WASHINGTON — Marking the 12th anniversary this week of the passage of the Affordable Care Act (ACA), the Human Rights Campaign (HRC) — the nation's largest lesbian, gay, bisexual, transgender and queer (LGBTQ+) civil rights organization — calls attention to the impact this legislation has had. It has improved access to health insurance for the LGBTQ+ community, especially Black and Brown members of the community, who have long been plagued by disproportionate difficulties in accessing health care and created nondiscrimination protections in the provision of health care and insurance.
As part of the Biden-Harris administration's observance of the anniversary, each day this week has been designated to have a particular focus on communities most affected by the enactment of the ACA. Today, Friday, March 25, was designated by the Department of Health and Human Services for "Celebrating Health of LGBTQI+ and Communities of Color."
"For 12 years now, the Affordable Care Act has been a powerful tool in fighting the historic disparities in access to healthcare for LGBTQ+ people — especially Black and Brown LGBTQ+ people — face," said JoDee Winterhof, Human Rights Campaign Senior Vice President of Policy and Political Affairs. "Unfortunately, while the gap has narrowed in that time, LGBTQ+ people continue to be less likely to have health insurance than the rest of the population. There is no good reason why a person's sexual orientation or gender identity should create obstacles to having insurance or receiving care. We appreciate that the Biden-Harris administration continues to take steps to decrease discrimination and eliminate these disparities."
According to HHS, the passage of the Affordable Care Act in 2010 has led to tangible benefits for LGBTQ+ people and people of color. In the 12 years since it was passed, the country has seen reduction in the uninsured rate among LGBTQ+ populations by about 50 percent; the law has provided coverage for about 4 million Latinos and 3 million Black people since it went into effect; and it has prohibited discrimination on the basis of a number of factors, including race, color, disability or sex.
According to HRC Foundation's analysis of the 2018 Behavioral Risk Factor Surveillance System (BRFSS), the nation's premier system of health-related telephone surveys, 17% of LGBTQ+ adults do not have any kind of health insurance coverage, compared to 12% of non-LGBTQ adults. Furthermore, 23% of LGBTQ+ adults of color, 22% of transgender adults and 32% of transgender adults of color have no form of health coverage. This can lead to avoidance of medical care even when medically necessary and to severe economic hardship when medical care is ultimately accessed.
An Opportunity for Greater Equity in Health Care
One pending rule change that stands to further improve access to healthcare for LGBTQ+ people is the expected revision to the regulation implementing Section 1557 of the Affordable Care Act that would provide clear protections on the basis of sexual orientation, in addition to the protections for gender identity already spelled out.
The Section 1557 rule, as implemented during the Obama administration and still in effect, currently prohibits most insurers from discriminating on the basis of sex — including gender identity — when providing health coverage. Discrimination on the basis of gender identity includes:
-Blanket exclusions on any transition—related healthcare services;
-The denial or limitation of coverage for services used for gender transition when those services would normally be covered when treating a non-transition related health condition; and
-The refusal to cover treatment that is typically associated with one particular gender, because an individual identifies with another gender or is listed as having another gender in their medical records or on a personal form of identification.
Section 1557 requires that providers treat individuals in a manner consistent with their gender identity, including in access to health care facilities and in receiving care. Wherever people are separated or labeled by gender, people are to be treated according to their self-identified gender. Section 1557 applies to all health programs and activities, any part of which receives any Federal financial assistance — including but not limited to physicians offices, hospitals, community clinics and nursing facilities.
In 2019, the Trump administration announced an impending rule change to Section 1557 that would have undermined protections for LGBTQ+ people. HRC sued in 2020 to block the rule from going into effect, arguing that the removal of protections against sex stereotyping and gender identity exceeded the administration's authority to define sex discrimination under the ACA and grossly would have undermined the law's primary goal of eliminating barriers and broadly expanding access to healthcare and health education programs.
The roll-back was blocked through a preliminary injunction issued in response to HRC's lawsuit, and in May 2021, the Biden administration announced that it would enforce federal policy to protect LGBTQ+ people from discrimination in health care based on gender identity and sexual orientation.
A History of Disparity
According to the Williams Institute at the UCLA School of Law, about 15% of LGBTQ+ people in the U.S. are uninsured, compared to 12% of non-LGBTQ+ people. The LGBTQ+ population is also more likely to be unemployed (9% vs. 5%) or to have an annual salary below $24,000 (25% vs. 18%), both factors that can make it difficult to obtain health insurance. In 2021, HRC called attention to a report from the United States Centers for Disease Control and Prevention (CDC) that showed LGBTQ+ people were more susceptible to the negative impacts of the COVID-19 pandemic, noting that 37% of LGBTQ adult smokers smoke every day compared to 27% of non-LGBTQ people; 21% of LGBTQ adults have had asthma, compared to 14% of non-LGBTQ people; and one in five LGBTQ adults aged 50 and above have diabetes.
Fear of discrimination causes many LGBTQ+ people to avoid seeking health care, and when they do enter care, studies indicate that they are not consistently treated with the respect that all patients deserve. Studies by Lambda Legal show that 56% of LGB people and 70% of transgender and gender non-conforming people reported experiencing discrimination by health care providers — including refusal of care, harsh language and physical roughness because of their sexual orientation or gender identity. According to a report by the National Center for Transgender Equality, 23% of transgender respondents did not see a doctor when they needed to because of fear of being mistreated as a transgender person and a startling 55% of transgender respondents who sought coverage for transition-related surgery were denied.
The Human Rights Campaign is America's largest civil rights organization working to achieve equality for lesbian, gay, bisexual, transgender and queer people. HRC envisions a world where LGBTQ+ people are embraced as full members of society at home, at work and in every community.
