There are a range of proposals included in the draft regulation that speak to how HHS will enforce the rule, who is covered under the rule (and what programs and activities are covered), how covered entities communicate to their patients and consumers about their rights under the law, and other provisions. You can find a list of other proposals that may be particularly relevant to your work below.
  • Say what you support and what you don’t support and why – include citations to specific research to back up your position, share stories from your practice, or otherwise provide HHS a rationale for keeping or dropping specific provisions. 
  • Be succinct – Your comment doesn’t need to be long: a short comment that briefly summarizes your expertise and opinion is extremely helpful. A large number of comments and the expert contribution to those comments are what matter to the public comment process, so don’t let concerns about length stop you from making sure your voice and expertise are heard.