Health Challenges for LGBT People: The Law's Contribution to the Problem and Solution

1. Health Challenges for LGBT People: The Law’s Contribution to the Problem and to the SolutionABA Washington Health Law SummitDecember 7, 2015 Daniel Bruner, JD, MPP Senior Director of Policy Whitman-Walker Health

2. Overview • Many lesbian, gay, bisexual and transgender people experience barriers to adequate, affordable health care. • LGBT people experience numerous and serious health problems to a greater extent than non-LGBT people. • These health challenges result, directly and indirectly, from longstanding, pervasive discrimination and stigma. • The law traditionally has contributed to this discrimination and stigma, but recent legal developments promise to be part of the solution.

3. Before We Begin • Sexual orientation refers to who an individual is attracted to, sexually and romantically, and their sexual identity. Conventional categories are homosexual (gay, lesbian, same-gender-loving, queer); heterosexual; bisexual. • Gender identity refers to the gender that an individual identifies as being – independent of the gender or genders to whom the individual is attracted. A transgender person is one whose gender identity differs from the gender to which they were assigned at birth. A gender nonconforming individual is one who does not identify with some or all of the aspects of traditional, “binary” genders (male, female). A gender nonconforming person may, or may not, be transgender; and a transgender person may, or may not, be gender nonconforming. • A transgender person may have a homosexual, heterosexual or bisexual sexual orientation.

4. Barriers to Health Care • LGBT people have relatively high rates of un- and under-insurance. Jennifer Kates et al., Health and Access to Care and Coverage for Lesbian, Gay, Bisexual, and Transgender Individuals in the U.S., Kaiser Family Foundation Issue Brief, April 23, 2015, http://files.kff.org/attachment/issue-brief-health-and-access-to-care-and-coverage-for-lesbian-gay-bisexual-and-transgender-individuals-in-the-u-s, pp. 9-11 • LGBT individuals and families tend to be lower-income, and to experience more food insecurity, than non-LGBT persons. M.V. Lee Badgett, Laura E. Durso and Alyssa Schneebaum, New Patterns of Poverty in the Lesbian, Gay, and Bisexual Community, The Williams Institute (June 2013), http://williamsinstitute.law.ucla.edu/research/census-lgbt-demographics-studies/lgbt-poverty-update-june-2013 Gary J. Gates, Food Insecurity and SNAP (Food Stamp) Participation in LGBT Communities, The Williams Institute (February 2014), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Food-Insecurity-in-LGBT-Communities.pdf • Many LGBT people have encountered discrimination from health care providers and health care institutions. Lambda Legal, When Health Care Isn’t Caring (2010), www.lambdalegal.org/health-care-report , pp. 13-15 National Center for Transgender Equality and National Gay & Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender discrimination survey (2011), pp, 72-78, http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf • Even if they do not discriminate, many health care providers are uncomfortable with LGBT people and/or unfamiliar with their needs. This lack of cultural competency discourages LGBT people from seeking care and inhibits frank patient-provider communication. American Association of Medical Schools, Implementing Curricular and Institutional Climate Changes to Improve Health Care for Individuals Who Are LGBT, Gender Nonconforming, or Born With DSD: A Resource for Medical Educators(2014), http://offers.aamc.org/lgbt-dsd-health, pp. 30, 54-61 (Ch. 3), 65, 73, 192, 213-214

5. Documented LGBT Health Disparities(see subsequent slide for citations) LGBT people are more likely than non-LGBT people to • suffer from depression, anxiety and other mental health challenges; • have considered or attempted suicide; • report poor health generally and to suffer from a wide range of chronic health conditions; • use tobacco, abuse drugs, and consume excessive alcohol, which create risks of heart, lung and liver disease, hypertension, and certain cancers; and • suffer from eating disorders that can endanger health.

6. Documented LGBT Health Disparities(see subsequent slide for citations) Gay and bisexual men experience much higher rates of HIV infection, hepatitis B, and some other sexually transmitted infections, and higher rates of anal cancer. Lesbian and bisexual women are more likely to be overweight or obese, which results in elevated risk of heart disease, hypertension, diabetes, cancer, and premature death; and are at higher risk of breast and gynecological cancers because they are less likely to receive regular mammograms, Pap tests, and pelvic exams.

