HHS finalizes rules reversing regulations on sexual orientation and gender identity from the Obama era

June 12, 2020

Under Section 1557 of the Affordable Care Act, Congress prohibited covered health plans and programs from discriminating on the basis of race, color, national origin, sex, age, or disability, the classes long recognized under our civil rights laws. However, in May 2016, the Obama administration issued new regulations that expanded the scope of section 1557’s nondiscrimination prohibitions by redefining “sex” to include sexual orientation and gender identity.

These new regulations raised a number of significant religious liberty issues and pro-life issues. For instance, physicians would be required to provide gender reassignment surgeries, administer hormones to facilitate gender reassignment, and even perform abortions in violation of the consciences of medical professionals.

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, Inc., et al. v. Burwell, et al. 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).

As a result, the District Court in Franciscan Alliance issued a nationwide preliminary injunction on the 2016 rule. The preliminary injunction remains in place today and the 2016 rule has never come into effect.

Today, the U.S. Department of Health and Human Services finalized a new rule that replaces the 2016 rules and brings HHS’s nondiscrimination regulations back in line with federal law passed by Congress.

The ERLC submitted written comments in support of the change that may be accessed here.

For more information on the finalized rules, please see the U.S. Department of Health and Human Services’ press release on the new rules. HHS has released the draft final rule as well as a factsheet explaining the implications of the rule.