In 2016, the Obama Administration issued a regulation implementing Section 1557 of the Affordable Care Act (ACA) (the 2016 Rule), which redefined sex discrimination to include termination of pregnancy and gender identity. Despite efforts by the U.S. Department of Health and Human Services (HHS) to repeal and revise certain provisions of the 2016 Rule through a new Rule, a NY Federal Court issued a preliminary injunction on August 17, 2020 against the new Rule from becoming effective.

Section 1557 of the ACA is a civil rights provision that prohibits discrimination on the basis of race, color, national origin, sex, age, or disability by providers that receive federal funding.

Notably, the 2016 Rule redefined discrimination “on the basis of sex” to include “discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, and gender identity.” The 2016 Rule defines “Gender identity” as “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.”

Pursuant to a Press Release issued on June 12, 2020, HHS announced it had a finalized a rule (the 2020 Rule) that revised certain provisions of the 2016 Rule. Of note, the 2020 Rule returns “to the government’s interpretation of sex discrimination according to the plain meaning of the word “sex” as male or female and as determined by biology.” The 2020 Rule was to become effective as of August 18, 2020.

On August 17, 2020, the U.S. District Court for the Eastern District of New York issued a preliminary injunction staying the 2020 Rule’s repeal of the definition of “on the basis of sex”, in a case involving two transgender women who filed their suit in an effort to prevent implementation of the 2020 Rule. In the case (Asapansa-Johnson Walker v. Azar), the two women allege health care providers previously discriminated against them based on their transgender status.

In light of the above, health care providers should continue to take proactive steps to implement policies regarding discrimination on the basis of sex (including, but not limited to, gender identity sensitivity).  In addition, health care providers should educate and train physicians and staff on the importance of gender identity sensitivity and preventing discrimination in the workplace.

[View source.]