Respecting Gender Identity in Healthcare: Regulatory Requirements and Recommendations for Treating Transgender Patients

Vol. 6, No. 8

Katherine Steuer, Esq., is Senior Associate Counsel at St. Jude Children’s Research Hospital, Inc., in Memphis, Tennessee. She advises the clinical enterprise and the majority of its departments on regulatory, policy, medical staff and transactional issues in the health law arena, and on legal and ethical issues related to patient care and human subject research. She is counsel for multiple committees and working groups, including the Credentials Committee, the Quality/Patient Safety Committee, the Graduate Medical Education Committee, the Ethics Committee, and the Institutional Review Board. Ms. Steuer has a certificate in Pediatric Bioethics from Children’s Mercy Bioethics Center, Children’s Mercy Hospital in affiliation with the University of Missouri – Kansas City, School of Medicine. She is the immediate past Chair of the Health Law Section of the Memphis Bar Association, and the current delegate member of the Board of the Memphis Bar Association. She may be reached at katherine.steuer@stjude.org.


Kaleigh Davis, Esq., is Staff Attorney at St. Jude Children’s Research Hospital, Inc. in Memphis, Tennessee. She advises the hospital on legal issues related to patient care, regulatory compliance, hospital policy drafting, transactional work and employment law. She is counsel on multiple committees and working groups, including the Patient Care Council, Clinical Contracts Committee and the ADA Accommodation Committee. She may be reached at kaleigh.davis@stjude.org.

Reprinted with updated information with permission from The Health Lawyer, February 2017 (29:3), at 1, 3–9. Copyright © 2017 American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.


A woman presents to a healthcare provider, giving a female name. She shows a drivers’ license that indicates her gender is “male.” Some staff understand that this is a transgender female, but they ask each other which name and gender pronouns they should use when talking to or about the patient, whether they should put the legal male name or the preferred female name in the patient’s medical record or on the arm band, whether they can ask the patient her biological sex if relevant to her diagnosis and treatment, and how to refer to the patient in the medical record so that future readers do not think the providers charted about a different patient in this patient’s chart. Staff’s discomfort shows and the patient then feels uncomfortable and obligated to reassure staff.

This article addresses compliance with legal and accreditation requirements that apply to hospitals, health plans, and medical providers treating or covering transgender patients. It makes recommendations for educating staff about transgender patients with the goal of enabling staff to respond to these patients in a way that is caring, professional, legal, and gender affirming. It also addresses the federal regulations implementing the non-discrimination provision of the Patient Protection and Affordable Care Act of 2010 (“PPACA”) and recent case law interpreting it, and reviews The Joint Commission’s (“TJC”) guidelines and other recommendations for hospitals providing care to transgender patients.


Health and Human Services Office for Civil Rights Protection of Transgender Patients under PPACA’s Nondiscrimination Provision

PPACA’s non-discrimination provision, known as Section 1557, prohibits exclusion, discrimination, and denials in healthcare on the bases of race, color, national origin, age, disability and sex in healthcare and expressly recognizes that these bases are also prohibited in other civil rights statutes.1 The central purpose of PPACA’s Section 1557 is to expand access to care and coverage, and to eliminate discriminatory barriers to access to healthcare.2 On May 18, 2016, the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) issued final regulations implementing this provision.3 Consistent with the statute, these regulations prohibit exclusion, discrimination, and denials in healthcare based the six bases in the statute via reference to other civil rights statutes, including, with respect to sex discrimination, Title IX of the Education Amendments of 1972 (“Title IX”).4

The Section 1557 regulations apply, in part, to “every health program or activity, any part of which receives Federal financial assistance from HHS, as well as HHS administered health programs and activities.”5 “Covered entities” include each of those programs or activities as well as HHS;6 these include health plans, insurers, hospitals, and physicians and any other providers receiving federal funding (including Medicaid and Medicare Parts A, C and D payments);7 the final regulations’ Preamble stated that the calculations for the proposed regulations showed that “almost all practicing physicians in the United States are reached by Section 1557 because they accept some form of Federal remuneration or reimbursement apart from Medicare Part B.”8

The regulations also apply to qualified health plans offered on either state or federal Health Insurance Marketplaces, also known as exchanges,9 and the operations of a health insurance issuer’s operations, including the issuer’s third-party administrator services.10 The regulations apply to employee health benefit programs of covered entities that are principally engaged in providing or administering health services, health insurance coverage, or other health coverage, or that receive federal financial assistance and meet certain other criteria.11

These regulations protect transgender individuals in two ways: (1) via expansive prohibitions on sex discrimination, which is then defined to include gender identity and sex stereotyping; and (2) via explicit protections accorded specifically to transgender individuals in the healthcare setting. Although a nationwide preliminary injunction has been issued with respect to the gender identity provisions, as discussed below, it is important to understand HHS’s desired protections for the transgender population because these could be imposed through other requirements, and because of the recognition of the importance of ensuring full access by and respect for transgender patients.


