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Published online by Cambridge University Press: 01 January 2021
Nondiscrimination rules—statutes, regulations, and soft law protections—are critical for reducing health and health care disparities. Although scholarship has interrogated how nondiscrimination rules affect behavior by discriminators, comparatively little has considered how protections can affect choices made by members of protected groups. A number of states and some interpretations of federal law protect people from discrimination on the basis of sexual orientation. This Article seeks to identify relationships between actual state law, perceived state law, and experiences of discrimination and medical mistrust. This Article reports the results of a national cross-sectional survey of over 3,000 men using Grindr to meet male partners. Participants scored comparable to chance in knowledge about state nondiscrimination protections, with “optimistic errors” (erroneous beliefs that one was protected) significantly more common than pessimistic errors. Perceptions of protection were significantly correlated with lower medical mistrust and greater uptake of care, as well as lower perceived barriers to disclosure and care-seeking. Actual state law protections, however, were significant predictors of having had discussions with providers that depended on disclosure of sexual behavior or orientation. Building on these results, this Article considers pathways by which nondiscrimination law may exert welcome mat (and “unwelcome mat”) effects.
1 See Nondiscrimination in Health and Health Education Programs or Activities, 84 Fed. Reg. 27,846 (proposed June 14, 2019). This was an about-face from HHS's 2016 final rules, which interpreted a provision of the Affordable Care Act—§ 1557, a wide-ranging nondiscrimination law—to protect people who experienced discrimination in health care due to gender identity, sex stereotyping, and limited English proficiency. Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376 (May 18, 2016) (codified at 45 C.F.R. pt. 92).
2 Protecting Statutory Conscience Rights in Health Care, Delegations of Authority, 84 Fed. Reg. 23,170 (May 21, 2019) (codified in 45 C.F.R. pt. 88).
3 Zarda v. Altitude Express, 883 F.3d 100 (2d Cir. 2017), cert. granted, 203 L. Ed. 2d 754 (U.S. Apr. 22, 2019) (No. 17-1623).
4 See Abby Goodnough et. al., Trump Administration Proposes Rollback of Transgender Protections, N.Y. Times (May 24, 2019), https://www.nytimes.com/2019/05/24/us/politics/donald-trump-transgender-protections.html.
5 See generally Jerome Hunt, Ctr. for Am. Progress Action Fund, A State-by-State Examination of Nondiscrimination Laws and Policies (2012), https://www.americanprogress.org/wp-content/uploads/issues/2012/06/pdf/state_nondiscrimination.pdf.
6 Ryan Thoreson, “You Don't Want Second Best”: Anti-LGBT Discrimination in US Health Care, Human Rights Watch (July 23, 2018), https://www.hrw.org/report/2018/07/23/you-dont-want-second-best/anti-lgbt-discrimination-us-health-care; see also MaryBeth Muscemi et al., HHS's Proposed Changes to Non-Discrimination Regulations Under ACA Section 1557, Kaiser Family Found. (July 1, 2019), https://www.kff.org/disparities-policy/issue-brief/hhss-proposed-changes-to-non-discrimination-regulations-under-aca-section-1557.
7 See infra Part II.B.
8 See generally Richard H. McAdams, The Expressive Powers of Law: Theories and Limits (2015) (advancing several theories of the expressive function of law).
