HHS announces prohibition on sexual orientation, gender identity discrimination

HHS says the agency’s prohibition on sex discrimination includes that based on sexual orientation and gender identity.

The Department of Health and Human Services (HHS) Office for Civil Rights (OCR) will enforce a prohibition on discrimination on the basis of sexual orientation and gender identity citing a 2020 Supreme Court.

According to a news release, the OCR will interpret and enforce Section 1557 and Title IX to include sexual orientation and gender identity due to the Supreme Court’s decision in Bostock v. Clayton County.

“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation,” HHS Secretary Xavier Becerra says in the release. “That’s why today HHS announced it will act on related reports of discrimination. Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone – including LGBTQ people - should be able to access health care, free from discrimination or interference, period.”

Section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in covered health programs or activities. The Supreme Court’s majority opinion in Bostock concluded that the plain meaning of “because of sex” necessarily included sexual orientation and gender identity, the release says.

“OCR’s mission is to protect people from all forms of discrimination,” Robinsue Frohboese, acting OCR Director, says in the release.“OCR will follow Supreme Court precedent and federal law, and ensure that the law’s protections extend to those individuals who are discriminated against based on sexual orientation and gender identity.”