WASHINGTON, DC - OCT. 8, 2019: Rally for LGBTQ rights outside Supreme Court as Justices hear oral arguments in three cases dealing with discrimination in the workplace because of sexual orientation.

It’s Time to Update the ACA’s Anti-Discrimination Protections

By Jenna Becker

Assuming that the Affordable Care Act (ACA) withstands its most recent challenge in California v. Texas, the Biden administration should prioritize as a future reform the codification of clearer nondiscrimination standards.

The ACA’s Section 1557, which provides anti-discrimination protections, has been fraught with challenges. Section 1557 incorporates nondiscrimination protections from four separate civil rights statutes. This vague language allows administrations to offer widely differing interpretations of healthcare anti-discrimination protections.

In a 2016 rule, the Obama administration interpreted Section 1557 broadly, including protections based on gender identity and sexual orientation, as well as specific language access requirements. Many of these protections were eliminated in a 2020 rule promulgated by the Trump administration.

It’s time to end these fluctuating standards. The Biden administration should work with Congress to add clearer nondiscrimination protections to the ACA.

Overview of Section 1557

Section 1557 is a hodgepodge of existing civil rights statutes. The provision incorporates protections from Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975. Section 1557 thus prohibits discrimination by health programs based on race, color, national origin, sex, age, and disability.

However, Section 1557 has functioned more as a placeholder. Many questions surrounding anti-discrimination protections remained after the passage of the ACA. Did the incorporation of Title IX’s prohibition of sex-based discrimination cover discrimination based on sexual orientation and gender identity or termination of pregnancy? Can covered entities claim religious exemptions to nondiscrimination requirements under the Religious Freedom Restoration Act (RFRA)? Which health programs does the Section apply to?

This lack of clarity has allowed subsequent administrations to promulgate widely varying standards. The Obama administration rule enhanced nondiscrimination protections, incorporating protections for sexual and gender minority individuals and broad language access requirements. In 2020, the Trump administration’s rule rolled back several of these protections and created religious exemptions for providers to discriminate based on previously-covered classifications, like gender identity. 

Challenges to Nondiscrimination Rules

Both the Obama and Trump rules have led to numerous legal challenges. Many of these challenges have focused on conflicting interpretations of sex-based discrimination.

In Franciscan Alliance, a federal judge in Texas vacated the gender identity and termination of pregnancy protections of the Obama administration’s rule. The judge held that the rule violated the Administrative Procedure Act (APA) in its interpretation of “sex” and violated RFRA’s religious exercise protections.

This summer, Bostock v. Clayton County held that Title VII sex discrimination includes discrimination based on sexual orientation and gender identity. This appeared to settle an interpretive issue raised in Franciscan Alliance: sex-based discrimination necessarily includes sexual orientation and gender identity discrimination. Federal judges in New York and D.C. agreed, enjoining the rollback of sexual orientation and gender identity protections. However, this has not prevented HHS from continuing to defend its rule. These cases also have not resolved the extent to which religious freedom exceptions may be used to circumvent Section 1557 compliance.

The Biden administration’s HHS is set to assume a number of cases surrounding both the Obama-era and Trump-era rules. Biden’s HHS is unlikely to continue to defend the rollback of sexual orientation and gender identity protections. But a refusal to defend the 2020 rule would do little to clarify the current status of Section 1557 nondiscrimination protections. Nor would it prevent similar swings in nondiscrimination protections by future administrations.

Codifying Clearer Standards

Following Bostock, Section 1557 must include protections based on sexual orientation and gender identity. At a minimum, the section should clarify circumstances when religious exemptions may or may not be claimed. The section should also codify anti-discrimination protections for individuals with limited English proficiency.

Section 1557 was a groundbreaking addition to the Affordable Care Act. The ACA was the first federal statute to prohibit sex-based discrimination in healthcare settings. But until Section 1557 is clarified, conflicting rules and dueling lawsuits will continue to confuse providers and fail to fully protect patients from discrimination.

The author, as a clinical student at the Center for Health Law and Policy Innovation, was previously involved in a lawsuit challenging the 2020 Section 1557 regulation.

Jenna Becker

Jenna Becker is a 2L at Harvard Law School with a background in healthcare software.

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