WHAT IS SECTION 1557

Section 1557 of the Affordable Care Act is a federal law that prohibits discrimination in healthcare based on various protected characteristics, including sex. In April of 2024, the U.S. Department of Health and Human Services (HHS) issued new regulations to formally interpret that provision to protect people like you against discrimination in healthcare based on sexual orientation and gender identity.

Section 1557 has a broad reach, covering the various recipients of HHS’s federal funding—including but not limited to most physicians, hospitals, community clinics, nursing facilities, and even health insurance companies—as well as facilities run by HHS itself. The new rules also make clear that certain government programs are also covered, including under Medicare, Medicaid, and Programs of All-Inclusive Care for the Elderly (PACE).

WHY DO THESE DISCRIMINATION PROTECTIONS MATTER TO LGBTQ+ PEOPLE?

LGBTQ+ people—and especially transgender people—face increasingly stark disparities in their health and well-being when compared to non-LGBTQ+ people. Research shows that these differences can be explained in part by persistent and systematic discrimination that LGBTQ+ people continue to face in all aspects of public life, including in healthcare settings where they are often denied necessary care specifically because of who they are.

• For example, recent data from the 2022 U.S. Transgender Survey shows that nearly one-half (48%) of respondents who saw a health care provider within the last 12 months had at least one negative experience because they were transgender, such as being refused health care, being misgendered, or experiencing physical violence or abuse.

Because of their experiences with healthcare discrimination, LGBTQ+ people from all walks of life have long reported postponing preventative care—leaving themselves at higher risk for avoidable illnesses.

Fortunately, these new rules recognize that existing discrimination protections extend to people of all sexual orientations and gender identities. This includes transgender, non-binary, and other gender non-conforming people who are currently facing an onslaught of efforts to ban their access to best practice medical care across the states.

And because Section 1557 includes protections against other types of discrimination, such as age and disability, these rules can especially help protect access to care for LGBTQ+ elders, people living with HIV, and others in our communities with ongoing health needs.

WHAT FORMS OF DISCRIMINATION ARE COVERED BY THESE NEW RULES?

• Fundamental Access to Care: the rules prohibit covered entities from turning you away from basic medical care because they do not like or agree with you being LGBTQ+. Similarly, they cannot deny you care because they believe your medical problems are deserved or a result of you being LGBTQ+ or living with HIV.
• Access to Separated Facilities: the rules require that you be treated consistent with your gender identity, meaning that in bathrooms and wherever else people are separated or labeled by gender, you must be treated according to your self-identified gender. HHS has also clarified that non-binary people cannot be excluded from programs or facilities that separate patients based on being male or female.
• Harassment: the rules protect your right to access care free from harassment. This includes being verbally or physically abused by providers and staff. While covered entities are allowed to inquire about your gender identity and sex assigned at birth if it is relevant to assessing or treating you, the rules clarify that unwelcome, irrelevant, or repeated questioning can rise to the level of illegal harassment.
• Prohibiting Exclusionary Practices: under the rules, a covered entity that elects to provide or cover services to some patients but categorically denies them to others based on their protected identity is likely engaging in illegal discrimination. This means that fertility providers must serve same-sex couples, and that providers offering services associated with gender-affirming care to some patients must provide them to all.
• Denials of Insurance Coverage: the new rules seek to ensure access to transition-related medical care by clarifying that insurance companies:
  • Cannot create blanket exclusions on any transition–related healthcare services;
  • Cannot deny or limit coverage because a treatment is related to your gender transition;
  • Cannot deny or limit coverage for services used for gender transition when those services would normally be covered when treating a non-transition related health condition; and
  • Cannot refuse to cover treatment that is typically associated with a particular gender simply because you identify with another gender or are listed as having another gender in your medical records or on a personal form of identification.

WHAT SHOULD I DO IF I HAVE BEEN DISCRIMINATED AGAINST?

If you feel as though you have experienced discrimination by a covered healthcare entity, you have a right to seek recourse under these new rules. You should not wait to begin this process and are encouraged to file a complaint through HHS or on your own as soon as possible.

• HHS is formally charged with enforcing Section 1557 and these new rules, and its Office for Civil Rights has staff available to review and investigate your complaint.
  • Please visit https://www.hhs.gov/civil-rights/filing-a-complaint/index.html to learn how to file a civil rights complaint with HHS.
• Additionally, HHS has made clear that you have the right to file your own lawsuit against covered entities that violate these non-discrimination protections.
  • If you need help being connected to an attorney, please fill out our intake form at https://human-rights-campaign.mycase.com/contact_us/i9YyDEwyCYPvstG4NHUYF9sz.

For more work that HRC is doing in the healthcare arena, please visit
hrc.org/health-aging.