The Affordable Care Act bans discrimination against transgender patients

When our client, Jakob Rumble, went to the emergency room of a Twin Cities area hospital in severe pain in June 2013, he experienced what 70% of transgender and gender-nonconforming individuals surveyed report about their treatment by health care providers — discrimination.

Jakob made a courageous decision to challenge the mistreatment and substandard care he received. He brought a lawsuit under a new federal civil rights law found in the Affordable Care Act (ACA) (sometimes referred to as “Obamacare”).  Section 1557 of the ACA prohibits sex, race, age or disability discrimination by health programs that receive federal funds.

In a historic decision issued this week — the first in the nation — a federal court in Minnesota ruled that Section 1557’s ban on sex discrimination includes discrimination on the basis of transgender status.

To interpret the new protection against sex discrimination in Section 1557, the court looked to precedent set by judges interpreting older civil rights laws such as Title VII of the 1964 Civil Rights Act, which forbids sex discrimination in employment. The court noted that the U.S. Supreme Court had “eviscerated” the narrow view of the term “sex” back in 1989, in a landmark Title VII case, Price Waterhouse v. Hopkinsand that courts increasingly interpret the term “sex” in Title VII to include all “individuals who are perceived as not conforming to gender stereotypes and expectations,” including transgender and gender-nonconforming individuals.

The court also confirmed the opinion of the Director of the Office for Civil Rights of the U.S. Department of Health and Human Services, which is charged with enforcing the new law.  He has stated that Section 1557 must extend to “claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.”

The new law and the court’s decision in Rumble create a powerful tool for addressing a widespread and well-documented problem – the frequency with which health care providers fail their transgender patients.  As Mr. Rumble noted in his Complaint:

  • A 2009 survey conducted by Lambda Legal found that 70 percent of transgender or gender non-conforming respondents reported experiencing discrimination in a health care setting. Mistreatment included being refused care (nearly 27 percent), being subjected to harsh language (nearly 21 percent), and experiencing physically rough or abusive treatment (nearly 8 percent).

  • In another national survey of over 6,000 individuals across all 50 states, high percentages of transgender respondents reported being denied equal treatment in doctor’s offices, hospitals, and emergency rooms. Over one-quarter (28%) reported verbal harassment and 2% reported physical attacks.

As a result of these experiences, many transgender individuals postpone or do not seek health treatment when they are sick or injured because they fear discrimination.

Effective enforcement of Section 1557 will help to correct this problem, ensuring that all patients are treated with respect and dignity and offered the same quality care, regardless of their gender identity or gender expression.  Recommended policies and training information are available to health care providers to help them meet this standard.

Mr. Rumble is represented by Jill Gaulding, Christy Hall, and Lisa Stratton of Gender Justice, and Katherine Barrett Wiik of Robins Kaplan LLP.

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