EDITOR’S NOTE: This is the third article in the series on the Obama administration’s campaign to enroll lesbian, gay, bisexual and transgender citizens in Obamacare, which forces private insurers to cover the high-risk population by distributing the burden to other citizens and away from government. The first story reported the indications the White House has an unspoken agenda of lifting the financial burden from a demographic that overwhelmingly votes Democrat. The second story documented how the disproportionate costs for LGBT health care are being moved to the backs of healthy citizens.
NEW YORK – Obama administration arguments for the Affordable Care Act as well as the exact language of the legislation suggest the Obamacare law advances a political agenda designed to convey equal protection under U.S. law for LGBT lifestyle choices.
In implementing the Obamacare legislation, LGBT political activists in conjunction with the Obama administration advance the theme that LGBT individuals are victims who receive inferior health care and are denied access to adequate health insurance because of prejudice and discrimination.
The solution, then, is specific language crafted within the law to establish the LGBT lifestyle as a constitutional “right” fully protected by the 14th Amendment, in order to provide community members with access to health care and health insurance adequate to pay for the medical care required.
LGBT portrayed as ‘victims’
Lambda Legal, a tax-exempt 501(c)3 organization claiming to be the nation’s oldest and largest legal organization working for the rights of the LGBT community, including those infected with HIV/AIDS, published in 2010 the results of an admittedly non-scientific study in a final report entitled “When Health Care Isn’t Caring.”
Claiming the survey conducted in the spring of 2009 was “the first to examine refusal of care and barriers to health care among LGBT and HIV communities on a national scale,” Lambda Legal came to two major conclusions:
- LGBT people and people living with HIV are too often denied the care they need because of their sexual orientation, gender identity and/or HIV status.
- LGBT people and people living with HIV are frequently treated in a discriminatory manner while trying to obtain care, including providers using harsh language, refusing to touch patients and blaming them for their health status.
In defining “health care fairness,” Lambda Legal identified the following as key components:
- Privacy and confidentiality for all, including LGBT people and those living with HIV;
- Recognition and respect for all families including same-sex couples and their children;
- Equal access to affordable health care insurance for same-sex spouses, partners and their children, and elimination of discriminatory insurance policy exclusions for transgender care, reproductive health care or care based on HIV status;
- Fair and comprehensive health care services for LGBT youth and adults in custody as well as those living with HIV;
- Informed consent for HIV testing;
- Protection of the rights of LGBT patients and those living with HIV to seek and obtain all medically appropriate care without restrictions based on the personal or religious views of providers;
- Equal access to mental health and substance abuse treatment and services for LGBT people and people with living with HIV; and
- Fair and compassionate services for LGBT seniors and older people living with HIV.
The Lambda Legal report concluded by calling for the establishment of U.S. federal policies that “prohibit bias and discrimination based on sexual orientation, gender identify and expression and HIV status including refusal of care, disrespectful or abusive treatment, the use of excessive precautions and blaming patients for their health conditions.”
A Center for American Progress 2009 report entitled “How to Close the LGBT Health Disparities Gap” concluded “members of the LGBT population continue to experience worse health outcomes than their heterosexual counterparts. Due to factors like low rates of health insurance coverage, high rates of stress due to systematic harassment and discrimination, and a lack of cultural competency in the health care system, LGBT people are at a higher risk for cancer, mental illnesses, and other diseases, and are more likely to smoke, drink alcohol, use drugs, and engage in other risky behaviors.”
LGBT accusations of health insurance discrimination
LGBT political advocacy groups typically have charged the health insurance industry with discrimination because risk-based health underwriting excludes HIV/AIDS infected individuals from coverage and calls for higher premiums from those known to be participating in a high-risk LGBT lifestyle.
Health insurance industry executives traditionally argue actuaries determining pricing must take into consideration the higher heath risks incurred by the LGBT community, including the continuing link established by Centers for Disease Control research that the principle cause of HIV/AIDS infection in the United States continues to be men having sex with men.
The federal government website AIDS.gov documents that “currently, fewer than one in five (17 percent) of people living with HIV has private insurance and nearly 30 percent do not have any coverage.”
Most HIV/AIDS infected people in the United States, according to AIDs.gov, rely upon Medicaid to pay the cost of health care for low-income HIV/AIDS infected individuals, while Medicare provides for seniors and those with disabilities, and the Ryan White HIV/AIDS program provides funding for the health and social services required by the HIV/AIDS affected population.
Because federal government surveys traditionally have not included questions asking respondents to identify their sexual orientation or gender identity, researchers do not have a precise or reliable estimate of the percentage of the LGBT community that lacks private health insurance.
The clearest denial of private health insurance that has been documented involves transgender people.
“Due to the way that most health insurance contracts are written, transgender people can be denied health insurance coverage, often irrespective of whether those needs are related to transitioning,” notes the Human Rights Campaign, which is a private tax-exempt 501(c)4 organization founded in 1980 that claims to be the largest civil rights organization working to achieve equality for the LGBT community.
“Not all transgender people have the same medical needs – they may have already transitioned, or they may not transition at all. Transgender people may even be denied medical treatment as fundamental as mental health counseling, which can lead to stress, depression, suicide attempts, poor work performance and over-utilization of unrelated services and benefits that do not address the root causes of a person’s health status.”