Prohibitions on Sex Discrimination that Protect Transgender Individuals

The Section 1557 regulations prohibit sex discrimination in providing healthcare services and in providing or administering healthcare coverage,12 as well as in the location of facilities13 and in making determinations about individuals.14 The regulations also affirmatively require providing equal access to health programs and activities without discrimination on the basis of sex.15 These provisions apply to transgender individuals because “on the basis of sex” is defined by the regulations to include on the bases of gender identity and sex stereotyping.16

Gender Identity

A transgender individual is an individual whose gender identity is different from the sex assigned to that person at birth.17 “Gender identity” means an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.18 Gender may be expressed through dress, grooming, mannerisms, speech patterns, and social interactions.19

Because discrimination against a patient on the basis of his or her gender identity is discrimination on the basis of sex, covered entities must be careful to respect the person’s stated gender identity. For example, providers should have a process for recording in the medical record a legal name change of a transgender person just as the hospital would for marital, adoption, or other name changes. It seems probable that requiring the hypothetical patient discussed at the beginning of this article to use the men’s restroom rather than the women’s could constitute sex discrimination. Although the regulations do not expressly require bathroom availability, they incorporate a regulation issued under Title IX of the Education Amendments of 1972,20 and the Preamble discusses favorably Title IX cases requiring schools to allow individuals to use the bathroom consistent their gender identities.21 In the school context, the issue is currently being litigated in the federal courts.22

Sex Stereotyping as it Relates to Transgender Individuals

The regulations protect transgender individuals in healthcare further via an expansive definition of “on the basis of sex” — as a type of prohibited discrimination — to include sex stereotyping.23 “Sex stereotypes” means “stereotypical notions of masculinity or femininity, including expectations of how individuals represent or communicate their gender to others, such as behavior, clothing, hairstyles, activities, voice, mannerisms, or body characteristics.” Sex stereotypes also include “gendered expectations related to the appropriate roles of a certain sex.”24 To the extent that staff and physicians expect the hypothetical patient described at the beginning of this article to behave in a traditionally masculine manner, they would run afoul of the restriction on sex-stereotyping discrimination. HHS expressly recognized that gender is not necessarily “binary,” that an individual may have a gender identity “other than male or female.” 25 For example, if the hypothetical patient presents another time as a male, staff should not assume that the patient no longer identifies as a female—respectful inquiry will likely be the safest course.

Prohibition on Denial of Services and Coverage Based on Gender Identity

The Section 1557 regulations also protect transgender patients by imposing direct requirements for health care delivery and healthcare coverage. The regulations specifically state that healthcare services and health coverage may not be denied based on the fact that a person’s gender identity differs from his or her sex assigned at birth.26 Providers may not limit a transgender person’s access to services ordinarily available to people of only one sex based on the transgender person’s sex assigned at birth or gender identity.27 For example, a transgender male cannot be denied treatment for ovarian cancer if medically indicated.28 But at the same time, providers need not give a prostate exam to someone who does not have a prostate, or order a pap smear for a transgender woman, regardless of that person’s gender identity.29

Covered entity health plans similarly may not limit or deny coverage of a claim, require additional cost sharing on the part of the patient, or otherwise restrict coverage (1) for any health services specifically related to gender transition if that results in discrimination,30 or (2) for any services that are “ordinarily or exclusively available to individuals of one sex,” because an individual’s sex assigned at birth or gender identity differs from the one to which such health services are ordinarily or exclusively available.31 Thus, for example, a covered entity may not deny a transgender male coverage for ovarian cancer.32 If a plan covers hysterectomies for cancer, but denies them for treating gender dysphoria even when the provider says that it is medically necessary to treat that dysphoria, OCR may scrutinize the coverage policy. The plan further may not categorically exclude or limit coverage for all health services related to gender transition,33 although the regulations do not “affirmatively require covered entities to cover any particular procedure or treatment for transition-related care.”34 Specifically regarding transition, the Preamble states that a covered entity must apply “the same neutral, nondiscriminatory criteria that it uses for other conditions when the coverage determination is related to gender transition. Thus, if a covered entity covers certain types of elective procedures that are beyond those strictly identified as medically necessary or appropriate, it must apply the same standards to its coverage of comparable procedures related to gender transition.”35 Although the regulations do not entirely disallow sex-based distinctions, there is no “license to exclude individuals from health programs and activities for which they are otherwise eligible” based on their gender identity.36