9 See, e.g., Anderson, Elizabeth S. & Pildes, Richard L., Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503 (2000)CrossRefGoogle Scholar; Cooter, Robert, Expressive Law and Economics, 27 J. Legal. Stud. 585 (1998)CrossRefGoogle Scholar; DePianto, David E., Sticky Compliance: An Endowment Account of Expressive Law, 2014 Utah L. Rev. 327 (2014)Google Scholar; Geisenger, Alex C., A Belief Change Theory of Expressive Law, 88 Iowa L. Rev. 35 (2002)Google Scholar; Geisenger, Alex C. & Stein, Michael A., Expressive Law and the Americans with Disabilities Act, 114 Mich. L. Rev. 1061 (2016)Google Scholar; Kahan, Dan M., Social Influence, Social Meaning, and Deterrence, 83 Va. L. Rev. 349 (1997)CrossRefGoogle Scholar; Lessig, Lawrence, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943 (1995)CrossRefGoogle Scholar; McAdams, Richard H., An Attitudinal Theory of Expressive Law, 79 Or. L. Rev. 339 (2000)Google Scholar; McAdams, Richard H., A Focal Point Theory of Expressive Law, 86 Va. L. Rev. 1649 (2000)CrossRefGoogle Scholar; Sunstein, Cass R., On the Expressive Function of Law, 144 U. Pa. L. Rev. 2021 (1996)CrossRefGoogle Scholar; Wittlin, Maggie, Buckling Under Pressure: An Empirical Test of the Expressive Effects of Law, 28 Yale J. Reg. 419 (2011)Google Scholar. For several critiques of this literature, see Adler, Matthew D., Expressive Theories of Law: A Skeptical Overview, 148 U. Pa. L. Rev. 1363 (2000)CrossRefGoogle Scholar (arguing that expressive theories misconstrue moral factors such as culture, desert, or self-respect as “linguistic meaning,” and suggesting that the linguistic meanings of law cannot carry moral weight in decisions about complying with law); Scott, Robert E., The Limits of Behavioral Theories of Law and Social Norms, 86 Va. L. Rev. 1603, 1621-37 (2000)CrossRefGoogle Scholar (arguing that expressive theories explaining how law influences social norms are imprecise and lacking in mechanisms to explain internalization).
10 See Thoreson, supra note 6.
11 Underhill, Kristen, Raising the Stakes for Nondiscrimination Protections in the ACA, 48 Hastings Ctr. Rep. 8, 8 (2018)CrossRefGoogle ScholarPubMed.
12 Underhill, Kristen et al., A Qualitative Study of Medical Mistrust, Perceived Discrimination, and Risk Behavior Disclosure to Clinicians by U.S. Male Sex Workers and Other Men Who Have Sex with Men: Implications for Biomedical HIV Prevention, 92 J. Urb. Health 667 (2015)CrossRefGoogle ScholarPubMed; Underhill, Kristen et al., Access to Healthcare, HIV/STI Testing, and Preferred Pre-Exposure Prophylaxis Providers Among Men Who Have Sex with Men and Men Who Engage in Street-Based Sex Work in the U.S., 9 Pub. Libr. Sci. One e112425 (2014)Google Scholar; Underhill, Kristen et al., Could FDA Approval of Pre-Exposure Prophylaxis Make a Difference? A Qualitative Study of PrEP Acceptability and FDA Perceptions Among Men Who Have Sex with Men, 18 AIDS & Behav. 241 (2014)CrossRefGoogle ScholarPubMed; Underhill, Kristen et al., Explaining the Efficacy of Pre-Exposure Prophylaxis (PrEP) for HIV Prevention: A Qualitative Study of Message Framing and Messaging Preferences Among U.S. Men Who Have Sex with Men, 20 AIDS & Behav. 1514 (2016)CrossRefGoogle ScholarPubMed; Underhill, Kristen et al., Temporal Fluctuations in Behavior, Perceived HIV Risk, and Willingness to Use Pre-Exposure Prophylaxis (PrEP), 47 Archives Sexual Behav. 2109 (2018)CrossRefGoogle Scholar.
13 For instance, there is some evidence that gay and bisexual men choose live in progressive urban areas within more conservative states—where their daily experiences may be supportive, but the state legislation is not. See, e.g., Egan, James E. et al., Migration, Neighborhoods, and Networks: Approaches to Understanding How Urban Environmental Conditions Affect Syndemic Adverse Health Outcomes Among Gay, Bisexual and Other Men Who Have Sex with Men, 15 AIDS & Behav. 35 (2011)CrossRefGoogle ScholarPubMed.
14 See, e.g., Rowell, Arden, Legal Knowledge, Belief, and Aspiration, 51 Ariz. St. L.J. 225, 249-65 (2019)Google Scholar; Kunda, Ziva, The Case for Motivated Reasoning, 108 Psych. Bull. 480, 482-90 (1990)CrossRefGoogle ScholarPubMed (identifying and describing the psychological processes that give rise to motivated reasoning); Strickland, April A. et al., Motivated Reasoning and Public Opinion, 36 J. Health Politics Pol’y & L. 935, 936-42 (2011)Google ScholarPubMed (describing how individuals are motivated to defend their health policy beliefs despite receiving discrepant information).
