Jun 5, 2012 Secretary Kathleen Sebelius Department of Health and Human Services 200 Independence Avenue, S.W. Washington, D.C. 20201 Dear Secretary Sebelius: As advocates for lesbian, gay, bisexual, and transgender (LGBT) people and their families, we are grateful for the impressive efforts the Department of Health and Human Services (HHS) has made to ensure high quality care for all patients. We write today to urge the Department to swiftly issue guidance clarifying that sex-based discrimination includes discrimination on the basis of gender identity and sex stereotypes under section 1557 of the Patient Protection and Affordable Care Act (ACA). As you know, our organizations have worked extensively with HHS to identify and eliminate discrimination and health disparities based on sexual orientation and gender identity. While the ACA has the potential to significantly improve equal access to care for all underrepresented communities, without explicit protections, LGBT patients and families remain vulnerable to discrimination and mistreatment in healthcare settings. We have previously submitted memoranda detailing this problem and the need for HHS to issue implementing regulations for section 1557 that would, among other things, clarify that provision’s application to discrimination against LGBT individuals. While the need for regulations for section 1557 remain, we believe recent developments have made it necessary for HHS to issue clarifying guidance 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 support for HHS and other federal agencies to unequivocally state that discrimination based on sex includes discrimination based on gender identity or expression. In a recent case, the EEOC stated that Title VII’s ban on sex discrimination prohibits discrimination on the basis that a person is transgender. The Commission summarized its reasoning as follows: When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment “related to the sex of the victim.” This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person. In each of these circumstances, the employer is making a gender-based evaluation, thus violating the Supreme Court’s admonition that “an employer may not take gender into account in making 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 interpreting other statutes that prohibit discrimination based on sex.
2
The EEOC ruling joins a trend of recent cases holding that discrimination based on gender identity and expression is encompassed by a prohibition against discrimination based on sex.
3
HHS should issue guidance in this area and make clear that the prohibition against discrimination based on sex in the ACA includes a prohibition against discrimination based on gender identity and sex stereotypes. In addition, HHS and other federal agencies have in recent years explicitly interpreted sex discrimination laws to prohibit discrimination against LGBT persons because on their gender identity or nonconformity with sex stereotypes. In 2010 both the Department of Education and the Department of Housing and Urban Development issued guidance to this effect regarding Title 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 its internal 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 the Agency for Healthcare Research and Quality (AHRQ)
6
and a landmark report on LGBT health from 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 and public health. Guidance from HHS is urgently needed to clarify the critical legal protections that section 1557 provides for these populations. HHS should issue formal guidance on this issue, as other 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 important issues. Ensuring the health and well-being of the LGBT community is an essential component to achieving justice and equality for all communities. We thank HHS for its continued commitment to providing equal access to high quality care for LGBT patients, and we look forward to continuing 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. Brown Univ.
,
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. 3d 1033 (8th Cir. 2010); Prowel v. Wise Business Forms, Inc., 579 F. 3d 285 (3rd Cir. 2009); Smith v. Salem
,
378 F.3d 566, 574-75 (6th Cir.2004); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874 (9th Cir. 2001); Lopez v. River Oaks 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 Sexual Orientation, 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).