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Feds Say ‘Gender identity,’ ‘Sexual Orientation’ Now in Discrimination Definition

The U.S. Department of Health & Human Services will include ”sexual orientation’ and ‘gender identity’ in its definition of discrimination, the agency announced last week.

The announcement follows a directive by the Office for Civil Rights which was prompted by a recent Supreme Court ruling – Bostock v. Clayton County. As a federal agencies will interpret and enforce Section 1557 and Title IX’s prohibitions on discrimination based on sex to include:

(1) discrimination on the basis of sexual orientation; and
(2) discrimination on the basis of gender identity. 

Section 1557 currently prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in covered health programs or activities.  

HHS under the Biden administration has stated that discrimination in health care impacts health outcome and that “one quarter of LGBTQ people who faced discrimination postponed or avoided receiving needed medical care for fear of further discrimination.”

“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That’s why HHS announced it will act on related reports of discrimination,” said HHS Secretary Xavier Becerra.  “Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone – including LGBTQ people – should be able to access health care, free from discrimination or interference, period.”

The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (the Department) is responsible for enforcing Section 1557 of the Affordable Care Act (Section 1557) and regulations issued under Section 1557, protecting the civil rights of individuals who access or seek to access covered health programs or activities. Covered entities are prohibited from discriminating against consumers on the basis of sexual orientation or gender identity.

“OCR’s mission is to protect people from all forms of discrimination,” said Robinsue Frohboese, Acting OCR Director.  “OCR will follow Supreme Court precedent and federal law, and ensure that the law’s protections extend to those individuals who are discriminated against based on sexual orientation and gender identity.”

On June 15, 2020, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 (Title VII)’s prohibition on employment discrimination based on sex encompasses discrimination based on sexual orientation and gender identity. Bostock v. Clayton County, GA, 140 S. Ct. 1731 (2020). The Bostock majority concluded that the plain meaning of “because of sex” in Title VII necessarily included discrimination because of sexual orientation and gender identity. Id. at 1753-54.

HHS said recently:

“Consistent with the Supreme Court’s decision in Bostock and Title IX, OCR’s… interpretation will guide OCR in processing complaints and conducting investigations, but does not itself determine the outcome in any particular case or set of facts.”

Note from the U.S. Department of Health & Human Services:

In enforcing Section 1557 as stated above, OCR will comply with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., and all other legal requirements. Additionally, OCR will comply with all applicable court orders that have been issued in litigation involving the Section 1557 regulations, including Franciscan Alliance, Inc. v. Azar, 414 F. Supp. 3d 928 (N.D. Tex. 2019); Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Hum. Servs., 485 F. Supp. 3d 1 (D.D.C. 2020); Asapansa-Johnson Walker v. Azar, No. 20-CV-2834, 2020 WL 6363970 (E.D.N.Y. Oct. 29, 2020); and Religious Sisters of Mercy v. Azar, No. 3:16-CV-00386, 2021 WL 191009 (D.N.D. Jan. 19, 2021).

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