LGBT legal access to healthcare: ensuring equality and inclusion

LGBT legal access to healthcare: a photo of two hands holding an intersex-inclusive progress pride flag against a blue sky.

“LGBTQ+ legal access to healthcare: exploring the impact on family law, affordable healthcare, and the fight against discrimination.” | Photo credit: ©nito / Adobe Stock

LGBT legal access to healthcare: ensuring equality and inclusion

Hunter ND, Eskridge WN, Gostin LO

The landmark Supreme Court rulings of Obergefell v Hodges (2015) and Bostock v Clayton County (2020) marked significant civil rights victories for the lesbian, gay, bisexual, transgender, and other sexual and gender minority (LGBTQ+) community. These decisions not only paved the way for marriage equality and employment protection but also held the promise of more inclusive family law and affordable access to healthcare. Unfortunately, the recent shift in the Supreme Court's conservative majority raises concerns about potential rollbacks of vital legal protections. This article examines the triumphs and challenges faced by the LGBTQ+ community in their pursuit of equal  legal access to healthcare.

Marriage equality and health benefits

Since Obergefell, over half a million Americans have legally married same-sex partners, leading to significant health benefits. These benefits include a more secure social safety net, access to family health insurance as a job benefit, and the right to make medical decisions for a spouse who becomes incapacitated or hospitalized. 

Despite the absence of evidence showing any negative effects on other families, critics continue to undermine the recognition of same-sex marriages as equal under the law.

Child birth certificates and discrimination

For instance, Arkansas initially prohibited same-sex spouses from being recognized on their child's birth certificate, which not only denigrates families but also poses challenges for the child to access healthcare benefits due to their omission from official documents. However, in the Supreme Court case Pavan v Smith (2017), the Arkansas policy was reversed through a 6-to-3 majority ruling. Similarly, in Houston, when the city began offering health benefits to municipal employees with same-sex domestic partners, the local Republican Party filed a lawsuit to halt it. The subsequent decision by the Texas Supreme Court allowed the lawsuit to proceed.

Job discrimination and healthcare access

Job discrimination has a significant impact on both health and economic security, considering that most Americans obtain health insurance through their workplace. Bostock's interpretation of Title VII in June 2020 now prohibits job discrimination based on an employee's partner's sex or their gender presentation. This ruling is likely to extend to various health-related laws, including the Public Health Service Act (1944), the Family and Medical Leave Act (1993), and access to health insurance under the Affordable Care Act (ACA) (2010). Moreover, federal statutes conditioning health-associated block grants on non-discrimination protections based on sex will now prohibit discrimination based on one's partner's sex or gender identity.

Religious liberty and healthcare rights

The Supreme Court has been cautious not to diminish the importance of religious beliefs. In Obergefell, it emphasized that religious groups could advocate against marriage equality without facing penalties, and in Bostock, it protected the right of religious organizations to choose their own "ministers." However, the debate surrounding religious liberty poses a threat to the healthcare rights of sexual and gender minorities. The conflict between religious exemptions and access to healthcare is evident in the ongoing lawsuits concerning the inclusion of contraceptive services in employer-sponsored health insurance plans.

"The debate surrounding religious liberty poses a threat to the healthcare rights of sexual and gender minorities."

The Future of LGBTQ+ healthcare access

The Affordable Care Act (ACA) includes a general antidiscrimination requirement that prohibits the exclusion of patients from treatment or insurance coverage based on certain characteristics, including sex. The interpretation of sex by the Obama administration encompassed sexual orientation and gender identity, aligning with the Supreme Court's ruling in Bostock. However, the Trump administration reversed this interpretation. President-elect Joseph Biden is expected to reinstate the Obama administration's interpretation, which would restore protections for sexually diverse and gender-diverse populations and thereby ensure LGBT legal access to healthcare.

Everyone, regardless of their sexual orientation or gender identity, has the inherent right to dignity, access to essential health services, and equal and fair treatment. Genuine religious objections can be expressed and practiced, but publicly funded contractors should not be granted the legal right to discriminate against individuals who share the same needs and rights as others in our society. Upholding the principles of equality and inclusion in healthcare is crucial for fostering a just and healthy society and ensuring LGBT legal access to healthcare.

LGBT legal access to healthcare: ensuring equality and inclusion” is adapted from an article by Hunter ND, Eskridge WN, and Gostin LO. “Health Rights for LGBTQ+ Individuals in the US Under Fire.” first published in JAMA Health Forum. 2021;2(1):e201520. doi:10.1001/jamahealthforum.2020.1520. It is republished here under a CC BY 2.0 license.

Article by
Nan D. Hunter, JD; William N. Eskridge Jr, JD; and Lawrence O. Gostin, JD

Nan D. Hunter teaches courses on law and social change at Georgetown University Law Center, where she is Scott K. Ginsburg Professor of Law emerita. Eskridge Jr. is the Alexander M. Bickel Professor of Public Law at Yale Law School. His primary legal academic interest has been statutory interpretation. Lawrence O. Gostin, JD, is the Director of the World Health Organization Collaborating Center on National and Global Health Law.