The federal Affordable Care Act (42 U.S.C. 18116) currently provides that an individual shall not be subject to discrimination based on any of the protected classifications covered under Title VI of the Civil Rights Act of 1964 (including race, color, and national origin), Title IX of the Education Amendments of 1972 (sex), the Age Discrimination Act of 1975 (age), or Section 504 of the Rehabilitation Act of 1973 (disability), for any health program or activity that receives federal financial assistance.
In June 2020, the United States Supreme Court determined that the existing prohibition in Title VII of the Civil Rights Act of 1964 relating to employment discrimination based on sex included discrimination based on both sexual orientation and gender identity. (Bostock v. Clayton County, GA, 140 S. Ct. 1731 (2020)). Additional federal cases since the Bostock decision have also held that the language in Title IX of the Education Amendments of 1972 related to the prohibition on sex discrimination must be read in the same manner as in Bostock.
In light of these decisions, on May 10, 2021, the federal Department of Health and Human Services announced that the federal Office for Civil Rights will interpret and enforce the Affordable Care Act’s prohibition in Section 1557 on discrimination on the basis of sex to include discrimination as a result of both sexual orientation and gender identity.
The federal Office for Civil Rights will rely on this new interpretation in order to process future discrimination complaints as well as to direct investigations.
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