WashU Expert: Sepper calls for robust protections against discrimination in health care

The U.S. Department of Health and Human Services (HHS) is considering adoption of anti-discrimination regulations that would apply to all health care providers and build upon the Affordable Care Act (ACA) mandate prohibiting discrimination “on the basis of race, color, national origin, sex, age or disability” for any health program or activity that receives federal financial assistance.


“The Affordable Care Act is our era’s civil rights statute,” said Elizabeth Sepper, JD, associate professor of law at Washington University in St. Louis and expert on health law and religious liberty.

“The ACA is designed to ensure access and inclusion in the health care system for all Americans,” Sepper said. “HHS’s new Nondiscrimination Rule should reflect this fundamental purpose to broadly protect against discrimination on the basis of sex, race, age and disability.”

Sepper spearheaded a group of experts in health care and equality law to submit scholarly comments to HHS secretary Sylvia Mathews Burwell in support of the proposed rule.

The proposed rule includes a number of new protections. Among them:

  • Sex discrimination will be prohibited in federally funded health programs for the first time.
  • Women must be treated equally with men in the health care they receive.
  • Individuals may not be subject to discrimination based on gender identity.
  • The rule bolsters language assistance for people with limited English proficiency, so that individuals are able to communicate more effectively with their healthcare providers.
  • For individuals with disabilities, the rule contains requirements for the provision of auxiliary aids and services.

“Women and LGBT people face persistent and systemic discrimination at the hands of insurers, hospitals and doctors. The Affordable Care Act aims to change this,” Sepper said. “The new Nondiscrimination Rule would help to reduce disparities in our health care system by rooting out pregnancy, sex stereotyping and gender identity discrimination. But HHS should go further and make clear that sexual orientation discrimination is also impermissible under the Affordable Care Act.”

Sepper also organized a group of law and religion scholars to counsel against exempting religious objectors from the ACA’s new sex discrimination requirements.

“Granting religious exemptions to allow sex discrimination would impose substantial burdens on women and sexual minorities in violation of the Establishment Clause of the U.S. Constitution,” Sepper noted. “In the health care context in particular, religiously motivated discrimination can mean health- and life-threatening burdens.”

For more information on the proposed rule change, visit hhs.gov/about/news/2015/09/03/hhs-takes-next-step-advancing-health-equity-through-affordable-care-act.html.

Sepper’s comments to Burwell are available at law.wustl.edu/news/documents/HealthcareEqualityLawExpertsLtr.pdf and law.wustl.edu/news/documents/LawandReligionScholarsComments.pdf.

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