What’s Old Is New Again: HHS Proposes to Reinstate and Expand Transgender Nondiscrimination Rules

Since it was enacted in 2010, Section 1557 of the Affordable Care Act (“Section 1557”) has prohibited discrimination in covered health programs and activities on the basis of race, color, national origin, age, disability, or sex.  As we have previously reported, the application of Section 1557 has proven controversial with several competing regulations and numerous ongoing legal challenges.

Notably, the Obama Administration construed Section 1557 to apply to gender identity and sexual orientation.  In 2020, the Trump Administration issued final rules reinterpreting Section 1557 and repealing certain protections with respect to transgender health issues. 

Last year, the Department of Health and Human Services (“HHS”) announced that it would enforce Section 1557 with respect to gender identity and sexual orientation and that it would issue corresponding regulations.  On August 4, 2022, HHS published the anticipated Notice of Proposed Rulemaking (“NPRM”) in the Federal Register.  According to HHS, the NPRM is intended to restore certain Obama-era protections under Section 1557 and to align the regulations with the Supreme Court’s landmark ruling on sex discrimination in Bostock v. Clayton County.  A summary of the NPRM can be found here.

Comments on the NPRM can be submitted via regulations.gov.  The existing regulations under Section 1557 remain in effect until final regulations are issued, if at all.