HHS addresses application of ACA nondiscrimination rules to gender identity, sex stereotyping
On August 6, the Department of Health and Human Services (HHS) issued seven questions and answers (Q&A) addressing the nondiscrimination rules located in Sec. 1557 of the Patient Protection and Affordable Care Act (ACA) and how they apply to gender identity and sex stereotyping.
Section 1557 prohibits individuals from being excluded on the basis of age, disability, national origin, race, or sex from participation in, being denied the benefits of, or being subject to discrimination under any health program or activity that receives federal financial assistance, including credits, subsidies, or insurance contracts.
The HHS Q&As clarify that because Sec. 1557 prohibits discrimination on the basis of “sex,” it extends protection against discrimination based on gender identity and sex stereotyping. However, Sec. 1557 does not require that gender transition surgery be covered by health plans. The HHS intends to propose regulations on the application of Sec. 1557 in the future.
TheQ&As were released the same day EEOC Commissioner Chai Feldblum posted on Twitter a link to a commission video explaining why gays and transgender individuals are protected under Title VII of the Civil Rights Act of 1964. The video, which features an EEOC brown bag session on the impact of the commission’s Macy v Holder decision, makes clear the agency’s view that Title VII’s prohibition against discrimination based on “sex” extends to claims for sex stereotyping, as well any other claim asserting that gender was taken into account — including discrimination due to an individual’s transition from one gender to another.