The Supreme Court ruled in Bostock v. Clayton County that employment discrimination based on gender identity or sexual orientation violates Title VII of the Civil Rights Act.
Sexual Orientation: One’s sexual attractions, whether directed toward individuals of the same sex, the other sex or both sexes.
Gender Identity: One’s internal sense of gender, which may be different from the sex assigned at birth.
On July 25, 2022, the Department of Health and Human Services (HHS) issued a proposed rule that would revise existing regulations for the Section 1557 nondiscrimination protections under the Affordable Care Act (ACA). The proposed rule is intended to solidify protections against discrimination on the basis of sex, including sexual orientation and gender identity.
ACA Section 1557
Section 1557 prohibits discrimination based on sex in any health program or activity that receives federal funds or is administered by a federal agency. A 2016 HHS rule defined “sex” to include sex stereotypes and gender identity, along with pregnancy termination and other pregnancy-related conditions.
In 2020, HHS issued new regulations that changed the 2016 definition of “sex” to allow for distinctions based on “the biological binary of male and female.” However, a federal court blocked HHS from enforcing the 2020 version of the rule. On May 10, 2021, HHS announced that it would now interpret and enforce the Section 1557 prohibition on discrimination based on sex to include discrimination based on sexual orientation and gender identity.
The proposed rule attempts to address gaps identified in prior regulations to advance protections under Section 1557. It would, among other things:
- Clarify the application of Section 1557 nondiscrimination rules to health insurance issuers that receive federal financial assistance;
- Codify nondiscrimination protections on the basis of sex as including discrimination based on sexual orientation and gender identity;
- Clarify that sex discrimination includes discrimination based on pregnancy or related conditions, including “pregnancy termination;” and
- Require covered entities to have Section 1557 policies and training.