June 19, 2020

Update on HHS Revised Final Section 1557 Rule

On June 12, 2020, HHS released the final revised enforcement rule for the ACA’s individual non-discrimination provision. HHS explained that the agency “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.”  This rule will take effect on August 18.

On June 15, the U.S. Supreme Court held “[a]n employer who fires an individual merely for being gay or transgender violates [the sex discrimination prohibitions of] Title VII” of the Civil Rights Act of 1964.  Section 1557 of the ACA incorporates the sex discrimination provisions of Title IX of the Education Amendments Act of 1972. Georgetown University law professor Katie Keith has analyzed the Section 1557 implications of  Monday’s opinion.