The Evolution of Section 1557 of the Affordable Care Act: A Chronology of Change
Section 1557 of the Affordable Care Act (ACA) is a critical piece of legislation aimed at preventing discrimination in health programs and activities that receive federal financial assistance. Although the statutory text is only half a page long, it has undergone significant reinterpretation over the years, reflecting the changing perspectives of different presidential administrations. This blog post delves into the evolution of Section 1557, focusing on the original 2016 rule, the 2020 rule changes, the impact of the Bostock v. Clayton County decision, and the 2024 final rule.
The Original 2016 Rule: Expanding Protections
The first major rulemaking for Section 1557 occurred in 2016 under the Obama administration. This rule was groundbreaking in its scope, extending protections against discrimination based on gender identity, sexual stereotyping, and sexual orientation. The rule clarified that a person’s gender identity “may be male, female, neither, or a combination of male and female,” thereby broadening the definition of sex discrimination.
The 2016 rule was a significant step forward in ensuring that all individuals received equitable treatment in health care settings, regardless of their gender identity or sexual orientation. It aimed to create an inclusive environment where discrimination had no place.
The 2020 Rule Changes: A Step Backward
Under the Trump administration, the 2020 final rule marked a significant rollback of the protections established in 2016. This second round of rulemaking removed the bans on discrimination based on gender identity, sexual stereotyping, or sexual orientation. The rule reverted to a binary definition of sex as male or female, significantly narrowing the scope of protections under Section 1557.
As a result, although individuals could still file discrimination complaints with the Office for Civil Rights (OCR), the agency’s ability to find in favor of complaints based on gender identity or sexual orientation was severely hampered. This interpretation essentially stripped LGBTQ+ individuals of the protections they had previously enjoyed under the ACA.
The Impact of the Bostock v. Clayton County Decision
In a landmark decision in June 2020, the Supreme Court ruled in Bostock v. Clayton County that an employer cannot discriminate based on a person’s gender identity or sexual orientation, as this would constitute discrimination “on the grounds of sex.” This ruling had immediate and far-reaching implications for Section 1557.
In 2021, under the Biden administration, the Department of Health and Human Services (HHS) issued a notice stating that to comply with the Bostock decision, HHS would “interpret and apply Section 1557 of the Affordable Care Act prohibiting discrimination on the basis of sex to include: discrimination on the basis of sexual orientation; and discrimination based on gender identity.” This notice signaled a return to broader protections, although a formal rule change would take another three years to finalize.
The 2024 Final Rule: Broadening the Scope
The 2024 final rule represents the third round of Section 1557 rulemaking and significantly expands the scope of anti-discrimination protections. This new rule prohibits discrimination based on gender identity, sexual orientation, sexual characteristics, and pregnancy-related conditions, including the termination of pregnancy. It also specifically addresses non-discriminatory LGBTQI+ health care protections, including health care for transgender individuals.
The 2024 rule also expands the number of entities subject to Section 1557 rules, ensuring that more health programs and activities fall under its purview. This expansion aims to provide comprehensive protections and create a more inclusive health care environment for all individuals.
Ongoing Litigation and Future Implications
Despite the expanded protections under the 2024 rule, litigation over Section 1557 has continued. Most recently, the Florida Attorney General and the Catholic Medical Association filed a lawsuit against HHS in May 2024, seeking to overturn the new rule. Additional lawsuits are expected, particularly in states where local laws conflict with Section 1557’s requirements, such as those allowing medical providers to refuse treatment to LGBTQI+ patients or banning gender-affirming care for transgender youth.
The future of Section 1557 remains uncertain, as enforcement is left up to HHS, and the rules could change under a future administration. While the 2024 rule represents a significant step forward in expanding anti-discrimination protections, the issue is far from settled.
Conclusion
The evolution of Section 1557 of the Affordable Care Act reflects the broader societal debates around discrimination and inclusion in health care. From the expansive protections of the 2016 rule to the restrictive changes in 2020, and the subsequent broadened scope following the Bostock decision, Section 1557 continues to be a dynamic and evolving area of health care law. As litigation and political shifts continue, the future of these critical protections remains a topic of significant importance and close scrutiny.