Originally published in the Windy City Times.


Chicago—U.S. Representative Mike Quigley (IL-05) and U.S. Representative Chrissy Houlahan (PA-06) sent a comment letter to the Administration affirming Congress's intent that health plans provide covered services regardless of gender identity or sexual orientation, including assisted reproduction services such as in vitro fertilization. Specifically, they are urging the Department of Health and Human Services (HHS) to clarify the nondiscrimination protections for LGBTQI+ individuals seeking assisted reproduction (AR) services in its final Nondiscrimination in Health Programs and Activities rule, which implements Section 1557 of the Affordable Care Act (ACA). Many plans' policies have been designed for heterosexual couples, and have therefore failed to account for LGBTQI+ individuals who are seeking assisted reproductive services. By not addressing this issue specifically in the rule, HHS leaves room for uncertainty for insurance providers that could mean additional costs and burdens for LGBTQI+ individuals seeking reproductive services such as IVF or surrogacy that different-sex couples do not face.

 

"Everyone should be able to start a family when and if they choose, without unfair or unjust costs or barriers. Far too often, LGBTQI+ individuals endure unfair, unwarranted discrimination when it comes to seeking care. Following the overturning of Roe v. Wade, I am more committed than ever to ensuring individuals can receive equitable access to the full range of reproductive health care services," said Quigley. "When Congress passed the Affordable Care Act, we included Section 1557 to make it clear that any discrimination on the basis of sex — including sexual orientation and gender identity — will not be tolerated. HHS must leave no room for doubt to ensure that all individuals are afforded equitable access to covered reproductive services."

 

 

 

"If and when LGBTQI+ Americans decide to grow their family, they—like their fellow Americans—deserve the peace of mind that they won't be discriminated against as they seek family building services. We can leave no room for uncertainty, which is why I'm proud to join a fellow advocate, Rep. Quigley, to bring attention to nondiscrimination protections outlined in the Affordable Care Act (ACA). At a time in our country's history when tremendous progress has been made to secure the rights of the LGBTQI+ community, we must continue to come together and assure this foundational right to reproductive health care services," said Houlahan .

 

The members wrote, "In 2013, the American Society for Reproductive Medicine defined infertility as "a disease, defined by the failure to achieve a successful pregnancy after 12 months or more of appropriate, timed unprotected intercourse or therapeutic donor insemination." Many health plan policies for AR coverage are based on this definition. Others use a definition of infertility based solely on failure to achieve a pregnancy after a period of unprotected heterosexual intercourse. Both of these definitions, used in this context, place an undue burden on non-heterosexual individuals and couples who wish to reproduce. Health plans using these definitions often impose significant extra costs or complete exclusions of coverage of fertility treatments for LGBTQI+ people. We believe these pervasive policies that focus on cisgender heterosexual couples are inherently discriminatory, and HHS should clarify in the Final Rule that AR coverage, if offered, must be offered without regard to sexual orientation, gender identity, sex characteristics (including intersex traits) or any other factors protected by Section 1557."

 

This letter is endorsed by Physicians for Reproductive Health, National Center for Lesbian Rights, National Women's Law Center, Planned Parenthood, and Lambda Legal.

 

The full text of the letter is available below:

 

Dear Secretary Becerra and Administrator Brooks-LaSure,

 

We write in support of HHS' proposed rule, Nondiscrimination in Health Programs and Activities (Docket HHS-OS-2022-0012), and to urge HHS to explicitly clarify nondiscrimination protections for LGBTQI+ individuals seeking assisted reproduction (AR) services. When Congress passed the Affordable Care Act (ACA) in 2010, it included strong antidiscrimination protections in Section 1557, including a prohibition on discrimination on the basis of sex. Discrimination on the basis of sex includes discrimination on the basis of sexual orientation, gender identity, and sex characteristics, as well as sex stereotypes and pregnancy or related conditions. By explicitly clarifying that prohibited sex discrimination includes these categories, the proposed rule affirms Congress' intent in passing Section 1557 to prohibit all forms of sex discrimination. This is also consistent with case law, including the Supreme Court's 2020 decision in Bostock v. Clayton County. While Section 1557 and the proposed rule as it stands would extend to LGBTQI+ individuals and couples who wish to have children, including via AR, we believe that the proposed rule could be further improved by specifying that health programs and activities should not discriminate against LGBTQI+ individuals by placing conditions on coverage that are centered around different-sex couples. Although this letter focuses on the discrimination LGBTQI+ individuals face in particular, the same 1557 protections should apply to other individuals who also face discrimination in accessing AR services.

 

In 2013, the American Society for Reproductive Medicine defined infertility as "a disease, defined by the failure to achieve a successful pregnancy after 12 months or more of appropriate, timed unprotected intercourse or therapeutic donor insemination." Many health plan policies for AR coverage are based on this definition. Others use a definition of infertility based solely on failure to achieve a pregnancy after a period of unprotected heterosexual intercourse. Both of these definitions, used in this context, place an undue burden on non[1]heterosexual individuals and couples who wish to reproduce. Health plans using these definitions often impose significant extra costs or complete exclusions of coverage of fertility treatments for LGBTQI+ people. We believe these pervasive policies that focus on cisgender heterosexual couples are inherently discriminatory, and HHS should clarify in the Final Rule that AR coverage, if offered, must be offered without regard to sexual orientation, gender identity, sex characteristics (including intersex traits) or any other factors protected by Section 1557.

 

AR includes several methods for facilitating reproduction in the case of medical or social infertility. These include intrauterine insemination (IUI), in vitro fertilization (IVF), and surrogacy. Denying such services based on an individual's or couple's inability to have unprotected, procreative sexual intercourse is inherently discriminatory against LGBTQI+ individuals and couples, particularly for the vast majority of same-sex couples for whom sexual intercourse cannot lead to pregnancy. For example, it is discriminatory to deny IUI to a couple composed of two cisgender women based on their inability to engage in procreative sexual intercourse with each other.

 

In Bostock, the Supreme Court considered whether LGBTQ+ workers who were fired from their jobs for their sexual orientation or gender identity were discriminated against on the basis of sex. The Court held 6-3 that the Civil Rights Act's protection against employment discrimination on the basis of sex applied, and that a plain reading of the protection extends to discrimination based on sexual orientation or gender identity. Consistent with the Supreme Court's decision in Bostock, HHS rightly clarifies that nondiscrimination protections on the basis of sex include sexual orientation and gender identity.

 

One of the primary reasons for HHS' undertaking this rulemaking is to ensure consistency with the Bostock decision. We applaud HHS for its efforts, but we believe additional clarity is necessary to ensure covered entities properly comply with the law. We believe that HHS should be more specific about the policies and practices that are mandated or prohibited as a result of Section 1557 and the Bostock decision, such as cases of AR coverage where LGBTQI+ Americans have historically met pervasive discrimination. HHS could do so by including a discussion of fertility care at 42 CFR 92.206(b) in the final rule. The ACA's protections as passed by Congress extend to LGBTQI+ individuals and couples who wish to have children, including via AR. LGBTQI+ Americans deserve the same opportunity as heterosexual and cisgender Americans to start a family, and burdensome and unnecessary requirements that do not contemplate fertility as it relates to LGBTQI+ individuals and couples should not stand in their way.

 

We are united in our commitment to reproductive freedom and to strengthening American families, and we are grateful for your partnership in pursuit of equality. Thank you for your consideration of these comments.