Treatment of Individuals Consistent with their Gender Identity

The Section 1557 regulations require treatment of individuals in a manner consistent with their gender identities,37 but they and their Preamble provide limited guidance on how to do so. Using the individual’s preferred name and pronoun whenever possible is one way to treat someone consistent with his or her gender identity. According to the regulations, “persistent and intentional refusal to use a transgender individual’s preferred name and pronoun and insistence on using those corresponding to the individual’s sex assigned at birth constitutes illegal sex discrimination if such conduct is sufficiently serious to create a hostile environment.”38 Using the person’s preferred pronoun, facilitating the person’s choice of bathroom, and prescribing medical treatments such as hormones when medically appropriate are further options for showing respect for a person’s gender identity. Additional recommendations are below.

Cases Addressing the Regulations

A number of cases apply Section 1557 itself with respect to gender identity.39 However, given the recency of the Section 1557 regulations, few cases have interpreted them. In one case, a transgender employee of a medical center claimed discrimination by virtue of the exclusion of coverage for “sex transformation” surgery.40 The question posed was whether Section 1557’s incorporation of Title IX’s sex-discrimination provision includes discrimination on the basis of gender identity.41 The court granted a stay to await the Supreme Court, which had granted cert on this same question in Gloucester County School Board v. G.G.42

In another case, although one of the questions raised was virtually the same as that posed in Gloucester County, a Texas district court did not stay its hand. On December 31, 2016, in Franciscan Alliance v. Burwell, a United States District Judge for the United States District Court for the Northern District of Texas in Wichita Falls, Texas issued a nationwide preliminary injunction enjoining HHS from enforcing the Section 1557 regulations’ prohibition against discrimination with respect to gender identity.43 The court concluded that the regulations violate the Administrative Procedure Act (“APA”) by contradicting existing law and exceeding statutory authority, and that the regulations likely violate the Religious Freedom Restoration Act (“RFRA”).44 The court held that Title IX defines “sex” to refer to biology, not identity, and that because Section 1557 incorporates Title IX with respect to prohibited sex discrimination, the definition could not be expanded without exceeding statutory authority.45 Although the regulations state that “[i]nsofar as the application of any requirement under this part would violate applicable Federal statutory protections for religious freedom and conscience, such application shall not be required,”46 the court, with minimal discussion, indicated that it did not believe that the regulatory language provided adequate protection for the plaintiffs, who would have to either provide services that contravened their religious beliefs or violate the law.47 The court found that the “Plaintiffs have demonstrated that they face a substantial threat of irreparable harm in the absence of an injunction….Without an injunction, the Plaintiffs will be threatened with substantial harm, including the risk of federal funding withdrawal and civil liability.”48

Although the injunction makes it unnecessary for health payors to offer additional health benefits, as well as not requiring covered entities to provide transition services, it is possible that the preliminary injunction will not be upheld. It is also possible that HHS and other entities will seek to enforce protections for transgender persons via other statutes, including Title VII of the Civil Rights Act,49 and via other regulations, including those prohibiting discrimination on the basis of gender identity by (i) issuers of qualified health plans on the exchange and health insurance issuers;50 (ii) states, insurance exchanges, and Medicaid managed care companies;51 (iii) federal contractors;52 and even regulations that prescribe the vocabulary for coding various gender identities in the electronic health record.53 Although some, but not all, of these regulations were issued under PPACA and could face repeal by the new administration, unless and until repealed, OCR may interpret these requirements in light of the requirements in the Section 1557 regulations. Additional requirements address treatment of transgender persons in the healthcare context and are discussed below.

Centers for Medicare & Medicaid Services (“CMS”): Current and Proposed Protections

CMS’s Conditions of Participation (“CoPs”) for hospitals, which establish standards for the safe operation of the facilities and for the protection of patient rights,54 also address non-discrimination on the basis of gender identity — at least with respect to visitation. They provide that hospitals shall “not restrict, limit or otherwise deny visitation privileges on multiple bases, including gender identity.55 The CoPs for critical access hospitals (“CAHs”) do likewise.56