15 See, e.g., Golub, Sarit A. & Gamarel, Kristi E., The Impact of Anticipated HIV Stigma on Delays in HIV Testing Behaviors: Finding rom a Community-Based Sample of Men Who Have Sex with Men and Transgender Women in New York City, 27 AIDS Patient Care STDs 621, 623-24 (2013)CrossRefGoogle Scholar; Frye, Victoria et al., Sexual Orientation and Race-Based Discrimination and Sexual HIV Risk Behavior among Urban MSM, 19 AIDS Behav. 257, 261-63 (2015)CrossRefGoogle ScholarPubMed; Irvin, Risha et al., A Study of Perceived Racial Discrimination in Black Men Who Have Sex with Men and Its Association with Healthcare Utilization and HIV Testing, 18 AIDS Behav. 1272, 1274-76 (2014)CrossRefGoogle ScholarPubMed; Thorburn, Sheryl et al., Health-Related Correlates of Perceived Discrimination in HIV Care, 18 AIDS Patient Care STDs 19, 22–23 (2004)Google Scholar; Hoyt, Michael A. et al., HIV/AIDS-Related Institutional Mistrust Among Multiethnic Men Who Have Sex with Men, 31 Health Psychol. 269, 272-73 (2012)CrossRefGoogle ScholarPubMed; Burgess, Diana et al., Effects of Perceived Discrimination on Mental Health and Mental Health Services Utilization among Gay, Lesbian, Bisexual, and Transgender Persons, 3 J. LGBT Health Res. 1 (2007)CrossRefGoogle ScholarPubMed. Many more references here specific to each characteristic.
16 For an elegant description of stigma across six stigmatized statuses and seven domains of social participation, see Hatzenbuehler, Mark L. et al., Stigma as a Fundamental Cause of Population Health Inequalities, 103 Am. J. Pub. Health 813 (2013)CrossRefGoogle ScholarPubMed.
17 Lambda Legal, When Health Care Isn’t Caring 5 (2014), https://www.lambdalegal.org/publications/when-health-care-isnt-caring.
18 Shabab Ahmed Mirza & Caitlin Rooney, Discrimination Prevents LGBTQ People From Accessing Health Care, Center for Am. Progress, (Jan. 18, 2018, 9:00 AM), https://www.americanprogress.org/issues/lgbt/news/2018/01/18/445130/discrimination-prevents-lgbtq-people-accessing-health-care.
19 See Jennifer Kates et al., Health and Access to Care and Coverage for Lesbian, Gay, Bisexual, and Transgender Individuals in the U.S., Kaiser Family Found. (May 3, 2018), https://www.kff.org/disparities-policy/issue-brief/health-and-access-to-care-and-coverage-for-lesbian-gaybisexual-and-transgender-individuals-in-the-u-s; Swartz, James A., The Relative Odds of Lifetime Health Conditions and Infectious Diseases Among Men Who Have Sex with Men Compared with a Matched General Population Sample, 9 Am. J. Men’s Health 150, 156-57 (2015)CrossRefGoogle ScholarPubMed.
20 See Shepherd, Lois, HIV, the ADA, and the Duty to Treat, 37 Hous. L. Rev. 1055, 1082-83, 1091 (2000)Google ScholarPubMed (arguing in favor of a duty to treat, but noting that “the law does not place any duty upon physicians to provide care to any particular patient …. When federal and state antidiscrimination laws do apply to physicians, such statutes generally only protect against certain kinds of discrimination, and do not amount to any comprehensive duty to treat.”).
21 See discussion infra Parts I.A.1, I.A.3.
22 Title II of the Civil Rights Act of 1964 notably does not include hospitals or physicians' practices, making Title VI the principal source of federal protections in the health care context. 42 U.S.C. § 2000a (2018).
23 42 U.S.C. § 18116 (2018).
24 This imports a restriction previously in place under Title VI of the Civil Rights Act; HHS applied these protections to hospitals receiving Medicare Part A, but not to individual physicians participating in Part B. Although most physicians receive multiple sources of federal funding (and will thus be subject to the ACA nondiscrimination rules), some have argued that the exclusion of Medicare Part B-only physicians is contrary to § 1557 language including “contrac[s] of insurance” as qualifying federal funds. See Johnson, Sandra H., The ACA's Provision on Nondiscrimination Takes Shape, 46 Hastings Ctr. Rep. 5, 6 (2016)Google ScholarPubMed.
