HHS Finalizes Rule on Section 1557 Protecting Civil Rights in Healthcare, Restoring the Rule of Law, and Relieving Americans of Billions in Excessive Costs

June 12, 2020

Today, the U.S. Department of Health and Human Services (HHS) finalized a rule under Section 1557 of the Affordable Care Act (ACA) that maintains vigorous enforcement of federal civil rights laws on the basis of race, color, national origin, disability, age, and sex, and restores the rule of law by revising certain provisions that go beyond the plain meaning of the law as enacted by Congress. The final rule will also relieve the American people of approximately $2.9 billion in undue and ineffective regulatory burdens over five years.

Conforming to the Text of Our Laws

In Section 1557, Congress prohibited covered health programs or activities from discriminating on any of the grounds protected by longstanding federal civil rights statutes. One of those federal statues is Title IX of the Education Amendments of 1972 (Title IX) prohibiting discrimination on the basis of sex in certain federally funded programs. In 2016, the previous administration issued a regulation implementing Section 1557 (the 2016 Rule) that redefined sex discrimination to include termination of pregnancy and gender identity, which it defined as “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.”

On December 31, 2016, a federal court preliminarily enjoined, on a nationwide basis the prior administration’s attempt to redefine sex discrimination in the 2016 Rule, concluding that the provisions were likely contrary to applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act. A second federal court agreed. On October 15, 2019, the first federal court issued a final judgment, and vacated and remanded these provisions as unlawful; this final ruling is binding on HHS. HHS has not been able to enforce these provisions since December 2016, and the provisions have been vacated since October 2019.

Under the final rule, HHS eliminates certain provisions of the 2016 Rule that exceeded the scope of the authority delegated by Congress in Section 1557. HHS will enforce Section 1557 by returning 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 2016 Rule declined to recognize sexual orientation as a protected category under the ACA, and HHS will leave that judgment undisturbed….

https://www.hhs.gov/about/news/2020/06/12/hhs-finalizes-rule-section-1557-protecting-civil-rights-healthcare.html