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Injunction Issued on Section 1557 Gender Identity and Pregnancy Termination Provisions

Section 1557 of the Affordable Care Act (ACA) prohibits discrimination on the basis of race, color, national origin, sex, age, or disability for individuals participating in: (1) any health program or activity any part of which received funding from HHS; (2) any health program or activity that HHS itself administers; or (3) health Insurance Marketplaces and all plans offered by issuers that participate in those Marketplaces.

In most instances, in the private sector, this rule is limited to health care providers. Section 1557 requires covered entities to:

  • Treat individuals consistent with their gender identity;
  • Treat women equally with men in the health care they receive;
  • Not deny health care or health coverage based on an individual’s sex, including discrimination based on pregnancy, gender identity, and sex stereotyping;
  • Make all programs and activities provided through electronic and information technology accessible;
  • Ensure the physical accessibility of newly constructed or altered facilities;
  • Take reasonable steps to provide meaningful access to each individual with limited English proficiency;
  • Post notices of nondiscrimination that alert individuals with limited English proficiency to the availability of language assistance services;
  • Post taglines in at least the top 15 non-English languages spoken in the State in which the entity is located or does business;
  • Provide appropriate auxiliary aids and services for individuals with disabilities;
  • Implement grievance procedures;
  • Appoint a compliance coordinator;

Notably, the final rule on Section 1557 does not include a religious exemption. On December 31, 2016, stemming from legal action brought by a religious organization, the U.S. District Court for the Northern District of Texas issued a nationwide injunction enjoining Section 1557’s prohibitions against discrimination on the basis of gender identity and pregnancy termination.

Tip: Categorical exclusions may still be deemed discrimination by the EEOC under the ADA. Additionally, the injunction does not apply to Executive Order 11246 which implemented similar nondiscrimination rules for federal contractors.

While the injunction remains in place, HHS’s Office of Civil Rights may not enforce these two provisions, but will continue to enforce all other provisions of Section 1557 noted above.

 

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