The Department of Health and Human Services (HHS) has proposed rules enacting a civil rights provision, known as Section 1557, of the Patient Protection and Affordable Care Act (PPACA) that would prohibit sex discrimination against patients by healthcare organizations and health plans, including those participating in the health insurance marketplace. The proposal bans any health program or activity that receives federal funds from discriminating based on race, national origin, sex, age, or disability. The proposed rule also establishes that sex discrimination prohibitions include discrimination based on gender identity. Although HHS's Office for Civil Rights (OCR) has previously interpreted Section 1557 as barring discrimination based on sexual orientation, HHS's proposal is more vague about Section 1557's application in prohibiting discrimination based on sexual orientation, noting that court rulings have been mixed as to whether sexual orientation is covered by prohibitions on sex discrimination. HHS asks for comments on whether the rule should include an exemption for healthcare providers whose religious beliefs clash with same-sex relationships. The proposed rule has other new protections, including additional provisions for language assistance for patients with limited English proficiency. Comments on the proposal are due November 6, 2015. Additional information is available in a September 3, 2015, New York Times article on the proposal. Even before the proposed rule was issued, OCR was accepting complaints of discrimination under Section 1557 and in July reached its first settlement agreement enforcing that provision. The agreement is with a New York hospital accused of putting a transgender patient who identified as female in a double room with a male patient. As part of the settlement agreement, the hospital agreed to update is transgender nondiscrimination policy and provide training to staff.

HRC Recommends: As healthcare consumers, individuals within the lesbian, gay, bisexual, and transgender (LGBT) community are disproportionately affected by health disparities compared with the rest of the population. Healthcare organizations should ensure they have inclusive approaches in place toward LGBT patients and staff. Under Section 1557 of PPACA healthcare organizations could be at increasing risk of antidiscrimination lawsuits filed by LGBT patients who have been refused care or treated unfairly.