The rule of law is the most advanced method of self-government humankind has developed throughout history to avoid mob rule or the kingdom of the individual, each for self, power to the strongest, most armed richest. It's not perfect, it's complex and it's evolving.
As explained above, when a law is passed an agency in the executive branch is required to enforce it as written by issuing regulations for clarity. The proposed rule discussed herein is Section 1557 of the Affordable Care Act. Section 1557 is the first federal civil rights law that bars sex discrimination in federally funded health care, As I explained above, case law has established that sex discrimination covers gender identify and nonconformity. The ACA however does not explicitly prohibit discrimination based on sexual orientation. HHS must enforce what exists, no more no less. HRC is asserting that sex discrimination also covers discrimination based on sexual orientation. Despite its assertion, that is an open question at best. I searched but could not find any information on this matter explaining the basis for its assertion on its web site. All I have to go on in trying to understand their assertion is the request for comments I linked.Therein, HRC states: "Numerous federal courts and the Equal Employment Opportunity Commission have determined that discrimination on the basis of sexual orientation is sex discrimination under federal law." However, I can find no basis for that statement on its site or elsewhere, it simply provides no documentation to support its assertion. Perhaps it thinks it too complicated too understand. HRC correctly asserts that unless HHS determines that sex discrimination covers sexual orientation, the ACA does not prohibit discrimination based on sexual orientation. The fact is the ACA does not prohibit discrimination based on sexual orientation; to include such a basis would violate the Constitutional doctrine of separation of powers in effect for over 200 years. Congress has the authority to pass legislation in the ACA or separately prohibiting sexual orientation discrimination without which federal agencies cannot prohibit it unless Courts find otherwise.
HHS, however, is so concerned with discrimination based on sexual orientation that it addresses the matter in the proposed rule despite no explicit provision in the law as follows:
"The proposed rule makes clear HHS’s commitment, as a matter of policy, to banning discrimination based on sexual orientation and requests comment on how a final rule can incorporate the most robust set of protections against discrimination supported by the courts on an ongoing basis.
As a matter of policy, we support banning discrimination in health programs and activities not only on the bases identified previously, but also on the basis of sexual orientation. Current law is mixed on whether existing Federal nondiscrimination laws prohibit discrimination on the basis of sexual orientation as a part of their prohibitions of sex discrimination. To date, no Federal appellate court has concluded that Title IX's prohibition of discrimination “on the basis of sex”—or Federal laws prohibiting sex discrimination more generally—prohibits sexual orientation discrimination, and some appellate courts previously reached the opposite conclusion. (22)
However, a recent EEOC decision concluded that Title VII's prohibition of discrimination “on the basis of sex” precludes sexual orientation discrimination because discrimination on the basis of sexual orientation necessarily involves sex-based considerations. The EEOC relied on several theories to reach this conclusion: A plain interpretation of the term “sex” in the statutory language, an associational theory of discrimination based on “sex,” and the gender-stereotype theory announced in Price Waterhouse. (23) The EEOC's decision cited several district court decisions that similarly concluded that sex discrimination included sexual orientation discrimination, using these theories. (24) The EEOC also analyzed and called into question the appellate decisions that have concluded that sexual orientation discrimination is not covered under Title VII. The EEOC decision applies to workplace conditions, as well as hiring, firing, and promotion decisions, and is one of several recent developments in the law that have resulted in additional protections for lesbian and gay individuals against discrimination. (25)
The final rule should reflect the current state of nondiscrimination law, including with respect to prohibited bases of discrimination. We seek comment on the best way of ensuring that this rule includes the most robust set of protections supported by the courts on an ongoing basis."
Legal experts can disagree with the assessment expressed above by HHS and HRC as is its right has chosen to do so. After again reading OCR's position as stated above, I see that EEOC has determined that sex discrimination precludes discrimination based on sexual orientation. But OCR states that no Federal appellate court has issued a decision consistent with that EEOC decision and states that as a matter of Constitutional principles, OCR cannot assert that sex discrimination covers sexual orientation discrimination.
Another area addressed in the proposed rule is the principle of religious exemption. Due to recent Supreme Court rulings and other legislation, I find the status of case law in this matter too confusing for me to contemplate. All I know is no service provider should ever be able to deny services or discriminate due to religious beliefs. The proposed rule has language finessing a fine line between compliance with existing case law without upholding it while asserting that religious exemptions so should not be allowed.
So what does this all mean? I concludes as follows:
Everyone should submit comments either through HRC or directly to HHS on the 3 issues of some controversy in the proposed rule, the more the better, you know the bigots will be submitting their comments:
1) Concurring with the Rule as written to prohibit discrimination based on gender status or nonconformity;
2) Expressing objection to discrimination based on sexual orientation - while HHS is unlikely to include explicit prohibitions, your comments are documented and count and can be used to show Congress the widespread support for passing laws to prohibit discrimination based on sexual orientation;
3) Expressing objections to allow religious exemptions for health care service providers.
So why did I take so long to state something so simple - because I was puzzled by HRC's assertion and wanted to determine its validity and basis for myself, because I wanted to educate anyone interested in the history of discrimination in health care and the current state of case law regarding discrimination against gays and transgenders, and to explain why discrimination against transgenders is prohibited before discrimination based on sexual orientation but not to defend the lack of laws prohibiting discrimination
During my last presentation prior to retirement, I was as surprised as I was pleased to discuss OCR's authority to enforce provisions of the ACA prohibiting discrimination against transgenders in the provision of health care services, and that those who believed they had experienced such discrimination could file a complaint with OCR, even if I wouldn't be around to investigate it and issue findings, and before an audience of health providers that included staff and clients who are transgender or gender nonconforming.
For those who have read this far, after you have submitted your comments, with elections approaching, you can ask candidates for office in your district or state whether they would vote in favor of amending the Civil Rights Act of 1964 to include the basis of sexual orientation to once and for all prohibit discrimination against lesbians and gays throughout the United States in employment, housing, health care, public accommodations and all other areas with one simple amendment.
Links:
Fact Sheet: Nondiscrimination in Health Programs and Activities Proposed Rule
Section 1557 of the Affordable Care Act:
http://www.hhs.gov/ocr/civilrights/understanding/section1557/nprmsummary.html
FAQs - Section 1557 of the Affordable Care Act, Notice of Proposed Rulemaking:
http://www.hhs.gov/ocr/civilrights/understanding/section1557/nprmprqas.html
Nondiscrimination in Health Programs and Activities - Proposed Rule:
http://www.regulations.gov/#!documentDetail;D=HHS-OCR-2015-0006-0001
http://www.hhs.gov/ocr/
http://www.hhs.gov/ocr/
http://www.hhs.gov/ocr/
http://www.hhs.gov/ocr/office/file/index.html - how to file a complaint
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