In June 2016, CMS proposed another rule under PPACA Section 1557 entitled Hospital and Critical Access Hospital (CAH) Changes to Promote Innovation, Flexibility, and Improvement in Patient Care, that, among other things, would require hospitals and CAHs to “establish and implement a policy prohibiting discrimination” on several specified bases including gender identity.57 According to CMS, “[b]ecause discriminatory behavior can affect perceived and actual access to and effectiveness of healthcare delivery, we propose to establish explicit requirements that a hospital not discriminate…and that the hospital establish and implement a written policy prohibiting discrimination on the basis of race, color, national origin, sex (including gender identity), age, or disability.”58 CMS went on to say that “there is currently no explicit prohibition of discrimination contained within the Hospital and CAH CoPs. We have been made aware that the historic lack of an explicit prohibition within the CoPs, and, in particular, the lack of civil rights protections regarding hospital patients’ gender identities, is regarded as having been a barrier to seeking care by individuals who fear such discrimination. Discriminatory behavior, or even the fear of discriminatory behavior, by healthcare providers remains an issue and can create barriers to care and result in adverse outcomes for patients.”59

Thus, CMS proposes to add a new section 482.13(i) to the Patient Rights section of the hospital CoPs at 42 C.F.R. Part 482 to prohibit discrimination and require written policies prohibiting discrimination, including on the basis of gender identity,60 and the same requirements for CAHs as a new 42 C.F.R. § 485.635(g).61 CMS has stated that this proposed rule would “update the requirements that hospitals and…CAHs must meet to participate in the Medicare and Medicaid programs. These proposals are intended to conform the requirements to current standards of practice and support improvements in quality of care, reduce barriers to care, and reduce some issues that may exacerbate workforce shortage concerns.”62 The comment period to the proposed rule closed on August 15, 2016,63 and a final rule has not yet been issued. The American Hospital Association recommended in its comments on the proposed rule that CMS adopt by reference the OCR regulations discussed above, and coordinate with OCR to issue guidance, rather than issuing these additional non-discrimination requirements.64

The Joint Commission

The Joint Commission (“TJC”) Standards Affecting Transgender Patients

TJC is an organization that surveys and accredits various healthcare organizations, including hospitals, nursing homes, physician’s offices, and home health providers which comply with its standards.65 Some organizations may qualify for Medicare and Medicaid certification via their TJC accreditation, and can avoid duplicate inspections.66 Standards of TJC are organized on the basis of multiple themes, including Leadership (“LD”) and Rights and Responsibilities of the Individual (“RI”); each standard is interpreted or implemented by an Element of Performance (“EP”) which provides more detailed direction for the healthcare entity. TJC seeks to protect all patients, including transgender patients. Standard RI.01.01.01’s EP 29 states “[t]he hospital prohibits discrimination based on age, race, ethnicity, religion, culture, language, physical or mental disability, socioeconomic status, sex, sexual orientation, and gender identity or expression.”67 Related EPs under this standard include EP 4, The hospital treats the patient in a dignified and respectful manner that supports his or her dignity; EP 6, The hospital respects the patient’s cultural and personal values, beliefs, and preferences; and EP 28, The hospital allows a family member, friend, or other individual to be present with the patient for emotional support during the course of stay.68

To provide guidance for hospitals to implement this standard for the lesbian, gay, bisexual, and transgender (“LGBT”) population, TJC issued The LGBT Field Guide in 2011.69 The purpose of this Guide is to ensure quality care for all patients, regardless of social or personal characteristics, and to ensure that they be treated with dignity and respect in healthcare settings and feel comfortable providing information relevant to their care, including information about sexual orientation and gender identity.70 The Guide compiles “strategies, practice examples, resources, and testimonials designed to assist hospital staff in improving quality of care” by rendering care that is inclusive of LGBT patients and families.71 The TJC states that “a healthcare organization, in striving to meet the individual’s needs of each patient, must embed the concepts of effective communication, cultural competence, and patientand family-centered care into the care activities of its care delivery system.”72 TJC emphasizes that the needs of the LGBT community, both as a whole and each segment of that community, including transgender people, must be considered in providing care, treatment, and services.73

General Recommendations

The exact way to implement the TJC’s guidance is not clear cut, and implementation will vary by institution. Suggestions include designating a way for patients to list their legal names and their preferred name on registration and other documents and in the medical record, creating a way to capture patient’s preferred pronouns and ensuring that those preferred pronouns are used; developing a policy addressing needs of transgender patients, along with corresponding educational materials; and planning for staff education about treating transgender patients in a gender affirming manner.

