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Explainer: HHS reinterprets healthcare discrimination law to include sexual orientation and gender identity

healthcare discrimination law

On Aug. 4, the Department of Health and Human Services (HHS) issued a proposed rule that would significantly reinterpret the Affordable Care Act’s Section 1557 nondiscrimination provision by expanding the definition of “sex” to include sexual orientation, gender identity, and pregnancy-related conditions. Section 1557 of the Patient Protection and Affordable Care Act (ACA) is a nondiscrimination provision that prohibits 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.

Following the announcement, HHS allowed 60 days for organizations and individuals to comment with concerns. The ERLC submitted comments raising our concerns with the proposed rule. As that comment period closed Monday, HHS is obligated to respond to each of these comments before putting forward a finalized rule.

How has Section 1557 been interpreted historically?

During the Obama administration, new regulations expanded the scope of section 1557’s nondiscrimination policies by redefining “sex” to include sexual orientation, gender identity, and termination of pregnancy. The regulations raised a number of significant issues regarding religious liberty and freedom of conscience. For instance, physicians would be required to provide gender reassignment surgeries and administer hormones to facilitate gender reassignment, including to children. The regulations even required medical professionals to perform abortions in violation of their deeply held convictions.

In response to these new regulations, five states and three private healthcare providers filed suit to challenge the final rules. In Franciscan Alliance v. Burwell (2016), a federal district court held that HHS erroneously interpreted “sex” under Title IX and that the final rule was arbitrary and capricious, while Title IX “unambiguously refers to the biological and anatomical differences between male and female students as determined at their birth.” The 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 narrowing the definition of “sex.” Days after the final rule was issued, the Supreme Court handed down a 6-3 ruling in Bostock v. Clayton County that 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. This year, the Biden administration reversed the 2020 rule, then reinstated and expanded the Obama administration’s 2016 rule using the Bostock decision as a justification for its redefinition of “sex.”

Why is this change problematic?

While HHS allegedly plans to comply with the Religious Freedom Restoration Act and all applicable court orders involving section 1557 regulations, it is unclear what this proposed rule means for religious healthcare professionals and insurance providers. Medical professionals and providers could be forced to administer or cover gender reassignment treatments if they provide the same underlying treatments for other conditions, regardless of their objections to the treatment for religious or moral reasons. That is, if a physician performs hysterectomies for cancer patients or hormone therapy for patients with hormone imbalances, HHS may force that doctor to administer those same treatments for patients seeking gender reassignments.

This rule also expands the legal definition of “sex” to include “pregnancy-related conditions”—a term that prohibits discrimination on the basis of “pregnancy, childbirth, termination of pregnancy, or lactation.” While the exact implications of this expansive terminology are still unclear, advocates are concerned that the administration could again weaponize the “termination of pregnancy” language to mandate healthcare providers and other organizations to include abortions and abortifacents in their plans. The government should never fund abortions nor force healthcare professionals to violate their dearly held pro-life convictions. Pro-life appropriations riders such as the Hyde, Weldon, and Church amendments should always be included in the annual budgetary process and strictly followed by executive agencies like HHS.

How has the ERLC responded?

The ERLC has submitted public comments laying out our concerns with the proposed rule and urging them to reconsider making these changes. This proposed rule would have deeply concerning ramifications for life, religious liberty, and the good of our neighbors if enacted. As ERLC’s Jason Thacker said when the proposed rule was introduced, “No matter how quickly our society shifts on the fundamental issues of life and human sexuality, people of faith should not be forced to participate in or promote the myth that we can create our own realities outside of God’s good design for human sexuality and flourishing,” The ERLC will continue to monitor these changes and look for additional opportunities to raise our concerns and advocate for the recognition of God’s good design for biological sex and for the protection of religious liberty.

healthcare discrimination law

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