Health Law Daily HS proposes rule that would drop abortion, gender identity from inclusion in sex discrimination
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Tuesday, May 28, 2019

HS proposes rule that would drop abortion, gender identity from inclusion in sex discrimination

By Cathleen Calhoun, J.D.

Why is HHS proposing a rule to stop including abortion and gender identity from sex discrimination in healthcare?

"On the basis of sex" discrimination would not include gender identity and abortion under regulatory reform proposed by the U.S. Department of Health and Human Services (HHS) under section 1557 of the Affordable Care Act (ACA) (P.L. 111-148). Under section 1557 of the ACA, Congress required HHS to apply civil rights laws and regulations to healthcare and the ACA Exchanges, including the law prohibiting discrimination on the basis of sex in certain federally funded programs. In 2016, HHS issued a new rule redefining discrimination "on the basis of sex" to include termination of pregnancy and gender identity—one’s internal sense of being "male, female, neither, or a combination of male and female." The advance release of the proposed rule outlines the changes.

Court ruling. After the 2016 rule that redefined discrimination on the basis of sex to include gender identity and termination of pregnancy, several states and healthcare entities filed federal lawsuits against HHS. The U.S. District Court for the Northern District of Texas issued an opinion in Franciscan Alliance, Inc. et al. v. Burwell, in December 2016 that preliminarily enjoined HHS’s attempt to prohibit discrimination on the basis of gender identity and termination of pregnancy as sex discrimination in section 1557. HHS stated that since the preliminary injunction continues to be in effect, HHS cannot (and has not since the injunction), enforce those portions of the rule. According to HHS, the proposed rule would revise the provisions subject to those injunctions to conform with the plain understanding recognized by the court.

Proposed rule. The proposed rule does not create a new definition of discrimination "on the basis of sex." However, definitions are changed so that sex discrimination does not include gender identity and termination of pregnancy. The proposed rule would also:

  • eliminate the 2016 regulation’s requirement that regulated health companies distribute non-discrimination notices and "tagline" translation notices in at least fifteen languages to patients and customers.
  • remove portions of the 2016 regulation that are duplicative of, or inconsistent with, its regulations implementing Title VI, Title IX, Section 504, and the Age Act, since the 2016 regulation imposed a new single enforcement structure for every type of discrimination claim.
  • revise the 2016 regulation’s interpretation of section 1557 as applying to all operations of an entity, even if it is not principally engaged in healthcare.
  • add a regulatory provision stating that Section 1557 will be enforced consistent with the ACA’s healthcare conscience protections (Section 1303 concerning abortion and Section 1553 concerning assisted suicide); healthcare conscience laws set forth in the Church, Coats-Snowe, Weldon, Hyde, and Helms Amendments; the Religious Freedom Restoration Act; and the First Amendment to the Constitution.

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