Discrimination in the provision of health services has a long tawdry appalling history in the Unites States. The book "Health Care Divided, Race and Healing a Nation” by David Barton Smith, thoroughly covers that history prior to 1964 and perhaps beyond as well. I am not going to go back quite that far.
The first FB item that got my attention was a posting from a health care worker (and also member of a royal court) discussing her experience in showing other staff how to treat a person going through gender transitioning with dignity and respect at a private non-profit health care clinic. The other item was a link to the advocacy organization Human Rights Campaign Fund soliciting comments to HHS/OCR regarding a proposed regulation the drafting of which started as my career was ending. I will discuss that period and my thoughts, which may slightly diverge from the HRCF's view, in a moment. But first to demonstrate the importance of this issue and of the greatest number of people possible submitting comments on your view of nondiscriminatory access to health care services for all and the proposed regulation I am including the link to the proposed HRCF comments and form right here. You don't have to read what I think; you can stop and fill out your opinion now.
https://secure3.convio.net/hrc/site/Advocacy?cmd=display...
You may also, however, submit your comments directly to HHS without going through HRCF here -
http://www.regulations.gov/#!submitComment;D=HHS-OCR-2015-0006-0001
or after reviewing info here
http://www.regulations.gov/#!docketDetail;D=HHS-OCR-2015-0006
Comments are due by November 9, 2015. Briefly, when Congress passes and the President signs a law, the appropriate federal agency issues specific regulations to enforce the law. Once the agency drafts the proposed regulation, it is published in the Federal Register so the public may view and comment on it. After the comment deadline, real people in DC read each and every comment, summarize and categorize them, determine whether to amend or change any part of the proposal, then the Department publishes the final regulation in the Federal Register along with a summary of the comments, and the reasons for any changes made or considered and rejected. Then the Department begins enforcement. It is a lengthy process. But your comment is read and each one is significant, especially if many present a common view, such as the HRCF is urging. At the end of this article, I am going to post links to the proposed regulation, Qs and As, FAQs, TA information, and links to other documents or information you may find of interest on OCR's site.
Since my view and understanding of case law is based on my experience and informs my view of comments that I am considering, I want to provide some historical background first. This is also necessary because as you will see there is a tremendous and unexpected irony that I myself faced at the end of my career and addressed in my very last public presentation on OCR's enforcement of regulations prohibiting discrimination and OCR's complaint process to an advocacy organization transitioning to a health services provider consistent with the reforms authorized by the Affordable Care Act - an organization staffed in part by and whose primary mission is to serve Asian-Pacific Islander-Americans with or at risk for HIV/AIDS including persons identifying as gay or gender nonconforming or transgender. it is a question I had to face that HRCF's notice directly raises - how did we get to this point where discrimination based on gender status or nonconformity is prohibited but discrimination based on sexual orientation is not?
Way back when I first started, I hoped that before I retired Congress would pass and OCR would be authorized to enforce laws prohibiting discrimination based on sexual orientation. For a while it did not seem to be an unrealistic expectation. Support for gay rights was increasing and far more bipartisan than it is today. It seemed that with each session of Congress passage of the proposed Employment Non Discrimination Act (ENDA) seemed a little closer. Then life interrupted. I became involved in issues relating to HIV related discrimination, achieving national expertise within OCR and for awhile speaking at conferences around the country. Eventually someone wondered why an agency with 10 regional offices had only one guy who could speak on the issue. Advocates in Region IX where I worked were marveling that OCR was issuing violation findings on complaints they filed while advocates in many other regions were marveling that OCR was issuing findings of compliance. Training was in order and after another 2 or 3 years of struggle completed so that each regional office could address HIV discrimination with competent expertise and my national touring days were over.
I wrote a lot more on my experience in OCR that is posted elsewhere on my blog mostly on the "Career" page but also the "Politics and Government Page" that is not directly relevant to discuss here. Eventually as I became more informed and got to know more legal experts and advocates I realized ENDA did not cover the provision of services. And its support was actually decreasing among Republicans and passage looked more and more distant. Although I understand more now how it occurred, i remain like many of you shocked that same sex marriage has been legalized before discrimination has been prohibited. And what is the value of sanctioned marriage if it results in losing employment and/or housing? And as i have been doing since I could talk, i started asking lots and lots of questions in particular about why advocates were seeking new laws to prohibit discrimination based on sexual orientation, which would have to be passed to cover employment, access to services, and public accommodations across a broad range of areas, rather than simply amending the Civil Rights Act of 1964 to include sexual orientation.
Turns out civil rights
advocates did not want to equate discrimination based on race with
discrimination based on sexual orientation. Now that's a loaded issue I
am not going to get bogged down in with the exception of some broadly
agreed upon caveats - gay people as a class were not enslaved by the
majority nor were subject to mass and regular lynching. I especially do
not want to discuss "passing" either with respect to light skinned
Blacks or gender conforming gays. But the other caveat is that
discrimination is wrong and must be prohibited in all instances
consistent with the Equal Protection Clause of the Constitution. I
don't think it's necessary to discuss or agree on much more than that.
Now as I see it, ENDA is on life support. And tremendous progress has
been made in achieving coalitions and common ground among traditional
civil rights advocates representing persons of color and persons who are
gay, lesbian, or gender non-conforming or transgender. Some LGBT
advocates, and I am in strong agreement with them, believe we should
drop ENDA and work on amending The Civil Rights Act of 1964 to include
sexual orientation. That would be simplest, most effective, and most
fair, and most consistent with Constitutional values. Some traditional
civil rights advocates may object, but I believe it will come down to a
generational divide and those objecting may risk losing their office.
The time has come to amend the CRA.
Now what of discrimination regarding gender conformity and status? Certainly I would not object to including it as well in the CRA and so do many others. But just as unexpected as legalization of same sex marriage have been advances on this issue in widely accepted case law. Over the past number of years, Federal courts have issued rulings that have been widely accepted finding that the term sex when applied to discrimination incorporates gender status and nonconformity. Rather than objecting, the federal Equal Employment Opportunity Commission and the US Department of Justice, Civil Rights Division have concurred with such findings. So today it can be said that Federal law prohibits discrimination against persons identifying as transgender. So whether it is necessary to include gender status in an amended CRA is an open question.
Now what of sexual orientation - is that also incorporated within the definition of sex discrimination. Therein lies the controversy. HRCF seems to assert that courts have ruled that it does. I am not aware that they have. And if they have, does CRA need to be amended or ENDA adopted? Why aren't Federal agencies such as EEOC and DOJ presently forbidding discrimination based on sexual orientation. Having relieved my brain of the above and developed my thoughts to this point, I need to take a break and informed by my review of the above, read again what HRCF, says what the law states, what the regs say and all the background info on OCR's site. I will return with my conclusion in Part 2, which will discuss whether Affordable Care Act and case law cover sexual orientation and the affect thereof on the proposed regulations.
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