HHS Issues Announcement on Section 1557 Protecting Civil Rights in Healthcare

On May 10, 2021, the Department of Health and Human Services (HHS) announced that itwas revising its interpretation of Section 1557 of the Affordable Care Act (ACA) and Title IX of the Education Amendments of 1972 (Title IX). According to the HHS release, the Health and Human Services Office for Civil Rights (OCR) will interpret and enforce the Section 1557 and Title XI prohibitions on sex discrimination to include discrimination on the basis of (1) sexual orientation, and (2) gender identity. HHS stated that it made the updates of its interpretation in light of the Supreme Court of the United States (SCOTUS) decision in Bostock v. Clayton County, Georgia. This latest interpretation of Section 1557 continues the history of the HHS’s ever-evolving interpretation of what constitutes prohibited discrimination on the basis of sex.

Section 1557 of the ACA is the health law’s nondiscrimination provision, which has been in effect since the ACA’s enactment.

Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in health programs or activities. The provision applies to any health program or activity which receives Federal financial assistance from the HHS, is administered by an Executive agency or by any entity established under Title I of the ACA. The prohibited discrimination grounds are set out under the following federal laws:

• Title VI of the Civil Rights Act of 1964 (Title VI);
• Title IX;
• The Age Discrimination Act of 1975 (the Age Discrimination Act); or
• Section 504 of the Rehabilitation Act of 1973 (Section 504 of the Rehabilitation Act).

If any covered health programs or activities violate Section 1557, OCR has the authority to enforce its requirements. In addition, the enforcement mechanisms detailed and available under Title VI; Title IX, the Age Discrimination Act and Section 504 of the Rehabilitation Act apply to violations of Section 1557 nondiscrimination.

Federal case law and HHS regulations have defined the meaning of discrimination on the basis of sex in the context of Section 1557 nondiscrimination.

A 2016 Final Rule issued by HHS, extended Section 1557’s definition of sex discrimination to cover discrimination on the basis of gender identity/non-conformity and termination of pregnancy. The 2016 Final Rule prompted three religiously affiliated healthcare providers (Franciscan Alliance, Inc.; Specialty Physicians of Illinois, LLC; and Christian Medical & Dental Associations) and five States (Texas, Wisconsin, Nebraska, Kentucky, and Kansas) to file a complaint in U.S. District Court for the Northern District of Texas. Their complaint contained three claims that:

1. HHS’s 2016 Final Rule impermissibly extended Title IX to include gender identity and termination of pregnancy as forms of sex discrimination contrary to Title IX history and legislative intent;
2. Section 1557 would require covered entities to perform and/or provide insurance coverage for abortion and transition-related procedures; and
3. Section 1557 would deny the healthcare provider plaintiffs the protections available to them under the Religious Freedom Restoration Act (RFRA).

On December 31, 2016, the U.S. District Court for the Northern District of Texas issued an Order in Franciscan Alliance, Inc. et al v. Burwell. The Order enjoined, on a nationwide basis, the 2016 Final Rule, concluding that the provisions were likely contrary to applicable civil rights law, RFRA, and the Administrative Procedure Act (APA).

On June 12, 2020, HHS issued a Final Rule that lifted some anti-discrimination protections under Section 1557 of the ACA.

HHS reasoned that it finalized the rule in order to align the interpretation of Section 1557 nondiscrimination rules to the plain meaning of sex under the applicable civil rights laws. Based on that 2020 Final Rule, Section 1557 does not provide nondiscrimination protections on the basis of sex for termination of pregnancy and gender identity. In the Summary of the Final Rule (Summary) HHS promised that it would continue to vigorously enforce the applicable civil rights laws prohibiting discrimination in healthcare based on that Final Rule. The 2020 Summary also explained the basis of discrimination that the June 2020 Final Rule would cover. The 2020 Summary and HHS’s announcement about the Final Rule stated that OCR does not adopt a new explicit definition of “on the basis of sex” but confirms in the Final Rule’s preamble and its press release that it would interpret sex solely as biological sex (which HHS defines as a person’s genetic sex at birth) in its enforcement activities. HHS states that this definition was consistent with Title IX of the Education Amendments Act of 1972 and the Department of Justice’s (DOJ) position in the Supreme Court cases on Title VII.

On June 15, 2020, SCOTUS issued its decision in Bostock v. Clayton County, Georgia.

In a split decision, SCOTUS decided that discrimination on the basis of sex includes discrimination based on sexual orientation and gender identity and held that Title VII prohibited an employer from intentionally firing an employee because of sexual orientation and gender identity. In its May 10, 2021 release, HHS stated that it updated its interpretation of Section 1557 to comport with the Court’s holding about what constitutes discrimination on the basis of sex.

According to HHS Secretary Xavier Becerra, the Bostock decision clearly exhibits that the Supreme Court recognizes that the right not to be discriminated against on the basis of sex includes gender identity and sexual orientation.

In response, Robinsue Frohboese, Acting OCR Director, said OCR will follow Supreme Court precedent and federal law by ensuring that Section 1557 protections extend to those discriminated against based on sexual orientation and gender identity. Becerra went on to say that the HHS would act on reports claiming that someone was discriminated against when seeking medical services because of their gender identity and sexual orientation. According to HHS in enforcing Section 1557 as stated, OCR will continue to comply with RFRA and all other legal requirements.

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