Gender Identity and Sex Stereotyping Under the Affordable Care Act

Gender Identity and Sex Stereotyping Under the Affordable Care Act

Did you know that the Affordable Care Act (ACA) contains a civil rights provision? The ACA prohibits discrimination on the basis of race, color, national origin, sex, age or disability in certain health programs and activities. Despite becoming law in 2010, final implementation rules were not issued by the Department of Health and Human Services (HHS) until May 2016. On July 18, 2016, the Nondiscrimination in Health Programs and Activities final rule went into effect.

Under the ACA, individuals cannot be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any covered health program or activity on the basis of race, color, national origin, sex, age or disability. Though the final rule generally incorporates existing federal nondiscrimination laws and policies , provisions dealing with sex discrimination, primarily gender identity and sex stereotyping, are getting the most attention.

The final rule states that sex discrimination includes discrimination based on sex, pregnancy, childbirth and related medical conditions. Individuals cannot be denied health care based on their sex and women and men must be treated equally in terms of health care and insurance coverage. However, the final rule also prohibits discrimination on the basis of gender identity and sex stereotyping.

Gender identity is an individual’s internal sense of gender. It may be male, female, neither, or a combination of both. An individual’s gender identity may be different from the sex they were assigned at birth. A transgender individual is an individual whose gender identity is different from the sex assigned to that person at birth.

Sex stereotypes are stereotypical notions of masculinity or femininity. They include expectations of how individuals represent or communicate their gender to others and that individuals will consistently identify with and conform to stereotypes associated with their assigned gender. Sex stereotypes also include gendered expectations related to the appropriate roles of a certain sex.

According to HHS, categorical coverage exclusions or limitations for all health care services related to gender transition are discriminatory. Individuals must be treated in a manner consistent with their gender identity. Providers may not deny or limit treatment that is ordinarily or exclusively available to individuals of one gender because the person seeking treatment identifies as belonging to another gender.

The manner in which the final rule expanded the traditional scope of sex discrimination to include gender identity and sex stereotyping represents a fairly significant policy shift. However, HHS admits that the final rule does not resolve whether discrimination on the basis of an individual’s sexual orientation alone violates the ACA’s nondiscrimination provision. Nevertheless, HHS states that allegations of sexual orientation discrimination will be evaluated by the Office for Civil Rights to determine whether they involve the sorts of stereotyping that violate the ACA’s nondiscrimination provision.

Despite not being directly covered by the ACA’s nondiscrimination rules, many employers will be affected indirectly. Employers providing fully insured group health plans may be affected because their insurance companies are covered by the rule. Employers using a covered third-party administrator to manage their self-fund group plan may also be affected by the rule. Consequently, employers should have at least a basic understanding of the ACA’s nondiscrimination rules.

At Setnor Byer Insurance & Risk, we are committed to guiding you through the constantly changing health care landscape and offer a number of valuable risk management solutions to help you properly and efficiently manage your employee benefits, group health and business insurance programs.

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