7. Documented LGBT Health Disparities(see subsequent slide for citations) Transgender persons suffer from very high rates of depression, anxiety and other mental health disorders, high rates of suicide, and very high risks of violence. Those who are on hormones need medical monitoring that they often do not receive. Transgender women have very high rates of HIV and other sexually transmitted infections, and frequently do not receive medical screenings for prostate and testicular cancer even though they may be at risk. Transgender men frequently do not receive medical screenings for breast and gynecological cancers even though they may be at risk.

8. Documented LGBT Health Disparities(see subsequent slide for citations) LGBT young people are at particularly high risk of depression, other mental health disorders, and suicide, and young gay and bisexual men and transgender women are at very high risk of HIV and other sexually transmitted infections. LGBT elders suffer from poorer mental and physical health and are more likely to struggle with alcohol and drug abuse; and are more likely to be isolated and less likely to seek medical care because of fear of stigma and discrimination.

9. Documented LGBT Health Disparities(see subsequent slide for citations) All of these health challenges are magnified for LGBT people of color, who experience even higher rates of unemployment, poverty, homelessness, depression, suicidal thoughts and suicide attempts, and poor health. Example: Approximately 2.4% of DC residents are living with HIV – one of the highest prevalence rates in the U.S. A just-released survey of transgender persons living in DC and the surrounding suburbs found that 21% of those surveyed – and 29% of transgender women – had been diagnosed with HIV. 95 % of the transgender individuals who were HIV infected were persons of color. Elijah A. Edelman et al., Access Denied: Washington, DC Trans Needs Assessment Report (DC Trans Coalition 2015), available at http://www.dctranscoalition.org.

10. Documented LGBT Health Disparities • Institute of Medicine, The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for Better Understanding (2011), https://www.iom.edu/Reports/2011/The-Health-of-Lesbian-Gay-Bisexual-and-Transgender-People.aspx, pp. 170-172 (childhood and adolescence), 231-233 (early and middle adulthood), 281-282 (later adulthood) • U.S. Department of Health and Human Services, Lesbian, Gay, Bisexual, and Transgender Health, http://www.healthypeople.gov/2020/topics-objectives/topic/lesbian-gay-bisexual-and-transgender-health • Jennifer Kates et al., Health and Access to Care and Coverage for Lesbian, Gay, Bisexual, and Transgender Individuals in the U.S., Kaiser Family Foundation Issue Brief, April 23, 2015, http://kff.org/disparities-policy/issue-brief/health-and-access-to-care-and-coverage-for-lesbian-gay-bisexual-and-transgender-individuals-in-the-u-s, pp. 4-9 • American Association of Medical Schools, Implementing Curricular and Institutional Climate Changes to Improve Health Care for Individuals Who Are LGBT, Gender Nonconforming, or Born With DSD: A Resource for Medical Educators(2014), http://offers.aamc.org/lgbt-dsd-health, pp. 14-17 • The Joint Commission, Advancing Effective Communication, Cultural Competence, and Patient- and Family-Centered Care for the Lesbian, Gay, Bisexual, and Transgender (LGBT) Community: A Field Guide (2011), http://www.jointcommission.org/lgbt, Introduction, pp. 1, 2

11. LGBT Health Challenges: The Direct and Indirect Result of Discrimination and Stigma • Discrimination by health care providers and institutions; lack of understanding by medical providers of LGBT health risks and/or discomfort with LGBT patients. • Fear of discrimination and stigma, which leads many LGBT people to avoid encounters with the health care system except when in crisis (and thus to miss opportunities for preventive care). • LGBT employment discrimination, and discrimination against same-sex couples in employer-provided health insurance, which results in lesser availability of health insurance. • Discrimination by health insurers against transgender persons (refusal to cover transition-related care).

12. LGBT Health Challenges: The Direct and Indirect Result of Discrimination and Stigma As a result of decades (if not centuries) of stigma and discrimination, LGBT people have higher rates of poverty and, therefore, more difficulty paying for health care, due to: • Fewer, and lower-paying, employment and career opportunities. • Lesser educational opportunities. • Unavailability to same-sex couples and families of tax and other financial benefits routinely available to married couples.