25 Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376, 31,440 (May 18, 2016) (to be codified at 45 C.F.R. pt. 92). This would be a change to permissible claims under the Title VI of the Civil Rights Act, for which private rights of action are unavailable for disparate impact claims. See Alexander v. Sandoval, 532 U.S. 275, 293 (2001). HHS reasoned in the regulations that the Age Discrimination Act authorizes a private right of action for disparate impact, and that Congress's intent in the ACA §1557 was to treat all the underlying nondiscrimination laws equally. Rather than withdrawing protections under the Age Act, HHS's implementing regulations extended a private right of action to claimants bringing disparate impact claims on any of the protected characteristics.
26 45 C.F.R. §§ 92.101, 92.4 (2019).
27 Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. at 31,389-90.
28 Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660, 670 (N.D. Tex. 2016).
29 Julie Hirschfeld Davis & Helene Cooper, Trump Surprises Military with Transgender Ban, N.Y. Times, July 26, 2017, at A1, A18. Between June and August of 2018, HHS also removed language about nondiscrimination protections on the basis of gender identity and sex stereotyping from its website. Rachel Bergman & Jon Campbell, HHS removes sex discrimination prohibition language from civil rights office website, Sunlight Found. (July 19, 2018 5:00 AM), https://sunlightfoundation.com/2018/07/19/hhs-removes-sex-discrimination-prohibition-language-from-civil-rights-office-website.
30 Alan Feuer, Justice Department Claims Gay Workers Aren't Protected by Major Civil Rights Law, N.Y. Times, July 27, 2017, at A17; Brief for the United States as Amicus Curiae Supporting Petitioners, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 1719 (2018) (No. 16-111).
31 Moral Exemptions and Accommodations for Coverage of Certain Preventive Services under the Affordable Care Act, 82 Fed Reg. 47,838 (Oct 13, 2017) (to be codified at 26 C.F.R. pt. 2590).
32 Nondiscrimination in Health and Health Education Programs or Activities, 84 Fed. Reg. 27,846 (June 14, 2019) (to be codified at 45 C.F.R. pts. 438, 440, 460).
33 For overviews of the proposed regulations, highlighting changes from the 2016 rules, see Katie Keith, HHS Proposes to Strip Gender Identity, Language Access Protections from ACA Anti-Discrimination Rule, Health Aff. (May 25, 2019), https://www.healthaffairs.org/do/10.1377/hblog20190525.831858/full; Office for Civil Rights, U.S. Dept’ of Educ., Fact Sheet: HHS Proposes to Revise ACA Section 1557 Rule (2019), https://www.hhs.gov/sites/default/files/factsheet-section-1557.pdf; see also Muscemi et al., supra note 6.
34 Nondiscrimination in Health and Health Education Programs or Activities, 84 Fed. Reg. at 27,887. They must, however, post signs advising providers of their rights to refuse care to patients on conscience grounds.
35 Id. at 27, 849.
36 Id. at 27, 870-71.
37 Id. at 27, 864, 27,869.
38 Id. at 27,883-84.
39 42 U.S.C. § 2000d (2018).
40 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
41 Altitude Express, Inc. v. Zarda, 139 S. Ct. 1599 (2019) (granting petition for writ of certiorari); consolidated with Bostock v. Clayton County, Georgia, 139 S. Ct. 1599 (2019); see also Hively v. Ivy Tech. Community College of Ind., 853 F.3d 339 (7th Cir. 2017) (finding that Title VII prohibits discrimination on the basis of sexual orientation).
42 20 U.S.C. § 1681 (2018); see also Jared P. Cole & Christine J. Back, Cong. Research Serv., LSB10229, Title IX: Who Determines the Legal Meaning of “Sex”? 1 (2018). See, e.g., Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1047-48 (7th Cir. 2017) (looking to Title VII interpretations of “sex” to include sex stereotyping, and interpreting Title IX as prohibiting discrimination against transgender individuals due to sex stereotyping).
43 42 U.S.C. § 18116(a) (2018).
