By Tracy Hill
On Friday, June 12, 2020, the Office for Civil Rights (OCR) of the Department of Health and Human Services (HHS) issued a new final rule to dramatically revise the agency’s prior interpretation of Section 1557 of the Affordable Care Act (ACA), the law’s primary anti-discrimination provision. The new final rule removes transgender health protections. As a proud mom of a transgender son, I was devastated.
And, like Tia Sherèe Gaynor, a political science professor at the University of Cincinnati, expressed in an NPR interview, "I can't help but think about how this rule impacts Black trans people, who are arguably the most marginalized group in our country."
Then, three days later, the Supreme Court ruled to uphold anti-discrimination protections for LGBTQ workers, stating that workplace discrimination because of an individual’s sexual orientation or gender identity is unlawful under the Civil Rights Act of 1964. I cried with joy and relief. But...
What does the Supreme Court’s ruling mean for the ACA?
UPDATE (8/17/20): While the OCR did indeed publish the final rule, this came in at the 11th hour: Federal Court Blocks Trump Admin. from Rolling Back Transgender Healthcare Protections.
OCR has not yet published the final rule in the Federal Register, which means it still has time to withdraw the affected portions of the rule. If OCR did want to advance a new definition or interpretation of “sex” discrimination based on the Title VII ruling, it could still do so. As of this writing, the final rule is scheduled to be published on June 19, 2020.
Regardless of how the new final rule plays out, employers can always maintain nondiscrimination policies and practices broader than what federal or state law requires.
About the Author
Tracy Hill is an Employee Benefits Communication Strategist at Lumity. Her days are spent crafting materials to help employees understand their health plan options. She taps into 17+ years of marketing experience at high tech companies where she focused on explaining complicated systems in layperson terms, and now she applies her communication skills to unraveling the mysteries of health insurance. She's also a community steward and steering committee member of the HR for HR online community.