Explainer: HHS reverses enforcement policy on sexual orientation and gender identity

May 12, 2021

This week, the Department of Health and Human Services (HHS) announced that the Office for Civil Rights (OCR) will interpret and enforce the Affordable Care Act and Title IX’s nondiscrimination provision and expand the definition of “sex” to include “sexual orientation” and “gender identity.” 

Section 1557 of the Patient Protection and Affordable Care Act (ACA) is the nondiscrimination provision of the ACA prohibiting discrimination on the basis of race, color, national origin, sex, age, or disability under any federally funded health program or activity, executive agency, or entity under Title I of the ACA. 

How have other administrations interpreted Section 1557?

Under the Obama administration, new regulations were issued that expanded the scope of section 1557’s nondiscrimination by redefining “sex” to include sexual orientation and gender identity. The regulations raised a number of significant religious liberty and pro-life issues. For instance, physicians would be required to provide gender reassignment surgeries and administer hormones to facilitate gender reassignment, including to children. They even required medical professionals to perform abortions in violation of the consciences. 

In response to the issuance of these new regulations, on Aug. 23, 2016, five states and three private health care providers filed suit in the U.S. District Court for the Northern District of Texas challenging the final rules in the case Franciscan Alliance v. Burwell. The District Court held that HHS erroneously interpreted “sex” under Title IX, that the final rule was arbitrary and capricious when Title IX “unambiguously refers to the biological and anatomical differences between male and female students as determined at their birth.” The District Court further ruled that the Final Rule’s failure to include religious exemptions likely violated the Religious Freedom and Restoration Act (RFRA) and the Administrative Procedure Act (APA).

In 2020, the Trump Administration finalized a rule reversing the Obama administration’s regulations on Section 1557, and narrowed the definition of “sex.” Days after the Trump Administration finalized their rule, in a 6-3 ruling authored by Justice Gorsuch and styled Bostock v. Clayton County, the Supreme Court expanded the definition of “sex” to include “sexual orientation” and “gender identity” for the purposes of employment discrimination under Title VII of the Civil Rights Act of 1964. The Office of Civil Rights used the Bostock decision as a justification for it’s redefinition of “sex.”

What’s next?

The HHS Office of Civil Rights could begin bringing enforcement actions based on this new interpretation of Section 1557 at any time. While the notice states that HHS will comply with the Religious Freedom Restoration Act and all applicable court orders that have been issued in litigation involving the Section 1557 regulations, it is unclear what this means for religious healthcare providers and professionals. Medical professionals and providers who serve everyone would be forced to administer gender reassignment treatments if they provide the same underlying treatments for other conditions. That is, if a physician performs hysterectomies for cancer patients or hormone therapy for patients with hormone imbalances, HHS may force her to administer those same treatments for patients seeking gender reassignments.

The ERLC will continue promoting and defending the human dignity and religious liberty of all people and religious organizations with the Administration, on Capitol Hill, and throughout the public square.