44 See e.g., Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp. 2d 135 (N.D.N.Y. 2011); Riccio v. New Haven Bd. of Ed., 467 F. Supp. 2d 219 (D. Conn. 2006); Harrington by Harrington v. City of Attleboro, 2018 WL 475000 (D. Mass., Jan 17, 2018); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015).
45 Gibbons v. Ogden, 22 U.S. 1, 78 (1824).
46 Equality Maps: Non-Discrimination Laws, Movement Advancement Project, http://www.lgbtmap.org/equality-maps/non_discrimination_laws (last updated Mar. 16, 2020). The three exceptions are North Carolina (bar on local law left intact through 2020 despite recent revisions to HB2), Tennessee, and Arkansas (whose bar on local ordinances was recently upheld by the Arkansas Supreme Court).
47 For an example, see N.Y. Exec. Law § 296 (Consol. 2020).
48 See N.Y.C. Admin. Code § 8-107 (2020).
49 See Grant, Darren & Alfred, Kelly C., Sanctions and Recidivism: An Evaluation of Physician Discipline by State Medical Boards, 32 J. Health Politics, Pol’y & L. 867 (2007)CrossRefGoogle ScholarPubMed (describing the process of provider discipline and a summary of state sanctions during an eight-year period).
50 Joint Comm’n, Advancing Effective Communication, Cultural Competence, and Patient-and Family-Centered Care for the Lesbian, Gay, Bisexual, and Transgender (LGBT) Community: A Field Guide 2-3 (2011).
51 Nondiscrimination Policy H-65.983, Am. Med. Ass’n, https://policysearch.amaassn.org/policyfinder/detail/65.983?uri=%2FAMADoc%2FHOD.xml-0-5112.xml (last modified 2017); Nondiscriminatory Policy for the Health Care Needs of LGBT Populations H-65.976, Am. Med. Ass’n, https://policysearch.ama-assn.org/policyfinder (search “H-65.976”) (last modified 2017).
52 Conger, J.J., Proceedings of the American Psychological Association, Incorporated, for the Year 1974: Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychol. 620, 633 (1975)CrossRefGoogle Scholar.
53 See, e.g., Provider Directory, GLMA: Health Prof’ls Advancing LGBT Equal., https://glmaimpak.networkats.com/members_online_new/members/dir_provider.asp (last visited Mar. 17, 2020).
54 Church and Weldon Amendments, see 42 U.S.C. § 300a-7 (2018); Weldon Amendment, Consolidated Appropriations Act, 2009, Pub. L. No. 111-117, 123 Stat. 3034 (2009). The executive order governing conscience clause exemptions during the Bush era encompassed far more, protecting institutional and individual providers who “refuse[d] to perform health care services and research activities to which they may object for religious, moral, ethical, or other reasons.” Ensuing that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, 73 Fed. Reg. 78,072 (Dec. 19, 2008) (codified at 45 C.F.R. § 88). HHS replaced these exemptions under the Obama administration in 2011, which limited federal protection to enforcement of the Church and Weldon Amendments. Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws, 76 Fed. Reg. 9968 (Feb. 23, 2011) (codified at 45 C.F.R. § 88).
55 Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,792 (Oct. 13, 2017); Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,838 (Oct. 13, 2017).
56 Protecting Statutory Conscience Rights in Health Care; Delegations of Authority, 84 Fed. Reg. 23,170 (May 21, 2019).
57 Id. at 23, 229.
58 Id. at 23, 200-01.
59 See Olga Khazan, When the Religious Doctor Refuses to Treat You, Atlantic (Jan. 23, 2018), https://www.theatlantic.com/health/archive/2018/01/when-the-religious-doctor-refuses-to-treat-you/551231.
60 See Selena Simmons-Duffin, Courts Order Delay Of Trump Administration's Health Care ‘Conscience Rights’ Rule, Nat’l Pub. Radio (July 1, 2019, 3:30 PM), https://www.npr.org/sections/health-shots/2019/07/01/737712566/courts-order-delay-of-trump-administrations-health-care-conscience-rights-rule.
61 This office is headed by Roger Severino, who has advocated against same-sex marriage. Emma Green, The Man Behind Trump's Religious-Freedom Agenda for Health Care, Atlantic (June 7, 2017), https://www.theatlantic.com/politics/archive/2017/06/the-man-behind-trumps-religious-freedom-agenda-for-health-care/528912.
