“Removing gender identity and sex stereotyping from the definition of prohibited sex-based discrimination could allow health care providers to refuse to serve individuals who are transgender or who do not conform to traditional sex stereotypes.”

On June 14, 2019, the Department of Health and Human Services (HHS) proposed what it describes as “substantial revisions” to its regulations implementing Section 1557 of the Affordable Care Act. Section 1557 prohibits discrimination based on race, color, national origin, sex, age, and disability in health programs and activities receiving federal financial assistance. Notably, it is the first federal civil rights law to prohibit discrimination in health care based on sex. The 60-day public comment period on the proposed changes closes on August 13, 2019. The proposal cannot change Section 1557’s protections in the law enacted by Congress but would significantly narrow the scope of the existing HHS implementing regulations, if finalized, by:

• Eliminating the general prohibition on discrimination based on gender identity, as well as specific health insurance coverage protections for transgender individuals;
• Adopting blanket abortion and religious freedom exemptions for health care providers;
• Eliminating the provision preventing health insurers from varying benefits in ways that discriminate against certain groups, such as people with HIV or LGBTQ people;

• Weakening protections that provide access to interpretation and translation services for individuals with limited English proficiency;
• Eliminating provisions affirming the right of private individuals to challenge alleged violations of § 1557 in court and to obtain money damages, as well as requirements for covered entities to provide non-discrimination notices and grievance procedures;
• Narrowing the reach of the regulations by only covering specific activities that receive federal funding, but not other operations, of health insurers that are not “principally engaged in the business of providing health care,” and no longer applying the regulations to all HHS-administered programs;

HHS also requests comment on whether to change certain provisions intended to ensure equal access for people with disabilities. It also proposes eliminating prohibitions on discrimination based on gender identity and sexual orientation in 10 other Medicaid, private insurance, and education program regulations outside Section 1557. If finalized, HHS’s proposed changes would substantially narrow, and in many cases entirely eliminate, the regulations’ existing protections against discrimination in meaningful ways.

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