More on Policy and Legislation

Supreme Court upholds antidiscrimination protections for LGBTQ

The decision is separate from an HHS OCR final rule that ends nondiscrimination practices based on gender identity.

Susan Morse, Managing Editor

The United States Supreme Court on Monday ruled 6-3 that employers who fire employees for being gay or transgender are in violation of the Civil Rights Act.

The ruling was based on two cases involving gay men who were fired shortly after their employers learned that they were gay and one case of a transgender woman who was fired shortly after she informed her employer that she planned to live and work full-time as a woman, according to Fenway Health in Boston.

Two of the court's Republican appointees, Neil Gorsuch and John Roberts, joined the decision that affirmed antidiscrimination protections in the Civil Rights Act of 1964, including on the basis of sexual orientation and gender identity.

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The American Medical Association and 15 other health organizations had joined in an amicus brief to the Supreme Court urging support of antidiscrimination protections.

"We know that discrimination reinforces stigma and can have significant adverse mental and physical health outcomes," AMA president Dr. Susan R. Bailey said after the Supreme Court decision. "As physicians, and as leaders in medicine, we believe that LGBTQ+ individuals must be protected from workplace discrimination in order to prevent negative health outcomes."


The case is separate from an HHS Office of Civil Rights decision late Friday removing antidiscrimination protections around gender identity and sex stereotyping. The final rule is a revision of protections put into place under Section 1557 of the Affordable Care Act.

Providers have decried the decision

Dr. Bruce Siegel, president and CEO, America's Essential Hospitals said the administration has put the health and safety of vulnerable populations at risk and creates a climate for disparities in health and healthcare access.

Margaret A. Murray, CEO of the Association for Community Affiliated Plans, said HHS should withdraw the rule.

"Just this morning, the Supreme Court of the United States ruled that discrimination by employers on the basis of sexual orientation or gender identity is, necessarily, discrimination on the basis of sex," Murray said. "The Court's rationale must be extended to the healthcare system."


Section 1557 of the ACA is the nondiscrimination provision of the Affordable Care Act that prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities, according to HHS.

It builds on long-standing and familiar federal civil rights laws, including the Civil Rights Act of 1964.

It extends nondiscrimination protections to individuals participating in a health program or activity that has received funding from HHS, any health program or activity that HHS itself administers, and health insurance marketplaces, along with all plans offered by these issuers.

Section 1557 has been in effect since its enactment in 2010.

But in 2016, Section 1557 was challenged in the Northern District of Texas by Franciscan Alliance, a hospital system in Indiana and Illinois, which argued that its employees' religious beliefs would not allow them to perform medical transition procedures on transgender individuals that it believed would harm their patients, according to JDSupra. As a result of the challenge, the judge found against that regulations' interpretation of sex to include gender identity.

The final regulation was sent back to HHS to review.

On June 12, HHS OCR announced a final rule revising its Section 1557 regulations.


Fenway Health CEO Ellen LaPointe said, "Discrimination on the basis of sexual orientation and gender identity is a major public health concern. Discrimination in employment can limit or eliminate access to affordable healthcare insurance. It also correlates with negative health outcomes and intersects with discrimination on the basis of race, ethnicity, and other demographic factors, which exacerbates its harmful effects."

"The AMA supports everyone's access to quality, evidence-based healthcare regardless of gender or sexual orientation, and will continue to work diligently at the state and federal levels to expand access to medical services, reduce stigma in treating patients with unique needs and break down discriminatory barriers to care," said AMA president Susan Bailey.

"Essential hospitals embrace the fundamental principle that discrimination has no place in healthcare," Essential Hospitals CEO Bruce Siegel said.

Twitter: @SusanJMorse
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