62 HHS Announces New Conscience and Religious Freedom Division, U.S. Dep’t of Health & Human Services (Jan. 18, 2018), https://www.hhs.gov/about/news/2018/01/18/hhs-ocr-announces-new-conscience-and-religious-freedom-division.html (detailing the broad purpose and enforcement authority of the Conscience and Religious Freedom Division).
63 Simmons-Duffin, supra note 60.
64 See, e.g., Sawicki, Nadia, Mandating Disclosure of Conscience-Based Limitations on Medical Practice, 42 Am. J.L. & Med. 85 (2016)CrossRefGoogle ScholarPubMed (providing an overview of conscience clause disclosures); Sepper, Elizabeth, Taking Conscience Seriously, 98 Va. L. Rev. 1501, 1509-14 (2012)Google Scholar (describing features of conscience state and federal clause legislation).
65 See, e.g., Mississippi H.B. No. 1523, codified at Miss. Code Ann. § 11-62-3 et seq. (2020) (barring the state from discriminating against an individual who refuses to participate in certain treatments, counseling, or surgeries based on “the belief or conviction that: (a) Marriage is or should be recognized as the union of one man and one woman;(b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth”).
66 See Jonathan Griffin, Religious Freedom Restoration Acts, Nat’l Conf. State Legislatures (May 2015), https://www.ncsl.org/research/civil-and-criminal-justice/religious-freedom-restoration-acts-lb.aspx; State Religious Freedom Restoration Acts, Nat’l Conf. State Legislatures (May 2017), https://www.ncsl.org/research/civil-and-criminal-justice/state-rfra-statutes.aspx; Ryan Thoreson, “All We Want is Equality”: Religious Exemptions and Discrimination against LGBT People in the United States, Human Rights Watch (Feb. 19, 2018), https://www.hrw.org/report/2018/02/19/all-we-want-equality/religious-exemptions-and-discrimination-against-lgbt-people.
67 Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 1719, 1732 (2018).
68 See, e.g., Deutsch, Elizabeth B., Note, Expanding Conscience, Shrinking Care: The Crisis in Access to Reproductive Care and the Affordable Care Act's Nondiscrimination Mandate, 124 Yale L.J. 2470, 2475-76 (2015)Google Scholar.
69 Request for Information from Faith-Based Organizations about Lifting Regulations, 82 Fed. Reg. 49,300 (Oct. 25, 2017).
70 Curlin, Farr A. et al., Religion, Conscience, and Controversial Clinical Practices, 356 New Eng. J. Med. 593, 597 (2007)CrossRefGoogle ScholarPubMed.
71 Dovidio, John F. & Fiske, Susan T., Under the Radar: How Unexamined Biases in Decision-Making Processes in Clinical Interactions Can Contribute to Health Care Disparities, 102 Am. J. Pub. Health 945 passim (2012)CrossRefGoogle ScholarPubMed; Sabin, Janice A. et al., Health Care Providers' Implicit and Explicit Attitudes Toward Lesbian Women and Gay Men, 105 Am. J. Pub. Health 1831 passim (2015)CrossRefGoogle ScholarPubMed.
72 Beyrer, Chris et al., A Call to Action for Comprehensive HIV Services for Men Who Have Sex with Men, 380 Lancet 424, 427 (2012)Google Scholar; Mayer, Kenneth H. et al., Comprehensive Clinical Care for Men Who Have Sex with Men: An Integrated Approach, 380 Lancet 378, 378, 384-85 (2012)CrossRefGoogle Scholar.
73 See Dovidio & Fiske, supra note 71, at 947; Kates et al., supra note 19, at 14; Sabin et al., supra note 71, at 1831-32, 1840.
74 Barron, Laura G. & Hebl, Michelle, The Force of Law: The Effects of Sexual Orientation Discrimination Legislation on Interpersonal Discrimination in Employment, 19 Psych., Pub. Pol’y & L. 191 (2013)Google Scholar.
75 Id.
76 See, e.g., Collins, William J., The Labor Market Impact of State-Level Anti-Discrimination Laws, 1940-1960, 56 Indus. & Lab. Rel. Rev. 244 (2003)Google Scholar.
