Discrimination in the access to and the provision of healthcare has been, and continues to be, an unfortunate reality for the LGBTQ community that not only affects LGBTQ individuals themselves on a day-today basis, but also has a negative impact on their relationships and their families.
Historically, the LGBTQ community has been disproportionately affected by discriminatory insurance practices and provider-level bias. Fortunately, within the past several years, notable progress has been made. Federal, state, and private regulations now serve to protect the LGBTQ community and mitigate discriminatory obstacles. However, even with these policy protections and legal changes, the LGBTQ community continues to face interferences, difficulties, and limitations in access to quality healthcare and health insurance, which is particularly important for a community that faces a number of specific health concerns and has unique health needs, some of which can be attributed to bias, social, and structural inequities, such as discrimination.
Federal Law
Over the past several years, sex and gender identity discrimination has gained national attention, and such discrimination has been an important part of the discussions surrounding the Affordable Care Act ( "ACA" ).
In 2010, the ACA made historic changes in healthcare by expanding access to healthcare and health insurance to millions of people. More specifically, the ACA explicitly addressed discriminatory healthcare practices that had long kept the LGBTQ community from receiving access to quality healthcare. Section 1557 of the ACA prohibits discrimination based on sex by any health program receiving federal funds, such as Medicare and Medicaid.
Further clarifying this regulation, the U.S. Department of Health and Human Services ( "HHS" ) recently issued a rule clarifying that people cannot be denied healthcare or health insurance based upon their gender identity or nonconformity with sex stereotypes. This confirmation from the HHS is expected to dramatically improve access to quality healthcare for the LGBTQ community and reduce persistent health disparities due to discrimination. The ACA offers further protections against discrimination, providing that people cannot be denied health insurance due to pre-existing conditions, such as HIV/AIDS, or a transgender medical history.
State Law
In addition to federal protections, nearly half of the states have passed laws that specifically prohibit discrimination in public accommodations based on a person's sexual orientation. Public accommodations generally include facilities used by the public, such as hospitals, and include the provision of healthcare services by physicians and healthcare providers.
Some states, like Illinois, also prohibit discrimination based on gender identity. These state laws help protect the LGBTQ community from discrimination in the provision of healthcare and make it illegal for healthcare providers to refuse treatment based upon sexual orientation or gender identity.
Private Policies
On top of federal and state regulations, private organizations, such as the American Medical Association ( "AMA" ) have also established anti-discrimination policies. Although these policies and opinions published by private organizations may not be legally enforceable, the AMA's policies and opinions positively influence the practice of healthcare, provide physicians with guidelines, and contribute to the anti-discrimination dialogue.
Private organizations also serve as excellent resources and education for LGBTQ patients that face barriers to access to quality healthcare. For example, the AMA's "Policy on LGBTQ Issues" provides that physicians may not decline to accept or treat a patient because of the patient's sexual orientation or gender identity. The AMA further clarifies that a physician's right to religious refusal only applies to the refusal to provide particular treatment or procedures and does not apply to the refusal to treat a particular group of people, such as the LGBTQ community.
Combating Discrimination
Although federal and state regulations have been successful in increasing access to healthcare and health insurance, discrimination continues to thwart the LGBTQ community from receiving quality care and equal treatment. All people, regardless of sexual identity, deserve accessible, quality healthcare. If you believe you or someone you know has been denied healthcare treatment or health insurance based upon sexual identity, please consider the following options:
— Express your concerns to the physician or healthcare provider at issue.
— Provide the physician with a copy of the AMA ethical rules and/or your state's anti-discrimination laws.
— Report the discriminatory behavior to another physician, file a complaint with the hospital or medical center, and/or file a complaint with your state's medical licensing board or applicable professional association and licensing board for that provider.
— Contact your insurance company to report the healthcare provider's discriminatory actions.
Understanding and navigating healthcare and health insurance regulations can be challenging and overwhelming. In the event that you have any questions, you may also want to contact an attorney to discuss your situation.
Paige M. Steffen is an Associate Attorney in Clark Hill PLC's Chicago office. She concentrates her practice on insurance and health care law. Contact her at 312-517-7501 or psteffen@clarkhill.com .