13. LGBT Health Challenges: The Direct and Indirect Result of Discrimination and Stigma The stress of systemic discrimination and stigma (“minority stress”) makes it more difficult for LGBT people to maintain their health. • Direct harmful effects on mental health. • Direct harmful effects on physical health. • Resort to health-harming coping behaviors: abuse of legal and illegal drugs and alcohol; higher rates of tobacco consumption; obesity and eating disorders. David M. Frost, Keren Lehavot and Ilan H. Meyer, Minority Stress and Physical Health Among Sexual Minority Individuals, j. Behav. Med. (2013), http://www.columbia.edu/~im15/papers/frost-lehavot-meyer-in.pdf David J. Lick, Laura E. Durso and Kerri L. Johnson, Minority Stress and Physical Health Among Sexual Minorities, 8 Perspectives on Psych. Sci. 521-548 (2013)

14. Positive Developments in the Law: Legal Recognition of Same-Sex Relationships Obergefell v. Hodges, 135 S. Ct. 2584 (2015); United States v. Windsor, 133 S. Ct. 2675 (2013). • Makes a range of health-related and financial benefits, dependent on marriage, available to same-sex married couples and their children (including health insurance, Medicare, Social Security, and Family and Medical Leave). • Many studies have documented that marriage is beneficial to health. • The Court’s rulings, and Justice Kennedy’s language, is having a transformative effect on social attitudes towards same-sex relationships and lesbian, gay and bisexual people.

15. Positive Developments in the Law: The Affordable Care Act • Health insurance exchanges cannot discriminate on the basis of sexual orientation and gender identity – although many state exchanges still permit insurance plans to exclude coverage of gender transition-related care. • ACA Section 1557, 42 U.S.C. § 18116(a): “an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) [race, national origin], title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.) [sex], the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 794 of title 29 [disability], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments)….” • In a Notice of Proposed Rulemaking, HHS has proposed to treat gender identity discrimination as sex discrimination, and the proposed rules proscribe a range of sill-common discriminatory practices by health plans and health care providers. 80 Fed. Reg. 54172 (Sept. 8, 2015). The comment period closed November 9.

16. Positive Developments in the Law: Interpretation of Sex Discrimination Laws to Cover Gender Identity • Old case law under Title VII and other sex discrimination laws held that the statutes did not cover discrimination against “transsexuals”. • A number of recent court and federal agency decisions have concluded that gender identity discrimination is sex discrimination. E.g., Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Barnes v. City of Cincinnati, 401F.3d 729 (6th Cir.), cert. denied, 546 U.S. 1003 (2005); Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004); Schroerv. Billington, 577 F. Supp.2d 293 (D.D.C. 2008); Macy v. Holder, EEOC Appeal No. 0120120821, 2012 EEOPUB LEXIS 1181 (April 20, 2012). • In the rulemaking proceeding under ACA Section 1557, HHS has proposed to include gender identity discrimination as prohibited sex discrimination. 80 Fed. Reg. 54172, 54176 (Sept. 8, 2015).

17. Positive Developments in the Law: Interpretation of Sex Discrimination Laws to Cover Sexual Orientation • Old case law under Title VII and other sex discrimination laws held that the statutes did not cover discrimination based on sexual orientation, because Congress did not have homosexuals in mind when it enacted the laws. • This rationale was undercut by Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79-80 (1998), a same-sex sexual harassment case, in which the Supreme Court (in an opinion authored by Justice Scalia) held that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” • If Mary is subjected to discrimination because her partner is a woman rather than a man, isn’t that discrimination based on Mary’s sex, or the sex of the person with whom she is associated? • In Price Waterhouse v. Hopkins, 490 U.S. 288 (1989), the Supreme Court held that sex discrimination includes discrimination based on failure to conform to gender stereotypes. • Isn’t Mary’s partnership with/attraction to other women instead of men violation of a gender stereotype? • The EEOC recently concluded that Title VII covers sexual orientation discrimination. Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 EEOPUB LEXIS 1905 (July 16, 2015). In the ACA Section 1557 rulemaking, HHS has invited comments on the legal basis for proscribing sexual orientation discrimination in health care as sex discrimination. 80 Fed. Reg. 54172, 54176 (Sept. 8, 2015).

18. Positive Developments in the Law: Mandated Clinical and Cultural Competency Training for Healthcare Professionals • DC Bill 21-168, the “LGBTQ Cultural Competency Continuing Education Amendment Act of 2015.” • Would require 2 hours of continuing education on LGBT health issues for all licensed, registered and certified health professions with CE requirements. • Exception for individuals, and specific professions, with little or no clinical responsibilities or contact with patients. • Currently before the District of Columbia Council.