HHS Notice Reiterates ACA Section 1557’s Prohibition of Gender Identity Discrimination

HHS has issued a notice providing additional guidance on federal civil rights protections and federal health privacy laws that apply to gender affirming care for transgender and gender nonconforming youth. A press release makes clear that the notice is in response to a Texas gubernatorial order that is aimed at disallowing certain gender-transitioning procedures for adolescents with gender dysphoria by characterizing the procedures as child abuse. State law requires health care providers, other licensed professionals, and the public to report these procedures and provides criminal penalties for failure to report. In addition, state agencies are directed to investigate the parents of children receiving such treatment as well as the facilities providing the care.

The notice explains that Affordable Care Act (ACA) Section 1557 protects an individual’s right to access health programs and activities receiving federal financial assistance without facing discrimination on the basis of sex, which includes discrimination on the basis of gender identity. For example, if a parent and child visit a doctor for a consultation regarding gender affirming care, and the doctor reports the parent to state authorities for seeking such care, the reporting may violate Section 1557. Similarly, restricting a health care provider’s ability to provide or prescribe such care may also violate Section 1557. The Rehabilitation Act and the Americans with Disabilities Act protect individuals with disabilities from discrimination, and gender dysphoria may, in some cases, qualify as a disability under these laws. Thus, state restrictions on medically necessary care based on gender dysphoria may violate these federal laws as well.

The notice also reminds HIPAA covered entities and business associates that the HIPAA privacy rule permits, but does not require, disclosure of protected health information (PHI) about an individual without the individual’s authorization when such disclosure is required by another law. Where a disclosure is required by law, the disclosure is limited to the relevant requirements of that law. The notice advises that, subject to this limited exception, HIPAA prohibits disclosure of gender affirming care that is PHI without an individual’s authorization. Individuals who believe they or another party have experienced a privacy violation or have been discriminated against in seeking access to gender affirming care are encouraged to file a complaint  with HHS.

EBIA Comment: The HHS notice and the Texas order to which it responds are both aimed primarily at health care providers and individuals, and it is unclear if the order imposes any obligation on employer-sponsored group health plans. It is clear, however, that HHS remains steadfast in its determination that Section 1557 and other civil rights laws protect individuals’ rights to health care regardless of their gender identity, a position manifested in a previous HHS notice (see our Checkpoint article) and in proposed guaranteed availability regulations (see our Checkpoint article). And it will undoubtedly be reflected in proposed Section 1557 regulations, which HHS has indicated will be issued in 2022. For more information, see EBIA’s Health Care Reform manual at Section XXXIV.A (“Section 1557 Nondiscrimination Provisions: Grounds Prohibited Under Federal Laws”), EBIA’s Group Health Plan Mandates manual at Section XXI.M.1 (“Interaction of Title VII and Section 1557”), and EBIA’s HIPAA Portability, Privacy & Security manual at Section XXVI.D (“Disclosure for Specific Public Policy-Related Purposes”). See also EBIA’s Self-Insured Health Plans manual at Sections XIII.D.5 (“Section 1557 Nondiscrimination: Nondiscrimination in Health Programs and Activities”) and XXXI.B (“HIPAA Privacy”).

Contributing Editors: EBIA Staff.