77 See, e.g., Lahey, Joanna, State Age Protection Laws and the Age Discrimination in Employment Act, 51 J. L. & Econ. 433, 433, 450 (2008)CrossRefGoogle Scholar.
78 See Blosnich, John R. et al., Mental Health of Transgender Veterans in US States With and Without Discrimination and Hate Crime Legal Protection, 106 Am. J. Pub. Health 534 (2016)CrossRefGoogle ScholarPubMed; Hatzenbuehler, Mark L. et al., Effect of Same-Sex Marriage Laws on Health Care Use and Expenditures in Sexual Minority Men, 102 Am. J. Pub. Health 285 (2012)CrossRefGoogle ScholarPubMed; Hatzenbuehler, Mark L. et al., State-Level Policies and Psychiatric Morbidity in Lesbian, Gay, and Bisexual Populations, 99 Am. J. Pub. Health 2275 (2009)CrossRefGoogle ScholarPubMed; Hatzenbuehler, Mark L. et al., The Impact of Institutional Discrimination on Psychiatric Disorders in Lesbian, Gay, and Bisexual Populations: A Prospective Study, 100 Am. J. Pub. Health 452 (2010)CrossRefGoogle ScholarPubMed [hereinafter Hatzenbuehler et al., Institutional Discrimination]; Hatzenbuehler, Mark L., The Social Environment and Suicide Attempts in Lesbian, Gay, and Bisexual Youth, 127 Pediatrics 896, 897 (2011)CrossRefGoogle ScholarPubMed; Oldenburg, Catherine E. et al., State-Level Structural Sexual Stigma and HIV Prevention in a National Online Sample of HIV-Uninfected MSM in the United States, 29 AIDS 837, 839 (2015)CrossRefGoogle Scholar; Riggle, Ellen D. B. et al., Does It Matter Where You Live? Nondiscrimination Laws and the Experiences of LGB Residents, 7 Sexuality Res. & Soc. Pol’y 168, 169 (2010)Google Scholar; Ross, Michael W. et al., Internalized Homonegativity Predicts HIV-Associated Risk Behavior in European Men Who Have Sex with Men in a 38-Country Cross-Sectional Study: Some Public Health Implications of Homophobia, 3 BMJ Open e001928 (2013)CrossRefGoogle Scholar.
79 Of a piece with this work, a longitudinal study by the same group found that the passage of state constitutional amendments banning same-sex marriage predicted subsequent increases in mood disorders and anxiety, alcohol use disorder, and psychiatric comorbidity among sexual minority populations. See Hatzenbuehler et al., Institutional Discrimination, supra note 78, at 454-55. This comes closer to the question I ask in the present project, but focuses on the signaling impacts of restrictions, and did not interrogate individuals' perceptions of (and explanations for) the law.
80 See, e.g., Riggle et al., supra note 78; Rostosky, Sharon S. & Riggle, Ellen D.B., “Out” at Work: The Relation of Actor and Partner Workplace Policy and Internalized Homophobia to Disclosure Status, 49 J. Counseling Psychol. 411 (2002)CrossRefGoogle Scholar; Waldo, Craig R., Working in a Majority Context: A Structural Model of Heterosexism as Minority Stress in the Workplace, 46 J. Counseling Psychol. 218 (1999)CrossRefGoogle Scholar.
81 Day, Nancy E. & Schoenrade, Patricia, The Relationship Among Reported Disclosure of Sexual Orientation, Anti-Discrimination Policies, Top Management Support and Work Attitudes of Gay and Lesbian Employees, 29 Personnel Rev. 346, 352-59 (2000)CrossRefGoogle Scholar.
82 See Lambert, Jason R., The Impact of Gay-Friendly Recruitment Statements and Due Process Employment on a Firm's Attractiveness as an Employer, 34 Equality, Diversity & Inclusion 510, 514 (2015)CrossRefGoogle Scholar.
83 Pachankis, John E. et al., Anti-LGBT and Anti-Immigrant Structural Stigma: An Intersectional Analysis of Sexual Minority Men's HIV Risk When Migrating to or Within Europe, 76 J. Acquired Immune Deficiency Syndromes 356, 359-62 (2017)CrossRefGoogle ScholarPubMed.