Recommendations for Care, Treatment, and Services

To address the provision of care, treatment, and services to the LGBT population, TJC has suggested the following:

  • Create a welcoming environment that is inclusive of these patients.74
  • Prominently post the hospital’s nondiscrimination policy or patient bill of rights.75
  • Ensure that waiting rooms and other common areas reflect and be inclusive of LGBT patients and families.76
  • Create or designate unisex or single-stall restrooms.77
  • Ensure that visitation policies are implemented in a fair and nondiscriminatory manner.78
  • Foster an environmental that supports and nurtures all patients and families.79
  • Avoid assumptions about sexual orientation and gender identity.80
  • Refrain from making assumptions about a person’s sexual orientation or gender identity based on appearance.81
  • Facilitate disclosure of sexual orientation and gender identity, but be aware that this disclosure or “coming out” is an individual’s process.82
  • Honor and respect the individual’s decision and pacing in providing information.83
  • Use forms that contain inclusive, gender-neutral language that allows for self-identification.84
  • Use neutral and inclusive language in interviews and when talking with all patients.85
  • Listen to and reflect patients’ choice of language when describing their own sexual orientation and how the patients refers to their relationships or partner.86
  • Provide information and guidance for the specific health concerns facing lesbian and bisexual women, gay and bisexual men, and transgender people.87

How each individual hospital or other healthcare provider implements these recommendations will vary and will depend on many considerations such as staffing, patient population, hospital leadership, financial resources, what the hospital already is doing for this population, community norms, and other factors.

To implement these recommendations, institutions might consider updating their patient rights and responsibilities notices to include the rights of transgender patients; creating and/or updating policies and educational materials to specifically include transgender patients; appointing transgender persons or caregivers of transgender patients to family advisory councils or other committees; updating hospital or clinic signage and marketing materials to reflect transgender patients and transgender families; adding information specifically about transgender patients to staff annual training; and creating a variety of ways to educate staff, such as Grand Rounds, question and answer sessions, seminars, workshops, and guest speakers.

Recommendations for Data Collection and Use

TJC has stated that for healthcare organizations to improve the care they provide, they must collect and use accurate data.88 “Data are helpful for informing policies and program development; evaluating the effectiveness of policies and programs; developing marketing, research, quality improvement, and community outreach initiatives; and responding to the changing needs of patient populations.”89 In these ways, healthcare providers can use data to facilitate the overall health and well-being of all patients.90 Specifically, information about “the characteristics of patients and patient populations can help hospitals identify and ultimately address disparities in health and healthcare and plan to meet unique patient needs.”91

TJC has laid out the following data collection methods: (a) identify opportunities to collect LGBT-relevant data and information during the healthcare encounter;92 (b) identify a process to collect data at registration/ admitting;93 (c) identify a process to document self-reported sexual orientation and gender identity information in the medical record;94 (d) ensure that the disclosure of sexual orientation and gender identity information is voluntary;95 (e) train staff to collect sexual orientation and gender identity data;96 (f) ensure that strong privacy protections for all patient data are in place;97 (g) add information about sexual orientation and gender identity to patient surveys;98 (h) use aggregated patient-level sexual orientation and gender identity data to develop or modify services, programs, or initiatives to meet patient population needs;99 (i) use available population-level data to help determine the needs of the surrounding community;100 (j)  use national and state-level data on sexual orientation and gender identity to develop initiatives that address the health concerns of LGBT patients;101 (k)  conduct focus groups or interview community leaders, including LGBT community members and leaders, to identity changes in the demographics and needs of the surrounding community;102 and (l) conduct community needs assessments that include LGBT demographics.103

While these are recommendations and not rules, organizations and care providers accredited by TJC could run the risk of receiving a finding by TJC during a survey for not following TJC’s recommendations. Those not accredited by TJC should nonetheless look to these recommendations given HHS’s recent emphasis on protections for transgender individuals via two of its agencies, that is, in OCR’s Section 1557 regulations and in CMS’s visitation regulation of the CoPs as well as its further proposed amendment to the CoPs.

For implementation of these requirements, and to ensure that disclosure is informed as well as voluntary, hospitals may consider educating patients about what it means to disclose gender identity information. Patients could be told that including this information in their medical record means it will be visible to providers and staff in the hospital who have access to the patient’s medical record, and that this information will become part of the patient’s official medical record so that healthcare insurers and others with legal access to the medical record could also view the gender identity information. If a patient chooses to not include this information in the patient’s medical record, that patient should be told, consistent with TJC recommendations, that such information will be kept confidential.104 Particular care should be taken with pediatric and adolescent patients to avoid disclosures in the medical record that could reveal gender identity inconsistent with sex assigned at birth to parents or guardians whom the patient has not yet informed.

