On Monday, the Department of Health and Human Services (“HHS”) announced that Section 1557 of the Affordable Care Act (“Section 1557”) reintroduces the prohibition of discrimination “based on gender” to include gender identity and protect transgender patients from discrimination by the insured Facilities. 1
Section 1557 prohibits discrimination based on race, skin color, national origin, disability, age, and gender in health programs and activities that receive federal financial support.2 The law itself is a patchwork of non-discrimination laws – it borrows bans against discrimination in certain areas from fundamentals from existing civil rights laws. The prohibition of discrimination on the basis of sex according to § 1557 results from the reference to Title IX of the educational changes of 1972 (“Title IX”). 3
When it was introduced in 2010, Section 1557 was protected from discrimination based on gender identity. The bill was challenged in 2016, and in 2019 HHS issued a notice of proposed rulemaking related to Section 1557.4. In June 2020, HHS issued its final rule abolishing the protection of health care based on gender identity on the grounds that protection “expanded the level of the meaning of the underlying civil rights laws” too far
But just three days before HHS final decision, the Bostock Supreme Court v Clayton County had ruled that Title VII’s prohibition of “gender discrimination” includes sexual orientation and gender identity.6 HHS yesterday’s announcement resolves the ” accordion-like swamp “, which we described in a June 2020 legal update that included gender identity and sexual orientation under Title VII” on the basis of gender – but has been interpreted by at least one executive agency to mean that the same applies for § 1557 against Title IX.7
In March 2021, the Department of Civil Rights of the US Department of Justice (“DOJ”) issued a memorandum to the Federal Agency’s Civil Rights Directors and General Counsels that the Supreme Court’s analysis of Title VII at Bostock also applied to Title IX. 8 In short, the prohibition of sex discrimination in Title IX also prohibits discrimination based on sexual orientation and gender identity
Citing the Bostock decision, a number of jurisdictions since then, and the DOJ memorandum, HHS stated that it would interpret and enforce the Section 1557 prohibition of gender discrimination to include sexual orientation and gender identity.10 HHS said, that “[t]Its interpretation will guide OCR in handling complaints and conducting investigations. “11 And like the Bostock Supreme Court, HHS has recognized the law to restore religious freedom – and has declared it will continue to comply with that law” and all other legal requirements. “12
We can assume that HHS is now seriously starting to enforce Section 1557 in accordance with the Bostock Decision. In future updates, we will discuss various factual patterns and scenarios that we expect to be the subject of potential complaints and enforcement actions from HHS.
1 Notice on the Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the 1972 Educational Changes, https://www.hhs.gov/sites/default/files/ocr-bostock-notification.pdf (last accessed) May 11, 2021).
2 Section 1557 of the Law on Patient Protection and Affordable Care, Non-Discrimination Requirements, 45 CFR Section 92.2 (2020).
4 HHS closes rule on Section 1557, June 12, 2020, https://www.hhs.gov/about/news/2020/06/12/hhs-finalizes-rule-section-1557-protecting-civil-rights-health from care.html (last accessed on May 11, 2021).
5 Final rule, June 12, 2020, https://www.federalregister.gov/documents/2020/06/19/2020-11758/nondiscrimination-in-health-and-health-education-programs-or-activities-delegation – of authority (last accessed May 11, 2021)
6 Bostock v Clayton County, 590 US __ (2020), https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf (last accessed May 11, 2021).
7 HHS issues the final rule on Section 1557, https://www.seyfarth.com/news-insights/hhs-issues-final-rule-on-section-1557.html (last accessed May 11, 2021).
8 Memorandum to the civil rights directors and general counsels of the Federal Agency, https://www.justice.gov/crt/page/file/1383026/download (last accessed on May 11, 2021).
10 Communication on the Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, https://www.hhs.gov/sites/default/files/ocr-bostock-notification.pdf (last accessed) May 11, 2021).
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