Healthcare Access Under the Law & LGBTQ+ Discrimination
Some strides have been made in the area of healthcare access, but many LGBTQ+ individuals continue to face discrimination, which compromises their health. The American Medical Association (AMA) ethics rules prohibit doctors from refusing to provide treatment based on sexual orientation or gender identity. However, LGBTQ+ individuals continue to face obstacles in obtaining insurance coverage, discriminatory attitudes and actions by healthcare providers, and coverage gaps.
Several states do have laws intended to protect LGBTQ+ patients from discrimination or refusal to treat. None of these laws have an exception based on religious beliefs, but some doctors continue to cite religious reasons as to why they won’t treat an LGBTQ+ patient. This issue may have to be resolved through litigation.
The passage of the Affordable Care Act (ACA) and the Supreme Court’s decision to legalize same-sex marriage in Obergefell v. Hodges are two steps that have improved access, and both may reduce the rate at which LGBTQ+ populations are uninsured.
The ACA increased coverage rates by expanding Medicaid and creating health insurance marketplaces in each state that are federally subsidized. Importantly, it prohibits discrimination on the basis of sexual orientation, gender identity, and health status. Insurers are not allowed to deny coverage, as they did previously, on the basis of a “pre-existing condition.” Accordingly, transgender individuals previously unable to get coverage due to insurers’ classification of their gender identity as a pre-existing condition are now technically able to get coverage. However, transgender individuals are more likely to have been low income and uninsured, and generally face greater challenges in obtaining health care than do lesbian, gay or bisexual patients.
Significantly, not all states have chosen to expand Medicaid. One in three LGBTQ+ individuals has an income below 400% of the federal poverty level. In states that have chosen not to expand Medicaid, this group remains disadvantaged.
The Obergefell ruling, however, helps the general LGBTQ+ population to obtain health insurance. Employers that offer health insurance as a benefit to those in opposite-sex marriages are now required to offer health insurance to employees in same-sex marriages as well.
Obtaining and asserting hospital visitation rights has been a significant struggle for the LGBTQ+ community. In 2010, the federal Department of Health and Human Services (HHS) issued anti-discrimination regulations. They clarified that patients should be able to designate visitors, and that these visitors should be allowed access regardless of whether they were in a legally recognized relationship.
HHS also called for guidelines that would include advance directives that could be used by LGBTQ+ people. Advance directives include healthcare proxies. These allow patients to designate visitation priority and allow them to authorize a certain person to make medical decisions on their behalf in case of incapacity. In spite of these changes, visitation rights have often continued to be denied to LGBTQ+ families, even in hospitals that accept Medicare and Medicaid insurance.
The ACA has a nondiscrimination provision, Section 1557, which applies to all hospitals and healthcare programs that receive federal funds. In spite of these legal changes, the scope of protection for same-sex couples has not been as clear as it should be and the regulations are often not properly enforced.
If you are in a same-sex relationship, even if you are married, you should make sure you and your partner have created advance directives in case of medical emergencies or a hospital stay. Although there are regulations in place to protect you and hospitals should recognize your rights as a spouse, discrimination continues to occur.
LGBTQ+ Legal Resource Center Contents