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HHS Changes Course on Gay, Lesbian, Bisexual and Transgender People

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What You Need to Know

  • Affordable Care Act Section 1557 prohibits discrimination on the grounds of sex.
  • Obama-era HHS officials held that Section 1557 protected LGBTQ people.
  • Trump administration officials said Obama's team had exceeded the scope of its their statutory authority.

The U.S. Department of Health and Human Services (HHS) says its Office for Civil Rights will now define “discrimination on the basis of sex” to include discrimination on the basis of sexual orientation and sexual identity.

HHS posted an announcement of the policy change — a notice of interpretation and enforcement — on its website Monday.

HHS Secretary Xavier Becerra said in a comment on the notice that fear of discrimination can lead individuals to do without necessary care.

“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,” Becerra said.

HHS officials said they are basing the policy charge partly on the U.S. Supreme Court’s ruling on Bostock v. Clayton County. In that ruling, ”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,” according to HHS officials.

The History

Section 1557 of the Patient Protection and Affordable Care Act, a part of the Affordable Care Act, prohibits discrimination on the basis of sex, race, color, national origin, age and disability.

When Barack Obama was president, HHS defined “discrimination on the basis of sex” to include discrimination against people who are lesbian, gay, bisexual, transgender  and queer.

During the administration of Donald Trump, HHS officials held that Obama-era officials had exceeded their statutory authority.

Former HHS Secretary Alex Azar ruled that Section 1557 did not prohibit discrimination against LGBTQ people. Azar also eliminated Section 1557 grievance procedures, and he deleted discrimination based on pregnancy status from the list of prohibited forms of health care discrimination.

The new HHS policy change notice does not mention Section 1557 grievance procedures or discrimination based on pregnancy.

Xavier Becerra (Photo: California Attorney General’s Office)