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June 6 LGBT 1557 Letter to HHS

June 6 LGBT 1557 Letter to HHS

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Published by Chris Geidner

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Published by: Chris Geidner on Aug 06, 2012
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08/23/2013

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Jun 5, 2012Secretary Kathleen SebeliusDepartment of Health and Human Services200 Independence Avenue, S.W.Washington, D.C. 20201Dear Secretary Sebelius:As advocates for lesbian, gay, bisexual, and transgender (LGBT) people and their families, weare grateful for the impressive efforts the Department of Health and Human Services (HHS) hasmade to ensure high quality care for all patients. We write today to urge the Department toswiftly issue guidance clarifying that sex-based discrimination includes discrimination on thebasis of gender identity and sex stereotypes under section 1557 of the Patient Protection andAffordable Care Act (ACA).As you know, our organizations have worked extensively with HHS to identify and eliminatediscrimination and health disparities based on sexual orientation and gender identity. While theACA has the potential to significantly improve equal access to care for all underrepresentedcommunities, without explicit protections, LGBT patients and families remain vulnerable todiscrimination and mistreatment in healthcare settings. We have previously submittedmemoranda detailing this problem and the need for HHS to issue implementing regulations forsection 1557 that would, among other things, clarify that provision’s application todiscrimination against LGBT individuals. While the need for regulations for section 1557remain, we believe recent developments have made it necessary for HHS to issue clarifyingguidance on the application of the law in this area in advance of formal rulemaking.A recent ruling from the Equal Employment Opportunity Commission provides strong supportfor HHS and other federal agencies to unequivocally state that discrimination based on sexincludes discrimination based on gender identity or expression.In a recent case, the EEOC stated that Title VII’s ban on sex discrimination prohibitsdiscrimination on the basis that a person is transgender. The Commission summarized itsreasoning as follows:When an employer discriminates against someone because the person is transgender, theemployer has engaged in disparate treatment “related to the sex of the victim.” This istrue regardless of whether an employer discriminates against an employee because theindividual has expressed his or her gender in a non-stereotypical fashion, because theemployer is uncomfortable with the fact that the person has transitioned or is in theprocess of transitioning from one gender to another, or because the employer simply doesnot like that the person is identifying as a transgender person. In each of thesecircumstances, the employer is making a gender-based evaluation, thus violating theSupreme Court’s admonition that “an employer may not take gender into account inmaking an employment decision.” (Citations omitted.)
1
 
1
Macy v. Holder, E.E.O.C. Appeal No. 0120120821, *7 (Apr. 23, 2012).
 
 
It is well-established that courts and federal agencies look to Title VII case law in interpretingother statutes that prohibit discrimination based on sex.
2
The EEOC ruling joins a trend of recentcases holding that discrimination based on gender identity and expression is encompassed by aprohibition against discrimination based on sex.
3
HHS should issue guidance in this area andmake clear that the prohibition against discrimination based on sex in the ACA includes aprohibition against discrimination based on gender identity and sex stereotypes.In addition, HHS and other federal agencies have in recent years explicitly interpreted sexdiscrimination laws to prohibit discrimination against LGBT persons because on their genderidentity or nonconformity with sex stereotypes. In 2010 both the Department of Education andthe Department of Housing and Urban Development issued guidance to this effect regardingTitle IX and the Fair Housing Act respectively.
4
Similarly, HHS along with the Departments of Agriculture, Interior, Labor, State and numerous other federal agencies has recently updated itsinternal EEO policy to reflect the understanding that gender identity discrimination is a form of sex discrimination.
5
 Numerous recent reports, including the 2011
 National Healthcare Disparities Report 
from theAgency for Healthcare Research and Quality (AHRQ)
6
and a landmark report on LGBT healthfrom the Institute of Medicine,
7
have made clear that LGBT people face high levels of discrimination in the provision of health services that has a substantial impact on individual andpublic health. Guidance from HHS is urgently needed to clarify the critical legal protections thatsection 1557 provides for these populations. HHS should issue formal guidance on this issue, asother departments have done, ahead of eventual formal rulemaking on section 1557.We want to reiterate our gratitude for the HHS’s commitment to these incredibly importantissues. Ensuring the health and well-being of the LGBT community is an essential component toachieving justice and equality for all communities. We thank HHS for its continued commitmentto providing equal access to high quality care for LGBT patients, and we look forward tocontinuing to work with you on these issues in the future.Sincerely,
2
 
See
,
e.g.,
Community House Inc. v. City of Boise, 490 F.3d 1041, 1048 n.3 (9th Cir. 2007) (Fair Housing Act);
 
Schwenk v. Hartford
 
, 204 F.3d 1187, 1201-02 (9th Cir. 2000) (Gender Motivated Violence Act); Wills v. BrownUniv.
 ,
184 F.3d 20, 25 n. 3 (1st Cir.1999) (Title IX) .
 
3
 
See
,
e.g.,
Glenn
 
v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Lewis v. Heartland Inns of America, LLC, 591 F. 3d1033 (8th Cir. 2010); Prowel v. Wise Business Forms, Inc., 579 F. 3d 285 (3rd Cir. 2009); Smith v. Salem
 ,
 378 F.3d566, 574-75 (6th Cir.2004); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874 (9th Cir. 2001); Lopez v. RiverOaks Imaging & Diagnostic Group, Inc., 542 F.Supp.2d 653, 659–661 (S.D.Tex.2008); Schroer v. Billington, 577 F.Supp. 2d 293, 306-07 (D.D.C. 2008).
 
4
United States Department of Education, “Dear Colleague Letter: Harassment and Bullying,” (October 26, 2010);Memorandum from John Trasviña to FHEO Regional Directors, Assessing Complaints that Involve SexualOrientation, Gender Identity, and Gender Expression (June 2010).
5
EEO Policy Statement,http://www.hhs.gov/asa/eeo/policy/index.html.
 
6
Agency for Healthcare Research and Quality,
 National Healthcare Disparities Report 
(2012).
7
Institute of Medicine,
The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for  Better Understanding
(2011).
 

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