Section 1557 is the key nondiscrimination provision of the Affordable Care Act (ACA). It prohibits discrimination in health programs and activities receiving federal financial assistance, health programs and activities administered by the executive branch, as well as entities created under the ACA, including the Marketplaces and health plans sold through the Marketplaces. Section 1557 protects against discrimination on the basis of race, color, national origin (including language access), sex, age, and disability, and does so by building on existing civil rights laws. It is the first federal law to ban sex discrimination in health care.

Under the Obama administration, the U.S. Department of Health and Human Services (HHS) underwent an extensive, 6-year process to develop regulations for enforcing Section 1557. The Final Rule that it issued in 2016 provides that discrimination on the basis of sex includes discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping and gender identity. This was a major victory for LGBTQ people.

Unfortunately, the Trump administration is trying to roll back this victory by replacing the 2016 rule with a new one that would take away the explicit protections for our community. NCLR submitted comments opposing this harmful policy change.

In January of 2018, the U.S. Department of Health & Human Services (HHS) issued a proposed federal regulation that would allow widespread discrimination in health care delivery in the name of religious liberty. The rule would allow health care providers to refuse to treat someone if their refusal is based on a religious reason. NCLR submitted extensive comments opposing the rule, which was nevertheless issued in final form in May of 2019. A number of organizations and state and local governments sued HHS to prevent the rule from going into effect. NCLR filed amicus briefs in the litigation challenging the rule. The rule was struck down in court. The Trump Administration has appealed the orders vacating the rule.

NCLR is a member of the Federal AIDS Policy Partnership (FAPP), which is a national coalition of more than 120 local, regional, and national organizations advocating for federal funding, legislation and policy to end the HIV epidemic in the United States, and is active in the Structural Interventions Working Group.

URGENT ACTION: Tell Your Senators to Vote for the Equality Act!

The Equality Act (H.R. 5) would prohibit discrimination based on an individual’s sexual orientation or gender identity in employment, housing, credit, education, public accommodations (things like restaurants, hotels, and theaters), and jury service. It would also prohibit discrimination based on sex, sexual orientation, and gender identity in programs receiving federal funding. The bill was passed by the House of Representatives in the last Congress in May 2019 with a bipartisan vote of 236 to 173 but was blocked from consideration in the Senate by then-Majority Leader Mitch McConnell. The bill was reintroduced by Rep. David Cicilline (RI-1) and Sen. Jeff Merkley (OR) in the 117th Session of the United States Congress on February 18, 2021. A vote is expected in the House shortly, with action following soon after in the Senate.

NCLR has played a leading role in drafting the Equality Act and working for its eventual passage. We have partnered with Black and Pink and others to educate Congress and the public on the Act’s potential to reform the U.S. criminal legal system for LGBTQ people and people of color.

Currently, only 22 states have non-discrimination protections that fully protect LGBTQ individuals. According to the Center for American Progress, more than 1 in 3 LGBTQ Americans have reported facing some form of discrimination within the past year, with the number increasing to 3 in 5 for transgender individuals. This discrimination often causes substantial harm to the psychological and economic wellbeing of the LGBTQ community and creates undue difficulties for many LGBTQ people in accessing medically necessary healthcare – most dramatically for the transgender population and people of color.

The most recent polling from the nonpartisan Public Religion Research Institute (PRRI) shows that more than 80 percent of all Americans (including a majority of Democrats, Independents, and Republicans) support comprehensive nondiscrimination protections that include LGBTQ individuals. FiveThirtyEight has also similarly found that President Biden’s executive order mandating that federal agencies implement the Supreme Court’s ruling in Bostock v. Clayton County in nondiscrimination policies was the most popular of his early executive actions, with the support of an overwhelming 83% of Americans.

More than 600 national, state, and local organizations have signed on to urge the swift passage of the Equality Act, in addition to a broad coalition of faith-based groups and 335 major corporations, showing the breadth of support the legislation has maintained since its passage in the House in 2019. NCLR is a member of the Freedom and Opportunity for All coalition (along with 16 other partner organizations) advocating for the urgent passage of the Equality Act.

