HHS to enforce prohibition of sex discrimination on basis of sexual orientation, gender identity

In an announcement this week, the Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) revealed it will enforce a prohibition on discrimination on the basis of sexual orientation and gender identity, citing a 2020 Supreme Court ruling.

According to the OCR, it 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.

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

The update was made in light of the U.S. Supreme Court’s decision in Bostock v. Clayton County and subsequent court decisions.

“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 today HHS announced it will act on related reports of discrimination,” HHS Secretary Xavier Becerra said in a statement. “Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences.”

Becerra pointed out that the HHS position is that everyone, including LGBTQ people, should be able to access health care, free from discrimination or interference, period.

Discrimination in health care impacts health outcomes. Research shows that one quarter of LGBTQ people who faced discrimination postponed or avoided receiving needed medical care for fear of further discrimination.

According to Rachel Levine, MD, assistant secretary for health, the mission of the Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation.

“All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” she said in a statement. “No one should be discriminated against when seeking medical services because of who they are.”

According to the OCR, it 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.

According to Robinsue Frohboese, acting OCR director, its mission is to protect people from all forms of discrimination.

“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,” Frohboese said in a statement.

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.

Consistent with the Supreme Court’s decision in Bostock and Title IX, beginning today OCR will interpret Section 1557’s prohibition on discrimination on the basis of sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity.

This 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.