84 See, e.g., M.V. Lee Badgett et al., Williams Inst., Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination 1 (2007), https://williamsinstitute.law.ucla.edu/research/discrimination/bias-in-the-workplace-consistent-evidence-of-sexual-orientation-and-gender-identity-discrimination; William B. Rubenstein, Do Gay Rights Laws Matter? An Empirical Assessment, 75 S. Cal. L. Rev. 65 (2001).
85 Lester, Toni, Queering the Office: Can Sexual Orientation Employment Discrimination Laws Transform Work Place Norms for LGBT Employees, 73 UMKC L. Rev. 643, 664-65 (2005)Google Scholar.
86 Riggle et al., supra note 78 is an example.
87 Anderson & Pildes, supra note 9, at 1565.
88 See McAdams, supra note 9, at 13.
89 See Rubenstein, supra note 84.
90 Eyer, Katie R., That's Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275, 1278 (2012)Google Scholar.
91 Equality Maps: Non-Discrimination Laws, supra note 46.
92 Casey Newton, Overrun by Spambots, Gay Dating App Grindr to End Anonymous Signups, Verge (Jul 26, 2013, 2:25 PM), https://www.theverge.com/2013/7/26/4560338/hey-sexy-overrun-byspambots-gay-hookup-app-grindr-to-end-anonymity.
93 The full medical mistrust score comprises three subscales measuring suspicion, discrimination, and lack of support. Qualitative interviews did not invoke suspicion of doctors' quality of care, but did reflect concern about discrimination and lack of support; given limited time for survey administration, I chose to omit the suspicion subscale and administered the other two subscales in their entirety.
94 For accuracy in perceptions of protections in health care, Pearson's chi-squared = 285.14, p = 0.000, n = 1865. Tests for other types of law were similar.
95 Accuracy about the law varied according to demographic characteristics. I developed a composite score of accuracy across all four types of legal protection. In bivariate correlations, accuracy was greater for men who were older (p<0.001), men who identified as white or Asian compared to Black or other (p<0.001), men with higher incomes (p<0.001), men with greater education (p<0.001), and men who had private insurance, Medicaid, or Medicare compared to being uninsured (p<0.001).
96 Rowell, supra note 14, at 230-31.
97 Ruel Friedman, M. et al., Effects of Syndemics on HIV Viral Load and Medication Adherence in the Multicenter AIDS Cohort Study, 29 AIDS 1087 (2015)CrossRefGoogle Scholar; Egan, James E. et al., Migration, Neighborhoods and Networks: Approaches to Understanding How Urban Environmental Outcomes Affect Syndemic Adverse Health Outcomes Among Gay, Bisexual, and Other Men Who Have Sex with Men, 15 AIDS & Behav. S35 (Supp. 2011)CrossRefGoogle ScholarPubMed; Stall, Ron, Friedman, Mark & Catania, Joseph A., Interacting Epidemics and Gay Men's Health: A Theory of Syndemic Production among Urban Gay Men, in Unequal Opportunity: Health Disparities Affecting Gay and Bisexual Men in the United States 251 (Richard J. Wolitski et al., eds. 2008)Google Scholar
98 Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376 (May 18, 2016) (codified at 45 C.F.R. pt. 92).
99 Maria Caspani, America's Perception on LGBTQ Rights Under Federal Law Largely Incorrect: Reuters/Ipsos, Reuters (June 11, 2019, 6:14 AM), https://www.reuters.com/article/us-usa-lgbt-stonewall-equality-idUSKCN1TC120.
100 HIV Testing, Ctr. for Disease Control & Protection, https://www.cdc.gov/vitalsigns/hiv-testing/index.html (last reviewed Nov. 28, 2017).
101 Rowell, supra note 14, at 277-78.
102 Id. at 262-63.
103 See id. at 240 (describing motivated cognition).
104 Kunda, Ziva, The Case for Motivated Reasoning, 108 Psych. Bull. 480, 480 (1990)CrossRefGoogle ScholarPubMed; see also Rune Slothuus & de Vreese, Claes H., Political Parties, Motivated Reasoning, and Framing Effects, 72 J. Politics 630, 632 (2010)Google Scholar (defining motivated reasoning as a process by which people reason through facts while “striv[ing] to defend and maintain their extant values, identities, and attitudes”).
105 See discussion supra Parts I.A, I.B.