On October 7, 2015, California Governor Jerry Brown signed a landmark bill that protects transgender people who work for companies doing business with state agencies.

Senate Bill 703, authored by California State Senator Mark Leno, prohibits state agencies from entering into a contract in the amount of $100,000 or more with a contractor who discriminates in the provision of benefits based on an employee’s gender identity.

SB 703, which went into effect on January 1, 2016, expands existing enforcement provisions in California contracting law by adding requirements that the Department of General Services provide a web based database listing all contracts subject to this provision, and establish a method for receiving, investigating, and resolving complaints of non-compliance.

SB 703 levels the playing field in state contracting between in-state and out-of-state companies while also ensuring that state tax dollars are used in a cost-effective manner and do not go to companies that discriminate.

The bill was co-sponsored by NCLR, Equality California, and the Transgender Law Center.

The 2010 Patient Protection and Affordable Care Act (ACA) has been a critical piece of legislation for expanding access to health care, including for the LGBTQ community. One of its critical features is a statutory prohibition on discrimination in health care based on sex. NCLR advocated extensively with the U.S. Department of Health and Human Services (HHS), the federal agency that enforces these protections, to ensure that sexual orientation and gender identity are included within the scope of the ACA nondiscrimination rule. In 2016, HHS issued a rule specifying that it would indeed interpret the nondiscrimination provision as covering LGBTQ people.

Unfortunately HHS under the Trump administration has taken a different view, and is in the process of seeking to change the regulations to take away some of the explicit protections for sexual orientation and gender identity. NCLR filed extensive comments in the record opposing these changes and is continuing to monitor developments in this area.

It is important to note that while HHS can make changes to its regulations, it cannot change the underlying statute, which still contains the prohibition against sex discrimination. Some courts have interpreted the statute to include sexual orientation and gender identity regardless of what HHS does. If you experience discrimination in health care due to your sexual orientation or gender identity you still have the ability to take legal action.

On February 27, 2019, Representative Pramila Jayapal (WA) introduced the Medicare for All Act of 2019 (H.R.1384/S.1804) to establish a national health insurance program to combat the high costs of healthcare and health-related services for all U.S. residents. The Medicare for All Act would provide guaranteed access to affordable healthcare for all persons living in the U.S. Establishing an universal healthcare system is a top priority for LGBTQ people, because they are less likely to have health insurance than non-LGBTQ people.

California fertility service providers are permitted to offer people seeking to conceive using a known sperm donor access to certain fertility services on the same terms as different-sex couples under Assembly Bill 2356 (2012), which went into effect January 1, 2013. This bill was authored by Assemblymember Nancy Skinner and co-sponsored by Equality California and the National Center for Lesbian Rights.

Increasingly, women in same-sex couples, transgender people, and single women are asking trusted friends to act as sperm donors in order to conceive a child. California was the first state to legally recognize that people may use known donors (not just anonymous sperm donors) to conceive a child.

However, people using known donors could not access the same fertility services as women in different-sex relationships. Different-sex couples can have insemination services using fresh sperm. Known donors’ sperm must typically be frozen and quarantined for six months. Insemination using fresh sperm is more effective and less costly.

AB 2356 allows providers to provide insemination services using fresh (unfrozen) sperm to people using known donors. Providers are not required to offer this service, but this law clarifies that they may offer it.

The National Center for Lesbian Rights was a lead partner with the Department of Health and Human Services (HHS) on the development of the administration’s historic Hospital Visitation Rule. The Rule came at the direction of President Obama who urged HHS to identify ways to protect the hospital visitation rights of all patients through policy change. NCLR worked closely with HHS on the final rule, which guarantees equal treatment in hospital visitation to all patients and their loved ones regardless of sexual orientation, gender identity, biological relationship, or marital status. Subsequent to the introduction of that Rule in 2011, we have worked closely with HHS on implementation. We co-hosted a webinar with HHS, which provided education on the impact of the Rule and “Best Practices‚” for working with the LGBTQ community. We continue to work with HHS to clarify that this Rule also applies to nursing homes and hospice facilities.