Section 1557 of the Affordable Care Act and The Bostock Decision
By: Komal S. Mirza, Esq.
June 19, 2020
On June 12, 2020, the U.S. Department of Health and Human Services (HHS) announced its roll-back on Section 1557 of the Affordable Care Act (ACA). As it stood, the law prohibited discrimination on the basis of race, color, national origin, sex, age, or disability by health programs and activities receiving federal funds, administered by a federal agency, or entities participating in the healthcare insurance marketplace. The definition of sex discrimination was expanded to provide protection based on gender identities defined as “male, female, neither or a combination of male and female,” and to those seeking to terminate a pregnancy. The Section expounded upon previously well-established civil rights laws including Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendment of 1972, among others.
With the Trump Administration’s roll-back of Section 1557, the HHS is reverting to the plain meaning of those terms. In plain terms, the Section’s anti-discrimination protections apply solely to those who identify as either male or female. Under the reversion, a transgender person may be refused health care; and if abortion violates a physician’s moral or religious beliefs, they may deny such care to a patient. According to the HHS website, the roll-back is the result of a ruling made by U.S. District Court for the Northern District of Texas on December 31, 2016 in Franciscan Alliance, Inc. et al v. Burwell. In the ruling, the federal court enjoined the Section 1557 regulation that prohibited discrimination on the basis of gender identity and termination of pregnancy. Consequently, HHS was and continues to be unable to enforce the anti-discrimination provisions of Section 1557.
However, in light of the U.S. Supreme Court’s June 15, 2020 ruling in Bostock v. Clayton County, HHS may find itself revisiting Section 1557’s anti-discrimination provisions and its new roll-back provisions. In the groundbreaking decision, the Court held “an employer violates Title VII when it intentionally fires an individual employee based in part on sex.” The Court goes on to reason that it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. This landmark case has created a foundation through which protections against sex discrimination can be expanded to include any discrimination against an individual based on their gender identity or sexual orientation.
Komal S. Mirza, Esq. is an attorney with Healthcare Law Partners, L.L.C. for more information visit www.bluehealthlaw.com.