On May 10, 2021, the U.S. Department of Health and Human Services (HHS) announced that the Office of Civil Rights (OCR) will interpret and enforce Section 1557 and Title IX’s prohibition on discrimination based on sex to include both (1) discrimination on the basis of sexual orientation and (2) discrimination on the basis of gender identity.
OCR is responsible for enforcing Section 1557 of the Affordable Care Act and regulations issued thereunder, which prohibit discrimination against consumers in covered health programs or activities on the basis of race, color, national origin, sex, age, or disability. In our update last year, we reported on HHS’s position during the prior administration, which was to limit the meaning of “discrimination on the basis of sex” under Section 1557 and Title IX to the plain meaning of the word “sex” as male or female and as determined by biology.
OCR’s announcement makes clear that it is adopting the Supreme Court’s 2020 decision to expand the discrimination on the basis of sex to include discrimination based on sexual orientation and gender identity. Bostock v. Clayton County, GA 140 S.Ct. 1731.
The wait and see approach is over. Now is the time for health care providers to ensure that their policies and procedures and general practices in providing care do not discriminate on the basis of sexual orientation and gender identity.