Get updates by email

Select Specific Blog Updates

Paul Zimmerman
pzimmerman@mrllp.com
310.299.5500

Photo of M&R Blog

issumbosi © 123RF.com

Authorities Split on whether ACA Section 1557 Requires Hospital Staff to Use Pronouns and Terms Consistent with a Patient’s Gender Identity

Among the most controversial of HHS’s ACA Section 1557 regulations is its requirement that covered healthcare entities treat persons consistent with their gender identity. The regulations distinguish gender identity from biological sex, and define it as a person’s internal sense of gender, which can be male, female, neither or a combination of both. HHS’s regulations do not spell out what it means to treat persons consistent with their gender identity. But a voluntary resolution agreement that its Office for Civil Rights (OCR) reached with a hospital in 2015 required it to let patients register their sex and gender upon admission, and to train staff in “appropriate terminology to use when referring to transgender individuals.” Department of Education guidance issued around the same time was even more direct and stated that public schools must use pronouns consistent with a student’s gender identity.

In December 2016, a Texas federal court enjoined HHS from enforcing its gender identity regulations.[1] And HHS is currently in the process of rewriting its rules, and may well eliminate their prohibitions on discrimination based on gender identity. But this will not settle the issue, because other courts have ruled that sex discrimination statutes can encompass gender identity, and can require hospitals and staff to treat a person consistent with their gender identity.

In September 2017 decision,[2] a California federal court considered a Section 1557 claim by the mother of a female-to-male transgender child who died by suicide after his stay in a hospital. At age 13, the child identified as and socially transitioned to life as a boy. At age 14, he began receiving puberty-delaying medication. The child nevertheless still experienced depression and gender dysphoria, and was admitted to a children’s hospital on a 72-hour hold for suicidal thoughts and self-laceration. At admission, the mother informed the hospital of the child’s male identity and “his need to be referred to exclusively with male pronouns.” The child’s male gender identity was recorded on his hospital-issued bracelet. According to the court, for a transgender person with gender dysphoria to be referred to by the wrong gender pronouns is often incredibly distressing.

After admission, nursing and other hospital staff allegedly referred to the child as a girl, using feminine pronouns. While other children at the hospital initially used male pronouns, they reportedly also began using female pronouns for the patient, copying hospital staff. When the child was discharged, one staff member said “Honey, I would call you ‘he,’ but you’re such a pretty girl.” The complaint alleged that the hospital’s misgendering caused the child great emotional distress, and that the child’s medical providers “concluded that he should be discharged early from the hold” because of the hospital’s conduct. The child was released after two days in the hospital and died by suicide about six weeks later.

In considering the mother’s Section 1557 claim, the court stated that it would not rely on HHS’s Section 1557 regulations, which were not in effect at the time of the incident. The court instead noted that several circuit courts have concluded that other sex discrimination statutes, namely Title VII and Title IX, protect transgender persons from discrimination, and it ruled that Section 1557 affords the same protection. The defendants argued that the complaint failed to allege that hospital staff had provided different medical treatment to the child based on gender. But the court stated that the hospital discriminated “by continuously referring to him with female pronouns, despite knowing that he was a transgender boy and that it would cause him severe distress.” According to the court, hospital staff allegedly refused to treat the child as a boy “precisely because of his gender non-conformance.” The court’s logic appears to be that all people have a right to be treated in accordance with their gender identity. If a covered entity instead treats transgender people based upon their biological sex, this constitutes different and hence discriminatory treatment.

In a 2015 case, a Minnesota federal court found that a healthcare provider’s misgendering of a patient did not provide an independent basis for a discrimination complaint, but did provide evidence of the provider’s overall discriminatory intent.[3] In this case, a female-to-male transgender patient alleged that when he sought treatment in a hospital emergency room for his female genitalia, the emergency room physician allegedly spoke to him in a hostile, aggressive and embarrassing manner, subjected him to pain during a physical exam and then halted the exam without reaching a diagnosis when the patient cried and the patient’s mother objected. The patient was eventually admitted to the hospital, received treatment and his condition began to improve. But the patient alleged that he was further insulted after his discharge when the emergency physician’s medical group sent him a bill stating that no insurance coverage was available because “the diagnosis is inconsistent with the patient’s gender.”

In determining whether these allegations stated a Section 1557 claim, the court pointed out that the statute provides that a covered entity “may not exclude an individual from being a patient in the hospital, deny the individual the benefits of being a patient, or subject the individual to discrimination, on the basis of sex.” Here, it found that the physician’s alleged mistreatment during the physical exam rose to the level of denial of benefits of appropriate medical care, even though the patient ultimately received treatment. Because this mistreatment was based on the patient’s transgender status – his failure to conform to gender stereotypes – it constituted discrimination on the basis of sex. And while the court found that the allegation of misgendering (via the physician group’s bill) did not provide an independent basis for a Section 1557 claim, it found that it provided evidence that the ER physician’s actions during the exam were motivated by discrimination.

There is still a long way to go before the regulators and the courts resolve the issue of whether sex discrimination encompasses gender identity. For the time being, failure to treat patients consistent with their gender identity may create a Section 1557 compliance risk, at least in some jurisdictions.

David Johnson can be contacted at david.johnson@mrllp.com.

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.

[1] Franciscan Alliance v. Burwell, 227 F.Supp.2d 660 (N.D. Tex. 2016).

[2] Prescott v. Rady Children’s Hospital-San Diego, 265 F.Supp.3d 1090 (S.D. Cal. 2017).

[3] Rumble v. Fairview Health Services, No. 14-cv-2037 (SRN/FLN) 2015 WL 1197415 (D. Minn. 2015).