Highlights
The new ACA Section 1557 Final Rule adopts Title IX’s definition of sex discrimination
Due to current litigation, there is ambiguity regarding if the definition of sex discrimination under Title IX, which includes gender identity, is enforceable against covered university health plans
Religiously affiliated covered entities may be exempt from the Section 1557 provisions involving discrimination on the basis of gender identity
The Biden administration recently promulgated final rules implementing Section 1557 of the Affordable Care Act and Title IX. Both sets of regulations aim to address discrimination based on gender identity.
The final Section 1557 rule, which went into effect on July 5, applies to health programs or activities that receive funding from the Department of Health and Human Services (HHS) and HHS health programs or activities, along with the health insurance marketplace. Title IX applies to educational institutions that receive federal funding.
The Title IX regulations include discrimination based on gender identity within the definition of sex discrimination and the Section 1557 regulations adopted the Title IX regulations’ definition of sex discrimination.
Controversy has followed these regulations. The Title IX regulations are currently enjoined in several states, and in a controversial decision, a Mississippi district court issued a nationwide stay of the Section 1557 regulations to the extent they address discrimination based on gender identity.
These court controversies leave universities, health plans, and healthcare providers unsure of how comply with or respond to these regulations, especially when the university, health plan, or health provider desires not to provide gender-affirming care due to religious beliefs or religious affiliation. A particularly confusing situation occurs when both Title IX and Section 1557 apply to a university’s health plan.
However, religiously affiliated universities may be wondering how the definitions affect their health plans, regardless of whether courts ultimately determine that sex discrimination includes discrimination because of gender identity. The Section 1557 regulations exempt covered entities, such as certain university health plans, from the Section 1557 rules governing gender identity if the covered entities are protected by federal protections for religious freedom and conscience such protections under the Religious Freedom Restoration Act.
For more information, please contact the Barnes & Thornburg attorney with whom you work or Lizzie Ford at 317-231-7336 or maryelizabeth.ford@btlaw.com, Janilyn Daub 574-237-1139 or janilyn.daub@btlaw.com or Amy Kluesner at 470-832-7589 or amy.kluesner@btlaw.com.
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