Both HHS’s PPACA regulations and TJC require respectful treatment of transgender individuals and prohibit discrimination. In the situation described in the beginning of this article, staff should refer to the patient as a woman, and ask her and then use her preferred name and pronoun. When charting in the medical record, staff might preface notes with “X is a transgender female,” and then proceed to use the feminine pronoun in the remainder of the note. Staff may put either her preferred name or her legal (male) name on the armband and in the medical record, and may use either her preferred name or her legal (male) name in performing patient identification before a procedure.

However, if the hospital will use the patient’s legal name rather than the patient’s preferred name in these or other circumstances, best practice would be for staff to explain this to the patient up front. Staff and hospital administration should implement TJC’s statement that “it is ultimately the responsibility of leadership to bring the patient and family perspective directly into the planning, delivery, and evaluation of health care. Sexual orientation and gender identity are among the many factors that affect patient experiences before, during, and after interactions with health care providers. Leaders have a responsibility to ensure that the needs of LGBT populations are accounted for in their efforts to provide patient-centered and equitable care.”105

Conclusion

In light of the country’s recent election and the vows for repeal of PPACA, the future of PPACA is uncertain, as is the viability of Section 1557.106 However, even if Section 1557 is repealed in part or in whole, or a permanent injunction is granted along the lines of the Franciscan Alliance preliminary injunction, TJC standards and recommendations are likely to still be in effect for healthcare providers that TJC accredits, and to function as a source of guidance or best practices for other healthcare providers. The regulations and the standards and recommendations discussed above can continue to provide guidance for healthcare providers that, regardless of legal landscape, desire to treat patients, companions, families, and visitors with respect, regardless of personal characteristics such as transgender status.


NOTES

1. Section 1557 of the Patient Protection and Affordable Care Act (“PPACA”), 42 U.S.C. § 18116.

2. 81 Fed. Reg. at 31377.

3. 45 C.F.R. §§ 92.1–92.303.

4. 45 C.F.R. §§ 92.1, 92.301 (referring to Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. 1681 et seq.).

5. 45 C.F.R § 92.2(a).

6. 45 C.F.R. § 92.4.

7. See 81 Fed. Reg. at 31383-84.

8. 81 Fed. Reg. at 31446.

9. See Id. 45 C.F.R. 92.4 (defining “covered entity” to include “(2) An entity established under Title I of the ACA that administers a health program or activity”). The Health Insurance Marketplace (also known as the “Marketplace” or “exchange”) provides health plan shopping and enrollment services through websites, call centers, and in-person help. The federal government operates the Marketplace, available at HealthCare.gov, for most states. Some states run their own Marketplaces. https://healthcare.gov/glossary/health-insurance-marketplace-glossary/ (last visited on 12/12/16).

10. 45 C.F.R. § 92.4.

11. 45 C.F.R. § 92.208; see also 45 C.F.R. §92.4. (defining “employee health benefits plan”).

12. 45 C.F.R. §§ 92.101(a)(i); 92.206; 92.207(a), (b)(1) and (2).

13. 45 C.F.R. § 92.101(b)(3)(iii).

14. 45 C.F.R. § 92.101(b)(3)(i) and (ii).

15. 45 C.F.R. § 92.206(a); see also § 92.101(b)(3) (iv) (a sex-specific health program or activity restricted to members of one sex is permitted only upon demonstration of “an exceedingly persuasive justification, that is, that the sex-specific health program or activity is substantially related to the achievement of an important health-related or scientific objective”).

16. 45 C.F.R. § 92.4 (“On the basis of sex includes, but is not limited to, discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, and gender identity). The case enjoining application of the regulations determined that because Title IX was the statute referenced for the prohibition of sex discrimination, the Section 1557 regulations could not broaden Title IX’s definition of “sex” to include “gender identity.” Franciscan Alliance v. Burwell, No. 7:16-cv-00108-O N.D. Tex. Dec. 31, 2016), slip. op. at 33.

17. Id.

18. 45 C.F.R. § 92.4. The way an individual expresses gender identity is frequently called “gender expression,” and may or may not conform to social stereotypes associated with a particular gender. Id.

19. 81 Fed. Reg. at 31384.

20. 45 C.F.R. § 92.101(b)(3)(i) (incorporating 45 C.F.R. § 86.31(b)(1) (8)) (prohibiting sexbased distinctions); Title IX is codified at 20 U.S.C. § 1681, et seq, and prohibits sex discrimination in education.

21. 81 Fed. Reg. at 31389.

