Outing the Invisible Poor: Why Economic Justice and Access to Health Care is an LGBT Issue

“Outing the Invisible Poor: Why Economic Justice and Access to Health Care is an LGBT Issue” (PDF) is reprinted with permission from the Georgetown Journal on Poverty Law and Policy, Volume XVII Number 3, Summer 2010.

Afterword

Since publication of the piece linked above in the Georgetown Journal on Poverty Law and Policy in 2010, the impact of health care reform has become clearer. Although only one provision in the Patient Protection and Affordable Care Act (ACA) specifically mentions the LGBT community, the impact on the community is, and will be, profound.¹ As discussed in the article, the best way of providing higher quality and more comprehensive coverage for LGBT individuals is to provide higher quality and more comprehensive coverage for society as a whole. Therefore, many provisions of health care reform, including some which have already been implemented, will provide greater coverage for LGBT individuals and families. For example, consistent coverage regardless of preexisting conditions will offer health insurance for those previously denied based on health conditions, including HIV and transgender status;² and coverage for youth on a parent’s insurance up to the age of 26 provides consistent health care for those whose parents have private coverage themselves.³ Additionally, the important and valuable Medicaid expansion and health exchanges will provide tremendous assistance to many low-income LGBT individuals upon implementation in 2014.⁴ As discussed in the article, Medicaid is already an important social safety net for LGBT individuals and families, and the forthcoming national expansion up to 133 percent of the federal poverty level will provide coverage for many low-income LGBT individuals who are currently without health insurance. The health exchanges will provide greater access to private health insurance coverage and health care for LGBT individuals, particularly as the LGBT community has lower rates of employer-sponsored coverage due to discrimination experienced in the employment arena. These provisions are important steps towards greater coverage for all individuals, including those who identify as LGBT.

As discussed in the above piece, general coverage alone is not sufficient to address the inadequacies of the US health care system on behalf of LGBT individuals and families. Provision of specific services, particularly transition-related services and general health care services for transgender individuals, as well as culturally competent care for all LGBT people, remain important to the provision of quality care to LGBT individuals. Fortunately, health care reform addresses some of these concerns, and advocates in both the health care and LGBT communities should continue to work towards LGBT inclusion in any further health care reform progress and ACA implementation. For example, although there is only one specific reference to the LGBT community, the ACA prioritizes cultural competency in several provisions,⁵ provides for quality improvement initiatives that address health disparities,⁶ and requires greater coverage of preventative care.⁷ Finally, HHS’s proposed regulations on the health exchanges include a nondiscrimination provision that prohibits discrimination in the health exchanges or by a qualified health plan issuer based on gender identity or sexual orientation. This protection covers, at the very least, marketing, outreach, and enrollment.⁸ However, it remains to be seen whether individuals will be able to enforce a final version of this provision in court.

Although the ACA is a step forward toward achieving greater health care coverage for LGBT individuals, many deficiencies remain. Health disparities remain a concern for LGBT individuals even after health care reform and are exacerbated for low-income LGBT individuals and LGBT individuals of color. Additionally, the many service related provisions discussed in the above piece are not addressed through health care reform, particularly as the Essential Health Benefits package, which will serve as the foundation for the state health exchanges, is developing with a focus more on state autonomy and cost as a driver for plan choices, than on the needs of the uninsured and underinsured population.⁹ Additionally, as discussed in the previous piece, affirmative, and discriminatory, restrictions on transgender-related and cross-gender care remain in effect, and access to assisted reproductive technologies is still minimal. Finally, the ACA’s general antidiscrimination provision does not explicitly include discrimination based on sexual orientation or gender identity.¹⁰

National health care reform is a tremendous accomplishment and should, if developed correctly, stand as a foundation for further progress and reform in terms of reaching the goal of health care coverage for everyone. However, the concerns raised in the piece remain: coverage is still not fully comprehensive, costs of care continue to spiral out of control, culturally competent care remains difficult to find, and millions will remain uninsured or underinsured even after implementation of the Medicaid expansion and health exchanges. The work of advocates from the health reform and LGBT communities is not done and the fight continues.

1. See Patient Protection and Affordable Care Act, Section 5306, amending 42 U.S.C. § 294e-1 (concerning participant diversity in mental and behavioral health education and training grants on grounds that include sexual orientation). [↩]
2. See Section 1101 [42 U.S.C. § 18001]. [↩]
3. See Section 2714 [42 U.S.C. § 300gg-14(a)]. [↩]
4. Several provisions of the Affordable Care Act, including the Medicaid expansion, are currently before the Supreme Court on review. The Court has scheduled argument for March 2012 with a decision forthcoming in June 2012. [↩]
5. See e.g. Sections 5301 [42 U.S.C. § 293k(b)(3)(I) (primary care training grants)]; 5306 [§ 294e-1(b)]; and 5307 [42 U.S.C. §§ 293e and 296e-1 (cultural competency, prevention, and public health and individuals with disabilities training)]. [↩]
6. See e.g., inter alia Sections 3011 [42 U.S.C. § 280j(a)(2)(B)(i) , (iii) and (viii) (specific reference to reducing health disparities)]; 3013 [42 U.S.C. § 299b-31(c)(2)(G) (regarding grants and contracts)]. [↩]
7. See e.g. Sections 4001 [42 U.S.C. § 300u-10]; 4002 [42 U.S.C. § 300u-11]; and 4103 [42 U.S.C. § 1395x]. For a more broad and detailed description of the ACA’s impact on the LGBT community, see Kellan Baker and Jeff Krehely, Changing the Game: What Health Care Reform Means for Gay, Lesbian, Bisexual, and Transgender Americans (PDF) (March 2011). [↩]
8. See Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans Proposed Rule, 76 Fed. Reg. 41866 (proposed Friday, July 15, 2011) (to be codified at 45 C.F.R. Parts 155 and 156), at 41914 and 41923 (Proposed Rules 45 C.F.R. §§ 155.120(c)(2) and 156.200(e) ). Similar provisions are not present in the proposed regulations on Medicaid expansion or other aspects of the health care reform regulations. [↩]
9. Section 1302 of the Affordable Care Act, requires the Department of Health and Human Services (“HHS”) to develop a list of benefits that must be offered by health care plans participating in the exchanges and Medicaid by 2014. Notably, pursuant to the ACA, when developing the Essential Health Benefits package, HHS is required to take into account the health care needs of diverse segments of the population, including women, children, persons with disabilities, and other groups. See Section 1302(b)(4)(C); 42 U.S.C. § 18022; see also Department of Health and Human Services Essential Health Benefits Bulletin (PDF), Center for Consumer Information and Insurance Oversight, December 16, 2011; National Health Law Program Letter to Secretary Kathleen Selebius (PDF), December 2, 2011. [↩]
10. Section 1557 [42 U.S.C. § 18116]. Nevertheless, in the employment (Title VII) and education (Title IX) contexts, courts have found that sex discrimination encompasses sex stereotyping, and, thus, discrimination based on one’s gender identity. See e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (establishment of sex stereotyping doctrine); Schroer v. Billington, 2009 U.S. Dist. LEXIS 43903 (D.D.C., Apr. 28, 2009); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Montgomery v. Independent Sch. Dist.No. 709, 109 F. Supp. 2d 1081 (D. Minn. 2000). [↩]