The Supreme Court on Monday ruled 6-3 that employers cannot fire a person for being gay or transgender. The decision is a big win for the LGBTQ community. Just three days earlier the Trump administration removed discrimination protections for transgender individuals under the Affordable Care Act.
The landmark ruling by the Supreme Court states that Title VII of the Civil Rights Act of 1964, which bans job discrimination based on sex (as well as race, color, religion, or national origin), covers sexual orientation and transgender status.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” wrote Supreme Court Justice Neil Gorsuch in the majority opinion.
Gorsuch—President Trump’s first appointee to the high court—was joined by Chief Justice John Roberts, considered the swing vote on the high court, and the four liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Trump’s other appointee, Brett Kavanaugh, filed a dissenting opinion. Justice Samuel Alito also wrote a dissenting opinion and was joined by Justice Clarence Thomas.
HHS removes LGBTQ health care protections
The decision came down three days after the Department of Health and Human Services (HHS) finalized a rule to “restore the rule of law” and revise Section 1557 of the Affordable Care Act, which bans discrimination in health care, and rolled back protections for transgender people. The rule, which takes effect in mid-August, would protect males or females from health care discrimination, but not those who are gay or transgender. Section 1557 applies to those who receive federal funding from HHS, the Health Insurance Marketplace, and health programs administered by HHS.
In an announcement, HHS said the final rule eliminates provisions of the 2016 rule that “exceeded the scope of the authority delegated by Congress in Section 1557.” HHS said it will return to the government’s interpretation of sex discrimination according to the plain meaning of the word “sex” as male or female and as determined by biology. The final rule will allow HHS to enforce federal civil right laws prohibiting discrimination based on race, color, national origin, disability, age, and sex in health care. In addition, the department said the roll back will save roughly $2.9 billion in “unnecessary regulatory burdens” over five years by eliminating the mandate for regulated entities to send patients and customers excessive “notice and taglines” inserts in 15 or more foreign languages in almost every health care mailing, costs that get passed down to patients and consumers.
But the Supreme Court decision calls major parts of the final rule into question, wrote Katie Keith in a blog post for Health Affairs. “This will undoubtedly sow confusion about the rule’s future and what it means for providers and patients, particularly in the middle of a pandemic,” she said.
What happens next depends on the Office for Civil Rights at HHS. It could withdraw the final rule or clarify its interpretation of sex nondiscrimination. If it chooses to defend the decision in court, Keith expects it to be an uphill battle given the Supreme Court ruling.
Health care groups criticize final rule
Meanwhile, industry stakeholders worry that eliminating the protections could make it easier for health care providers to discriminate against gay and transgender patients.
“We resolutely disagree with any attempt to remove protections in federal law that prohibit discrimination based on gender identity, sex stereotyping, and pregnancy status,” said Matt Eyles, president and CEO of America’s Health Insurance Plans (AHIP), in a statement. “We also firmly believe that non-English speakers should have ready access to health information…Discrimination is wrong–period. Health insurance providers will continue to work with other health care leaders to eliminate barriers that stand between Americans who identify as a member of the LGBTQIA community and their better health.”
Susan R. Bailey, M.D., president of the American Medical Association, said in a statement that the federal government should never make it more difficult for individuals to access health care—during a pandemic or any other time."
In a comment letter issued last year, the AMA noted, "This proposal marks the rare occasion in which a federal agency seeks to remove civil rights protections. It legitimizes unequal treatment of patients by not only providers, health care organizations, and insurers, but also by the government itself—and it will harm patients. Such policy should not be permitted by the U.S. government, let alone proposed by it.”
Rick Pollack, president and CEO, American Hospital Association said the AHA also urged the administration to not move forward with changes to non-discrimination protections. “We are deeply disappointed that this rule weakens important protections for patients and could limit coverage. Treating all with dignity and respect will continue to guide us in everything we do,” he said.
The RISE Association applauded the Supreme Court decision but said HHS' decision on LGBTQ discrimination is a move in the wrong direction. "When our health plan and provider clients deliver health care to members enrolled under their care, they are held to public accountability for quality, outcomes, cost, and consumer satisfaction for all of them, not just those who identify with binary or biologically determined sexual identity. We want to be held accountable for this high level of performance for all of our members and cannot imagine relegating any class or cohort to a lower standard than the rest,” said Kevin Mowll, executive director of the RISE Association.