On May 10, 2021, the Department of Health and Human Services (“HHS”) announced that— consistent with the Supreme Court’s decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), and Title IX of the Education Amendments of 1972—HHS’s Office of Civil Rights (“OCR”) will interpret and enforce the prohibition on discrimination on the basis of sex under Section 1557 of the Patient Protection and Affordable Care Act to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity. OCR is responsible for enforcing Section 1557 and regulations issued thereunder, which prohibit discrimination on the basis of race, color, national origin, sex, age, or disability in covered health programs or activities. HHS stated that its interpretation will guide OCR in processing complaints and conducting investigations, but does not itself determine the outcome of any particular care or set of facts.

The announcement comes less than a year after the Supreme Court’s decision in Bostock, which held that Title VII of the Civil Rights Act of 1964’s prohibition on employment discrimination based on sex encompasses discrimination based on sexual orientation and gender identity. Bostock held that the plain meaning of “because of sex” in Title VII necessarily includes discrimination because of sexual orientation and gender identity.

As we previously reported, OCR’s implementation of the Section 1557 regulations and the impact of Bostock have been contested in federal courts across the country. But since Bostock, two federal circuits have concluded that the plain language of Title IX’s prohibition on sex discrimination must be read similarly. Moreover, on March 26, 2021, the Civil Rights Division of the Department of Justice issued a memorandum to Federal Agency Civil Rights Directors and General Counsel concluding that the Supreme Court’s reasoning in Bostock applies to Title IX.

As part of HHS’s recent announcement, Secretary of Health and Human Services Xavier Becerra stated: “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 [on May 10] HHS announced it will act on related reports of discrimination[.]” The announcement observed that “discrimination in health care impacts health outcomes” and noted that “[r]esearch shows one quarter of LGBTQ people who faced discrimination postponed or avoided receiving needed medical care for fear of further discrimination.”

In enforcing Section 1557, OCR stated that it will comply with the Religious Freedom Restoration Act and all other legal requirements, as well as all applicable court orders that have been issued in litigation involving the Section 1557 regulations.

We will continue to monitor developments related to HHS’s announcement and their impact on covered entities.