22. After granting certiorari in Gloucester County School Board v. G.G., No. 16-273, ___ U.S. ___, 137 S.Ct. 369, 2016 WL 4565643 (Oct. 28, 2016), the Supreme Court vacated judgment and remanded to the U.S. Court of Appeals for the Fourth Circuit for further consideration in light of recent guidance issued by the Departments of Education and Justice withdrawing prior guidance requiring schools to allow transgender students to use their preferred bathrooms. Gloucester County School Board v. G.G., No. 16-273, ___ U.S. __, 2017 WL 855755 (Mar. 6, 2017). See U.S. Department of Education, “U.S. Secretary of Education Betsy DeVos Issues Statement on New Title IX Guidance,” available at https://www.ed.gov/news/press-releases/us-secretary-education-betsy-devos-issues-statement-new-title-ix-guidance.

23. 45 C.F.R. § 92.4.

24. Id.

25. 81 Fed. Reg. at 31392.

26. 45 C.F.R. § 92.206.

27. 45 C.F.R. § 92.206.

28. 81 Fed. Reg. at 31428.

29. Id.

30. 45 C.F.R. § 207(b)(5).

31. 45 C.F.R. §§ 92.207(b)(3).

32. 81 Fed. Reg. 31428.

33. 45 C.F.R. §§ 92.207(b)(4). See also 81 Fed. Reg. at 31429.

34. 81 Fed. Reg. at 31429.

35. 81 Fed. Reg. at 31435.

36. 81 Fed. Reg. at 31389.

37. 45 C.F.R. § 92.206; 207(b)(5).

38. 81 Fed. Reg. at 31406.

39. E.g., Tovar v. Essentia Health, No. 16-100 (RHK/LIB), 2016 WL 2745816 (D. Minn. May 11, 2016) (employee’s claim of discrimination based on denial of coverage of gender reassignment surgery for her son dismissed); Rumble v. Fairview Health Services, No. 14-cv2037 (SRN/FLN) (D. Minn. Mar. 16, 2015) (motion to dismiss denied because physician’s asking allegedly intentionally embarrassing questions and conducting an assaultive and painful examination in relation to plaintiff’s gender identity, if proven, would constitute sex discrimination); Cruz v. Zucker, 116 F. Supp. 3d 334, 348 (S.D.N.Y. 2015) (granting motion to dismiss for failure to state a claim regarding Medicaid refusal to cover transition services for transgender youth).

40. Robinson v. Dignity Health d/b/a Chandler Regional Medical Center, Case No. 16-CV3035 YGR, 2016 WL 7102832 (N.D. Cal. Dec. 12, 2016), at *1.

41. Id.

42. Id. at *1, *3 (referring to G.G. v. Gloucester County School Board, 822 F.3d 708 (4th Cir. 2016), cert granted No. 16-273, U.S. , 137 S.Ct. 369, 2016 WL 4565643 (Oct. 28, 2016), judgment vacated and case remanded, No. 16-273, ___ U.S. __, 2017 WL 855755 (Mar. 6, 2017)).

43. Franciscan Alliance v. Burwell, No. 7:16-cv00108-O, slip op. at 44 (N.D. Tex. Dec. 31, 2016).

44. Id. at 2.

45. Id. at 30-32.

46. 45 C.F.R. § 92.2(b)(2).

47. Franciscan Alliance, slip op. at 24 and n. 16. The court did not read the broad savings language of the regulation to incorporate the Title IX religious exemptions.

48. Id. at 43-44.

49. 42 U.S.C. § 2000e-2; see Schroer v. Billington, 525 F. Supp. 2d. 58, (D.D.C. 2007) (finding it unnecessary to reach the question “whether discrimination against transsexuals because they are transsexuals is ‘literally’ discrimination ‘because of … sex’” under Title VII but noting that “[i]t is well-established that, as a legal concept, ‘sex’ as used in Title VII refers to much more than which chromosomes a person has.”).

50. 45 C.F.R. § 156.200(e) (“A QHP issuer must not, with respect to its QHP, discriminate on the basis of race, color, national origin, disability, age, sex, gender identity or sexual orientation.”); 45 C.F.R. § 147.104(e) (a health insurance issuer “cannot employ marketing practices or benefit designs that will have the effect of discouraging the enrollment of individuals with significant health needs in health insurance coverage or discriminate based on an individual’s…gender identity”).

51. 45 C.F.R. § 155.120(c)(1)(ii); 42 C.F.R. §§ 438.3(d)(4), 438.206(c)(2); see also 42 C.F.R. § 440.262 (“The State must have methods to promote access and delivery of services in a culturally competent manner to all beneficiaries, including those with limited English proficiency, diverse cultural and ethnic backgrounds, disabilities, and regardless of gender, sexual orientation or gender identity.”).

52. 41 C.F.R. §§ 60-1.4, 60–20.7(b); 48 C.F.R. §§ 352.237–74, 52.222–26.

