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HHS Proposal Fortifies LGBTQ, Sex Antidiscrimination Rule in Healthcare

The proposal would reinstate the definition of sex under the Affordable Care Act, codifying LGBTQ+ and sex antidiscrimination rules in healthcare.

The Department of Health and Human Services (HHS) has proposed a rule that would reinstate parts of Section 1557 of the Affordable Care Act (ACA), codifying LGBTQ+ and sex antidiscrimination rules.

Section 1557 also protects against discrimination on the basis of race, color, national origin, age, and disability in certain health programs and activities, HHS said.

Specifically, the 2022 Section 1557 Notice of Proposed Rulemaking (NPRM) reinstates certain protections stripped by a 2020 version of the rule. In June 2020, the Trump Administration rolled back parts of the Obama-era rule addressing discrimination on the basis of sex.

Original versions of the rule stated that the standard definition of sex applies to those who identify as “male, female, neither, or a combination of male and female.”

The 2020 rule change revised that definition, a move that HHS said at the time made the regulation adhere to the specific language of the law. HHS also outlined a set of lawsuits questioning the legality of the provision and which halted enforcement of the 2016 definitions of sex.

“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” Roger Severino, the OCR director at the time, said in 2019 when the rule was proposed. “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives,” said Severino. “The proposed rule would accomplish both goals.”

This change was made in practice a little more than a year ago after rulings from the Supreme Court in Bostock v. Clayton County and subsequent court decisions. SCOTUS ruled that individuals have a right to receive healthcare without facing discrimination on the basis of sex.

In alignment with those 2021 rulings, HHS issued a statement at the time saying it would interpret Section 1557 and related statutes, like Title IX, to ensure protection from discrimination based on sexual orientation and gender identity.

But today’s tense climate regarding women’s health, particularly after the Dobbs v. Jackson Women’s Health decision, may have led HHS to codify those interpretations through rulemaking.

HHS Secretary Xavier Becerra suggested as much in a public statement pointing out that traditionally marginalized groups have a right to access healthcare without discrimination.

“This proposed rule ensures that people nationwide can access health care free from discrimination,” Becerra said. “Standing with communities in need is critical, particularly given increased attacks on women, trans youth, and health care providers. Health care should be a right not dependent on looks, location, love, language, or the type of care someone needs.”

The rule includes specific language pointing out certain types of care individuals can seek free from discrimination. The rule “makes clear that discrimination on the basis of sex includes discrimination on the basis of pregnancy or related conditions, including ‘pregnancy termination,’” HHS said in its press release.

The agency also pointed out nondiscrimination requirements are applicable to any type of care delivered via telehealth.

“Now more than ever, we must stand up for those around the country whose voices often go unheard, to let them know we stand with them and are working to ensure they can access health care free from discrimination,” Melanie Fontes Rainer, the acting OCR director, said of the proposed rule. “Today’s proposed rule is a giant step in working to ensure that goal is met.”

Codifying LGBTQ nondiscrimination rules will also be a key step forward for health equity, according to CMS Administrator Chiquita Brooks-LaSure.

“Strengthening Section 1557 supports our ongoing efforts to provide high-quality, affordable health care and to drive health equity for all people served by our programs,” Brooks-LaSure stated publicly. “This work will help eliminate avoidable differences in health outcomes experienced by those who are underserved and provide the care and support that people need to thrive."

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