Federal Update: ACA and Gender Discrimination

September 2012 | Aaron Tax, SAGE

The news: The Affordable Care Act (ACA), President Obama’s Healthcare Reform Law, bars discrimination on the basis of gender identity and sex stereotyping, which may include discrimination based on sexual orientation.

The background: Earlier this year, the United States Department of Health and Human Services (HHS) issued a clarification of Section 1557 of the ACA, explicitly saying that Section 1557 of the ACA prohibits discrimination on the basis of gender identity and sex stereotyping in any health program or activity, any part of which is receiving federal financial assistance, or under any program or activity that is administered by an Executive Agency or any entity established under Title I of the Affordable Care Act or its amendments. 

The impact for LGBT older adults:

Any health program or activity that receives federal financial assistance, like Medicare and Medicaid, is covered, including long-term care, nursing home, and assisted living facilities, so long as they fit the aforementioned definition.

The impact on transgender individuals is relatively straight forward, but how does this impact lesbian, gay, and bisexual individuals?  The United States Equal Employment Opportunity Commission and the courts have been headed in the direction of ruling that claims of discrimination on basis of sexual orientation often have an inherent basis in sex and/or sex stereotyping, and if framed with respect to sex and/or sex stereotyping, may be covered. 

Note: SAGE does not provide legal advice or direct legal assistance.  For more information, speak with an attorney or with an organization that specializes in LGBT legal rights, including the ACLU or Lambda Legal.

Aaron Tax is the Director of Federal Government Relations for Services and Advocacy for GLBT Elders (SAGE), where he advocates for LGBT-inclusive federal aging policies that account for the unique needs of LGBT older adults. Until June 2011, Aaron Tax served as the Legal Director at Servicemembers Legal Defense Network (SLDN), the leading organization challenging “Don’t Ask, Don’t Tell” (DADT) in Congress and in the courts. A graduate of Cornell University (with honors and distinction) and the George Washington University Law School (with honors), he currently resides in Washington, DC.