Biden Administration Announces LGBTQ Protections

The Department of Health and Human Services announced recently that it will interpret Section 1557 of the Affordable Care Act to prohibit discrimination on the basis of sexual orientation and gender identity.

Section 1557 of the Affordable Care Act prohibits certain health plans from discriminating against a participant on the basis of race, color, national origin, sex, age, or disability. At its inception, the prohibition on discrimination on the basis of sex was broadly interpreted to include discrimination on the basis of sexual orientation and gender identity. In June of 2020, however, HHS under the Trump administration issued new regulations which reversed the former regulations’ broad definition of sex, instead only prohibiting discrimination on the basis of the genetic construct of male and female.

President Biden’s HHS has now reversed course again and has adopted the original interpretation of Section 1557. In the announcement, HHS Secretary Xavier Becerra relied on the recent Supreme Court case Bostock v. Clayton County, which held that the Civil Rights Act’s prohibition on discrimination “b

ecause of sex” protects gay and transgender employees from discrimination at work. While the announcement did not specify exactly how the agency would be enforcing this provision, it did affirm that this would be an enforcement priority for HHS.