Health and Human Services Attorney: New Regulations Won’t Cover LGB Discrimination

Corey Prachniak is an LGBT rights, HIV policy, and healthcare attorney. He serves on the Steering Committee of the Network for LGBT Health Equity and tweets @LGBTadvocacy.

This is a series of posts covering Corey’s work in Puerto Rico for the Salud LGBTT conference.

Speaking at the Salud LGBTT summit, Fernando Morales – an attorney with the Department of Health and Human Service’s Office of Civil Rights (OCR) – said that new regulations will be coming this fall will not protect lesbian, gay, and bisexual people who face discrimination in healthcare on the basis of their same-sex attraction or orientation.

The Affordable Care Act’s Section 1557, for the first time in history, bans discrimination in healthcare on the basis of sex. Advocates have argued that if this is to be fairly applied, it should include LGBT people. Discriminating against someone because they’re attracted to members of the same sex, or don’t fit the stereotypes of what a man or woman should be because of their same-sex orientation, seems clear to many LGBT advocates to be sex discrimination.

Courts have grown more accepting of including transgender people in these protections, but have been reluctant to use sex discrimination laws to protect LGB people. (In fact, watch Terveer v. Billington, a federal case progressing now that this week seemed to be cutting our way.  Mr. Morales wasn’t familiar with the development of that case, so he could not comment on the question of its applicability.) However, OCR is not bound by this caselaw and has it within its authority to protect LGB people fairly.

However, Mr. Morales said today that OCR will not say that discriminating against someone because of their same-sex attraction is covered by the law. “Unfortunately, no, not at this time,” he said. “That is not covered under 1557.” I repeated Mr. Morales’s position back to him to make sure I had understood it correctly, and he affirmed that I was correct.

This seems to be breaking news, and heartbreaking news, for the LGBT community. If there is a silver lining, Mr. Morales said that gender identity-related discrimination will be included in the regulations. However, even there, how good of news this remains to be seen. Some in the department “want to go farther than others,” Mr. Morales said.

Stay tuned to the Network blog and my twitter account, @LGBTadvocacy, for more live coverage of the summit.