The Trump Administration Wants To Make Health Care Discrimination Legal. So We Sued Them.

Here in Massachusetts, some may find it hard to believe that anti-LGBTQIA+ discrimination still happens. After all, we were the first state to recognize the marriages of same-sex couples – way back in 2004.

But it’s still hard in Massachusetts for young people to come out and for older LGBTQIA+ adults to be recognized. And anti-LGBTQIA+ discrimination happens all the time – including in doctor’s offices. For LGBTQIA+ Black, Indigenous, and people of color, these experiences of discrimination are exacerbated and compounded by systemic racism.

We hear about this daily at Fenway Health, where just over 40 percent of our patients identify as lesbian, gay, bisexual, or queer, and about 12 percent are transgender or gender diverse. Many of these people come to us because they have been unable to get the health care they need and deserve elsewhere.

One woman became our patient because the doctor she had been seeing would not believe her when she said she didn’t need birth control because she only had sex with women. A middle-aged gay man, newly diagnosed with HIV, was lectured by his doctor for not being “more careful.” A transgender man was denied requests for hormone therapy by his former provider.

Local and national surveys reflect what we hear from our patients. A 2018 survey by the Center for American Progress found that 14 percent of lesbian, gay, bisexual, and transgender respondents who had previously experienced discrimination in health care avoided seeking necessary medical care as a result, and 17 percent had not sought routine preventive care in the past year. The 2015 U.S. Transgender Survey of nearly 28,000 transgender people found that one in three respondents had experienced anti-transgender discrimination in health care within the previous year. That tracks with an earlier 2013 survey by Fenway Health and the Massachusetts Transgender Political Coalition finding that 24 percent of transgender residents in Massachusetts reported having experienced discrimination in healthcare settings.

Stories and data like these are why Fenway Health has joined a broad coalition of groups from around the country, including two others in Massachusetts, in a lawsuit to block a new rule recently issued by the U.S. Department of Health and Human Services (HHS) that strips LGBTQIA+ nondiscrimination protections from the Affordable Care Act (ACA).

Although the ACA was passed in 2010, the LGBTQIA+ anti-discrimination protections were not finalized until 2016. They were written with broad input from health care providers, public health experts, and civil rights attorneys. The final nondiscrimination rule, which the Trump Administration is now trying to revoke, explicitly prohibits gender identity discrimination, including discrimination against intersex and non-binary people, in health care facilities and programs that receive federal funding. The rule also prohibits discriminatory coverage exclusions for transgender people in health insurance plans. Sexual orientation discrimination that takes the form of sex stereotyping is also prohibited. Such discrimination could include denying fertility treatment to a lesbian couple based on the outdated belief that women should only be in relationships with men, or that every child should be raised by a mother and a father.

The legal reasoning behind the 2016 rule was affirmed in last month’s landmark U.S. Supreme Court ruling in Bostock v. Clayton County, Georgia, which held that it is unconstitutional to discriminate against employees based on sexual orientation or gender identity. The majority stated unequivocally that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

When the Trump administration first proposed revoking the ACA nondiscrimination provisions in 2019 it was inundated with feedback from nearly 156,000 organizations and individuals, over 134,000 of which urged officials to leave the nondiscrimination protections in place. These included many of the nation’s most trusted medical and professional associations, including the American Medical Association, the American Psychological Association, the American Academy of Pediatrics, and the National Association of Social Workers.

Protecting people from discrimination is not new or controversial. Nine in 10 Americans support nondiscrimination protections based on sexual orientation and gender identity in employment and in health care. The Joint Commission, a nonprofit organization that accredits hospitals and other health care organizations, has required sexual orientation and gender identity nondiscrimination policies in health care institutions as a criterion for accreditation since 2011.

It is especially unconscionable that HHS is attempting to strip necessary LGBTQIA+ discrimination protections out of the ACA in the midst of a global COVID-19 pandemic that has already claimed the lives of more than 135,000 US residents, triggered massive unemployment that has caused nearly 27 million people to lose their employer-supported health insurance, and exacerbated significant racial and ethnic disparities in access to healthcare and in health outcomes.

As a nation, we are better than this. The rollback of these protections is discriminatory and unlawful. We hope the United States District Court for the District of Massachusetts agrees.

Ellen LaPointe is the CEO of Fenway Health.