OCR Enforcement under Section 1557 of the Affordable Care Act Sex Discrimination Cases

Section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, disability, or age in certain health programs and activities. The HHS Office for Civil Rights (OCR) is responsible for accepting and investigating complaints under Section 1557.

Section 1557 is the first federal civil rights law to prohibit sex discrimination in covered health programs and activities. Section 1557’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity. Below are a few case examples that highlight OCR’s enforcement results in complaints alleging sex discrimination.

• Brooklyn Hospital Center in New York entered into a formal voluntary resolution agreement with OCR to ensure that transgender patients receive appropriate and equitable care and treatment. The agreement resolves a complaint filed by a transgender individual alleging discrimination on the basis of gender identity in the assignment of patient rooms. The agreement requires the hospital to revise its admissions policy to include prohibitions against sex discrimination. For example during the intake process, patients are provided an opportunity to identity their preferred name and gender/transgender status. The hospital has committed to revising its room placement policy to ensure the safe, ethical, appropriate, and nondiscriminatory assignment of rooms for transgender patients. Additionally, the hospital will implement policies and train staff to prevent and address derogatory statements and adverse treatment based on sex. OCR will monitor the hospital for two years.

• A transgender individual alleged that the Colorado Women’s Wellness Connection Program denied coverage of her mammogram because she transitioned from male-to-female rather than female-to-male. The Wellness Program provides funding to health care facilities to cover mammograms and gynecological screenings for low-income and under-insured women throughout Colorado. The Wellness Program itself was funded primarily by the National Breast and Cervical Cancer Early Detection Program, administered by the Centers for Disease Control and Prevention (CDC). Under the Program, CDC’s position was to cover only individuals who were genetically female. OCR accepted the complaint for investigation because Section 1557 prohibits discrimination in health care programs based on sex, which includes gender identity. Subsequent to OCR’s investigation, CDC issued guidance for all its grantees, including the Wellness Program, to clarify that recipients of CDC’s grants can cover mammogram services for transgender women who have taken or are taking hormones. OCR confirmed that the Wellness Program adopted the CDC’s new guidance and formally notified all of its sub-grantees of the policy change.

• OCR received a complaint from a gay man with a disability who received transportation services for his doctors’ appointments from a private medical transportation provider in Georgia. The complainant alleged that multiple drivers harassed him because of his feminine gender expression. As a result of OCR’s investigation, staff, including drivers, received training on how to avoid sex stereotyping and usage of appropriate terminology. Quality and safety measures were also implemented to prevent discriminatory treatment.

• An individual alleged that he was denied the benefits of appropriate care and treatment at the Touro Infirmary Emergency Department in Louisiana after a domestic violence incident and that he was subjected to rude comments from hospital staff because he was a male victim of domestic violence. After OCR initiated an investigation, Touro revised its abuse protocol to provide gender-neutral procedures for reporting incidents involving domestic abuse. Touro also provided training to its emergency department staff on identifying and assessing victims of domestic abuse.

• The St. Bernard Medical Center in Arkansas had a policy and practice that treated married individuals differently on the basis of sex, which is prohibited by Section 1557. For example, the Medical Center automatically assigned a male spouse as the guarantor (sole financially responsible party) when a female spouse received medical services. However, when a male spouse received services, his female spouse would not automatically be assigned as the guarantor. As a result of OCR’s investigation, the Medical Center changed its billing practices to ensure equal treatment regardless of the sex of the patient.