The Human Rights Campaign identifies the following issues of alleged discrimination in health insurance coverage for transgender individuals:
- Denial of health insurance coverage, where someone is denied any health insurance on the basis of gender identity. The Transgender Law Center has documented cases in which health insurance companies and medical providers have denied coverage to transgender people when they became aware of an applicant’s transgender status or prior treatment and medical history related to gender transition. In 2007, the American Medical Association declared its opposition to this practice.
- Denial of coverage for claims related to gender transition, including claims arising from complications from medical treatment for gender transition.
- Denial of coverage for claims for gender-specific care based on the person’s gender marker on insurance. For example, a male-to-female person who develops prostate cancer, or a female-to-male person who develops ovarian cancer.
- Denial of coverage for claims unrelated to gender transition. For example, an insurer argues that a medical concern is the direct or indirect result of transgender-related treatment such as hormone therapy.
Another common complaint in the LGBT community is that the federal government traditionally has not allowed same-sex couples as dependents in order to get employer-sponsored health care coverage extended to LGBT same-sex spouses on terms equal to the ability of employees in heterosexual marriages to name their spouses as covered in employee-sponsored health insurance.
ACA Section 1557
The LGBT “right” to equal protection in health care is established in the language of Section 1557 of the Affordable Care Act.
“Section 1557 of the Affordable Care Act prohibits discrimination in health care programs on the basis of race, color, national origin, sex, sex stereotypes, gender identity, age, or disability,” notes the National Women’s Law Center, a Washington-based private corporation organized “to advance and protect women’s legal rights.”
“This is the first time that federal law has prohibited sex discrimination in health care. Health insurers, hospitals, the health insurance exchanges, and any other entities that receive federal funds are covered by this law. It became effective upon passage of the ACA. Section 1557 gives the Department of Health and Human Services’ Office for Civil Rights the authority and obligation to investigate potential violations of the law and enforce this new civil rights guarantee.”
Section 1557 of the Affordable Care Act reads as follows:
Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section 504, or such Age Discrimination Act shall apply for Age Discrimination Act shall apply for purposes of violation of this section.
Clearly, the language of Section 1557 places LGBT discrimination within the context of Title VI of the Civil Rights Law of 1964, a law that prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal funding assistance.
In a slide presentation entitled “Out2Enroll: The Affordable Care Act and the LGBT Communities,” prepared for the White House briefing on Obamacare and the LGBT community held on Sept. 12, 2013, the Johns Hopkins Bloomberg School of Public Health stressed the matrix of legislation that places Section 1557 front and center in defining LBGT health care under the Affordable Care Act. It places HIV/AIDS health coverage within the umbrella of legislatively conferred civil rights that arguably will derive Fourteenth Amendment protection.
“Discrimination,” Johns Hopkins Bloomberg School of Public Health, ‘Out2Enroll: The Affordable Care Act and the LGBT Communities,’ White House briefing, Sept. 12, 2013
A subsequent slide in the Johns Hopkins White House presentation proclaims the United States is in a “Post-DOMA” [Defense of Marriage Act] environment in which same-sex marriages “must” be treated under the Affordable Care Act identical to heterosexual married couples, despite the fact same-sex marriages are not legally recognized today in all states.
“Nondiscrimination and Same-Sex Couples,” Johns Hopkins Bloomberg School of Public Health, “Out2Enroll: The Affordable Care Act and the LGBT Communities,” White House briefing, Sept. 12, 2013
A subsequent slide in the Johns Hopkins White House presentation makes clear that “equal coverage” will apply to transgender people, as well as to same-sex couples, under the Affordable Care Act.
“Equal Coverage for Transgender People,” Johns Hopkins Bloomberg School of Public Health, “Out2Enroll: The Affordable Care Act and the LGBT Communities,” White House briefing, Sept. 12, 2013
Fenway Health, a Boston-based 501(c)3 organized to promote issues of LGBT health, makes clear the current battlefield for getting LBGT health a protected civil right involves HHS rule-making under the Affordable Care Act.
On Sept. 30, 2013, noting that 29 states do not have a sexual orientation nondiscrimination law and 34 states do not have a gender identity nondiscrimination law, the Fenway Institute submitted public comment to HHS urging the department “to issue a nondiscrimination provision to ensure LGBT Americans’ access [to] nondiscriminatory health care in all settings, regardless of sexual orientation or gender identity.”
This followed a HHS request published in the Federal Register on Aug. 1, 2013, requesting comments regarding rulemaking under Section 1557 of the ACA.
While HHS has yet to promulgate ACA nondiscrimination rules, most observers expect the final language to move another step toward codifying LGBT heath rights under the ACA as constitutionally protected rights.
“In addition, Section 1557 of the Affordable Care Act gives HHS a key tool to make sure that all people receive equal access to health care. It is one of the many sections of the Affordable Care Act intended to reduce disparities in the health care system, and is an integral part of the law’s overall goal to expand access to health care for all Americans,” wrote Leon Rodriguez, J.D., director, Office for Civil rights, U.S. Department of Health and Human Services, on the U.S. government’s AIDS.gov website at Blog.AIDS.gov, on Sept. 25, 2013
“This landmark civil rights provision makes it illegal to discriminate against people because of their race, color, national origin, sex (this includes discrimination based on gender identity or the failure to conform to sex stereotypes), age, or disability in most health care settings (such as hospitals or clinics). Section 1557 also applies to the newly created Health Insurance Marketplaces established under the Affordable Care Act. Section 1557 will help ensure that newly eligible individuals have equal access to health care benefits, including health insurance, made possible through the Affordable Care Act.”