53. 45 C.F.R. § 170.207(o).

54. CMS established the Conditions of Participation (“CoPs”) as requirements for healthcare organizations who wish to participate in the Medicare and Medicaid programs. These health and safety standards “are the foundation for improving quality and protecting the health and safety of beneficiaries.” https://cms.gov/Regulations-and-Guidance/Legislation/CFCsAndCoPs/index.html?redirect=/CFCsAndCops/16_ASC.asp (last visited on 12/13/2016). The standards of accrediting organizations recognized by CMS (through a process called “deeming”) must meet or exceed the Medicare standards set forth in the CoPs. Id.

55. 42 C.F.R. § 482.13(h)(3). https://cms.gov/Regulations-and-Guidance/Legislation/CFCsAndCoPs/index.html?redirect=/CFCsAnd-Cops/16_ASC.asp. (Last visited on 12/13/2016).

56. 42 C.F.R. § 485.635(f)(3).

57. “Medicare and Medicaid Programs: Hospital and Critical Access Hospital (CAH) Changes To Promote Innovation, Flexibility, and Improvement in Patient Care,” 81 Fed. Reg. 39447, 39450 (June 16, 2016) [hereinafter, “CMS Proposed Rule”].

58. Id. at 39450.

59. Id.

60. Id. at 39466, 39476.

61. Id. at 39467-68, 39478.

62. Id at 39448.

63. Id.

64. Letter from Thomas P. Nickels, Executive Vice President, American Hospital Association, to Andrew M. Slavitt, Acting Administrator, CMS, at 3 (August 15, 2016), available at www.aha.org/advocacy-issues/letter/2016/160815-cl-cms3295-p-cop.pdf (last visited on 12/29/2016).

65. An independent, not-for-profit organization, The Joint Commission accredits and certifies nearly 21,000 healthcare organizations and programs in the United States. Joint Commission accreditation and certification is recognized nationwide as a symbol of quality that reflects an organization’s commitment to meeting certain performance standards: https://www.jointcommission.org. (Last visited on 12/13/2016).

66. See https://www.jointcommission.org/accreditation/accreditation_main.aspx (Last visited on Dec. 29, 2016).

67. Joint Commission Standard RI.01.01.01 (“The hospital respects, protects, and promotes patient rights”) Element of performance #29, reprinted in The Joint Commission: Advancing Effective Communication, Cultural Competence, and Patientand Family-Centered Care for the Lesbian, Gay, Bisexual, and Transgender (LGBT) Community, A Field Guide at 47, available at https://jointcommission.org/assets/1/18/LGBTFieldGuide_WEB_LINKED_VER.pdf (last visited on 12/29/2016).

68 TJC Standard RI.01.01.01, Elements of Performance 4, 6, and 28, reprinted in the Guide, at 47. See also Note to RI.01.01.01, EP 28, (“The hospital allows for the presence of a support individual of the patient’s choice, unless the individual’s presence infringes on others’ rights, safety, or is medically or therapeutically contraindicated.”), reprinted in the Guide at 47.

69. The Joint Commission: Advancing Effective Communication, Cultural Competence, and Patientand FamilyCentered Care for the Lesbian, Gay, Bisexual, and Transgender (LGBT) Community: A Field Guide. Oak Brook, IL, Oct. 2011. LGBTFieldGuide.pdf.

70. LGBT Guide, pg. 2.

71. Id.

72. Id. at 11.

73. Id.

74. Id.

75. Id.

76. Id.

77. Id. at 12.

78. Id. at 12. See also 42 C.F.R. § 482.13(h)(3) (providers shall “not restrict, limit or otherwise deny visitation privileges on that basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability.”)

79. Id. at 12.

80. Id.

81. Id.

82. Id. at 13.

83. Id.

84. Id.

85. Id.

86. Id. at 14.

87. Id. at 15.

88. Id. at 25.

89. Id. at 25. See also The Joint Commission: Advancing Effective Communication, Cultural Competence, and Patientand Family-Centered Care: A Roadmap for Hospitals. Oak Brook, IL: Joint Commission Resources, 2010.

90. LGBT Guide at 25.

91. Id. at 25.

92. Id.

93. Id. at 26.

94. Id.

95. Id.

96. Id. at 27.

97. Id.

98. Id. at 28.

99. Id.

100. Id. at 29.

101. Id.

102. Id.

103. Id.

104. LGBT Guide, pg. 27-28.

105. LGBT Guide, at 7.

106. See Franciscan Alliance v. Burwell, No. 7:16-cv-00108-O (N.D. Tex. Dec. 31, 2016).


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