By Pension and Benefits Editorial Staff
In a Notice of Interpretation and Enforcement, the Department of Health and Human Services advised that effective May 10, 2021, its Office for Civil Rights (OCR) will interpret and enforce Section 1557 of the Patient Protection and Affordable Care Act (ACA) and Title IX’s prohibitions on discrimination based on sex to include discrimination based on sexual orientation and gender identity. The change, made in light of the Supreme Court’s ruling in Bostock v. Clayton County and subsequent court decisions, reverses the Trump Administration’s prior policy.
“Because of sex.” Section 1557 prohibits discrimination based on race, color, national origin, sex, age, or disability in covered health programs or activities. On June 15, 2020, the Supreme Court held that Title VII’s prohibition on employment discrimination based on sex encompasses discrimination based on sexual orientation and gender identity. The divided Court concluded that the plain meaning of "because of sex" in Title VII necessarily included discrimination because of sexual orientation and gender identity.
Title IX. Since Bostock, two federal circuits have concluded that the plain language of Title IX’s prohibition on sex discrimination must be read similarly. Further, on March 26, 2021, the Justice Department’s Civil Rights Division issued a memorandum to Federal Agency Civil Rights Directors and General Counsel concluding that the High Court’s reasoning in Bostock applies to Title IX. The ACA makes clear that Section 1557 prohibits discrimination "on the grounds prohibited under . . . Title IX."
LGBTQ rights under Section 1557. Accordingly, consistent with the Bostock decision and Title IX, the OCR will interpret Section 1557’s prohibition on discrimination on the basis of sex to include discrimination based on sexual orientation and gender identity. This interpretation will guide the OCR in processing complaints and conducting investigations, but does not itself determine the outcome in any particular case or set of facts.
HHS noted that that discrimination in health care impacts health outcomes. Research has shown that a quarter of LGBTQ people who faced discrimination postponed or avoided receiving needed medical care for fear of further discrimination. The OCR is responsible for enforcing Section 1557 and its corresponding regulations, which protect the civil rights of individuals who access or seek to access covered health programs or activities.
“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation,” said HHS Secretary Xavier Becerra. “That’s why the HHS announced it will act on related reports of discrimination. Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone—including LGBTQ people—should be able to access health care, free from discrimination or interference, period.”
Religious Freedom Restoration Act. In enforcing Section 1557, the OCR will also comply with the Religious Freedom Restoration Act and all other legal requirements. Further, the OCR will comply with all applicable court orders issued in litigation involving the Section 1557 regulations, including Franciscan Alliance, Inc. v. Azar, 414 F. Supp. 3d 928 (N.D. Tex. 2019); Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Hum. Servs., 485 F. Supp. 3d 1 (D.D.C. 2020); Asapansa-Johnson Walker v. Azar, No. 20-CV-2834, 2020 WL 6363970 (E.D.N.Y. Oct. 29, 2020); and Religious Sisters of Mercy v. Azar, No. 3:16-CV-00386, 2021 WL 191009 (D.N.D. Jan. 19, 2021).
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