Research at IRWG


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Organizational Constructions of a New Right

Primary Investigator(s): 
Anna Kirkland
In Collaboration With/Organization: 
National Science Foundation
Award Year: 

When the Affordable Care Act passed in the U.S. in 2010, it contained a clause prohibiting sex discrimination by any covered health care entity, from hospitals to laboratories to the insurance exchanges. This provision, termed Section 1557, is the first federal extension of the right to be free from sex discrimination in health care. No state had a similar law already. The Obama administration has interpreted sex discrimination broadly, promoting sexual orientation and transgender inclusion within it. When new regulations went into effect on July 18, 2016, patients across the nation obtained not only a new right, but access to a compliance and grievance officer who must be appointed in any health care entity that takes federal funds and has more than fifteen employees. This timely and urgent research captures the new practices and frameworks that are being developed right now.

This project will examine the implementation and understanding of the new Section 1557 ban on sex discrimination from the perspective of the people designated to receive complaints. These are the employees in health care sites around the country who will implement the new regulations. The designated grievance handlers (Kirkland's term) will frame what the sex discrimination ban means in practice. Current research by the PI has established that Section 1557 is not yet frequently invoked, but attorneys and activists expect it to become much more prominent. The most active site of meaning making now, however, is within organizations as they set up how to comply and with what. The research will explore the frameworks, trainings, policies, assumptions, signage, and signals of compliance that the designated grievance handlers within health care settings use to make sense of their new obligations through site visits and interviews.

The hypotheses incorporate insights from research into organizational uptake of civil rights laws in other settings, assuming that the more powerful institutional actors in the health care settings may find many ways to diminish the power of new rights claims. Yet we also know that health-based rights have sometimes been quite successful for women and sexual minorities, and so the research also anticipates ways that this new setting may provide more receptive grounds. The research design captures the fact that adaptation to the new sex discrimination right may vary widely based on the liberal or conservative politics of the area, particularly on LGBT rights, and across different types of health care organizations. The data will come from 90-120 qualitative interviews with the person designated to handle Section 1557 disputes in hospitals (Catholic and non-Catholic), physicians’ practices, and ambulatory surgical centers in parts of the United States rated most hostile to LGBT rights by the Transgender Law Center (Alabama, Michigan) and rated most receptive (New York, California).

This research will make intellectual contributions and have broad impacts. It engages significant questions about interconnections between law, health, and civil rights. How can law help establish a new regime of gender and sexuality-based rights? How does a new civil right with history in other locations (the workplace, education) migrate into health care? What new meanings may constitute it there? Will health become a powerful background for new rights, as it has been for some social movements? Health care organizations focus on very different problems than civil rights, like infection rates, costs, and billing. How will they become civil rights administrators, particularly in this crucial first stage? The project benefits society by delivering the first analysis of Section 1557 enactment within the places that millions of patients flow through every year to have one-on-one interactions with health care providers and staff. 

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