Most recently, in Bostock v. Clayton County, the Supreme Court decided that the prohibition of discrimination in employment “on the basis of sex” in Title VII of the Civil Rights Act of 1964 also prohibits discrimination against individuals based on their sexual orientation or gender identity.
The Affordable Care Act included the Health Care Rights Law (Section 1557). It is the only federal law that bans discrimination on the basis of race, color, national origin, sex, age and disability specifically in health programs and activities that receive federal financial assistance, and it is the first federal law to prohibit sex discrimination in healthcare.
The implementing regulations, finalized in 2016, interpreted Section 1557’s ban on sex discrimination to include prohibitions on discrimination on the basis of sex stereotyping and gender identity. The 2016 Health Care Rights Law regulations also recognized intersectional discrimination, providing a new avenue to challenge discrimination under Section 1557 for LGBT older adults who experience discrimination in federal health programs and activities on the basis of multiple identities, such as gender identity, age and race.
The Push Back Against Progress
Unfortunately, the past ten years have also been met with persistent attempts to attack the rights of the LGBT community. In 2020, the Trump Administration eliminated these explicit protections for LGBT individuals in the Health Care Rights Law regulations. These rollbacks, along with removal of protections for limited English proficient older adults, undermine LGBT older adults’ rights and make it harder to seek redress from healthcare discrimination in court.
Other regulatory actions, such as expanding grounds for health and social services providers to deny services to LGBT individuals and proposals to permit homeless shelters to discriminate against transgender individuals when assigning housing, demonstrated the severe and ongoing hostility toward LGBT individuals.
The attacks continued in court, as well. Last fall the Supreme Court heard oral arguments in Fulton v. City of Philadelphia, a case challenging Philadelphia’s decision to end its contract with a social services agency that refused to certify same-sex couples as foster parents. And the effects of intersectional discrimination against LGBT individuals play out in the COVID-19 pandemic, too, with LGBT people of color twice as likely as white non-LGBT people to report testing positive for COVID-19.
That is why Justice in Aging has joined other advocacy partners in actions to undo these harmful changes and repair the damaging effects of this discrimination. We are challenging the rollbacks to the Health Care Rights Law in court and joined a brief with many other aging advocacy organizations in Fulton.