On August 17, 2020, a federal district court blocked a Department of Health and Human Services (HHS) regulation which was intended to allow healthcare and insurance discrimination based on sex stereotyping, gender identity and pregnancy-related conditions.
The U.S. District Court Judge found that the planned regulation, which was announced in June, violates the Supreme Court’s landmark ruling that extended federal civil rights law to LGBTQ workers.
ACA Section 1557 Regulations
Section 1557 of the Affordable Care Act (ACA) states that discrimination on the “basis of sex” is prohibited in “any health program or activity” that receives federal funds or is administered by a federal agency. According to a 2016 HHS regulation, the term “sex” is defined to include sex stereotypes, gender identity, pregnancy termination, and other pregnancy-related conditions.
The new 2020 HHS rule, which was set to go into effect on August 18, 2020, changed the definition of “sex” to allow for distinctions based on “the biological binary of male and female.”
In June, a little over a week after HHS announced it was erasing some provisions of the 2016 rule, a coalition of LGBTQ groups filed a lawsuit. Bamby Salcedo, the president and CEO of one of the groups represented in the lawsuit stated, “the new rule will negatively impact healthcare access for those of us who are transgender, non-English speakers, immigrants, people of color and people living with disabilities, and will have an even more serious impact on those of us who hold intersectional identities.”
Bostock Decision
In the Walker v. Azar case, the U.S. District Court for the Eastern District of New York held that the 2020 HHS regulation conflicts with the U.S. Supreme Court’s recent decision in Bostock v. Clayton County — which the Supreme Court ruled that employment discrimination based on sexual orientation or gender identity violates Title VII of the Civil Rights Act.
The Walker court held that the 2016 regulation remains in effect pending further court action.
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