On March 2, 2022, the Office for Civil Rights (“OCR”) in the U.S. Department of Health & Human Services (“HHS”) released notice and guidance on federal civil rights protections and privacy laws that apply to gender-affirming care (the “Notice”). In the Notice, OCR affirms its intent to investigate and enforce Section 1557 of the Affordable Care Act (“Section 1557”) in cases involving complaints of discrimination on the basis of sexual orientation and gender identity. OCR also reminds covered entities that it enforces Section 504 of the Rehabilitation Act of 1973 (“Section 504”), which protects individuals with disabilities from discrimination in programs and activities that receive financial assistance from HHS. OCR indicates in the Notice that restrictions that prevent individuals with gender dysphoria from obtaining medically necessary treatment may violate Section 504.
The Notice comes during a divisive state legislative session when lawmakers have introduced bills aimed to limit the ability of minors to seek gender-affirming care and regulate certain reporting requirements related to such minors. In the related media release, HHS makes clear its guidance is intended to directly combat state laws, regulations and orders, such as the gubernatorial order in Texas, that require providers to disclose private patient information related to gender-affirming care or restrict doctors and health care providers from providing care because of a patient’s gender identity. The Notice states that HHS “stands with transgender and gender-nonconforming youth and their families—and the significant majority of expert medical associations—in unequivocally stating that gender-affirming care for minors, when medically appropriate and necessary, improves their physical and mental health.” The Notice also indicates that “attempts to restrict, challenge, or falsely characterize this potentially lifesaving care as abuse is dangerous” and that the Notice is intended to provide families and health care providers that are fearful and concerned about attempts to portray gender-affirming care for minors as abuse with guidance on federal civil rights protections and federal health privacy laws that apply to gender-affirming care. HHS also published an Information Memorandum that encourages states to use their child welfare systems to advance safety and support for LGBTQI+ youth, including access to gender-affirming care.
Background
Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in covered health programs or activities that receives financial assistance from HHS. Whether prohibiting gender-affirming care is considered discrimination under Section 1557 and other federal laws has been a subject of debate over the most recent presidential administrations. In June 2020, the Trump Administration issued a final rule implementing Section 1557 (the “2020 Rule”) that significantly narrowed the scope of a 2016 rule issued by the previous Obama Administration (the “2016 Rule”). Notably, the 2020 Rule reinterpreted the regulatory definition of “sex” for purposes of assessing discrimination under Section 1557 as only referring to biological sexes of male and female, undoing the more expansive interpretation in the 2016 Rule that included gender identity and sexual orientation within its purview.
On August 17, 2020, the day before the Trump Administration’s 2020 Rule was to take effect, the Eastern District of New York issued a nationwide preliminary injunction preventing implementation of the provision in the 2020 Rule that excludes sex stereotyping from the definition of sex discrimination in Walker v. Azar. In September 2020, the DC federal district court also blocked implementation of the provision in the 2020 Rule that excludes sex stereotyping from the definition of sex discrimination in Whitman-Walker Clinic v. HHS. Following these and other court cases, HHS issued a Federal Register notice in May of 2021 clarifying that OCR will comply with all applicable court decisions, including Walker and Whitman-Walker, and interpret and enforce Section 1557’s prohibition on sex discrimination as including discrimination on the basis of both sexual orientation and gender identity.
HHS Guidance on Gender-Affirming Care and Anti-Discrimination Laws
The Notice affirms that OCR will consider the categorical refusal to provide treatment to an individual based on their gender identity as prohibited discrimination under Section 1557. Further, OCR also states that restricting an individual’s ability to receive gender-affirming medically necessary care from the individual’s health care provider solely on the basis of the individual’s sex assigned at birth or gender identity likely also violates Section 1557.
In the Notice, OCR gives the example of a health care provider reporting a parent to state authorities for seeking consultation for their child’s gender-affirming care as a situation that may give rise to a violation of Section 1557 if the health care provider or facility receives federal financial assistance. OCR further provides that such a facility restricting a health care provider’s ability to provide or prescribe gender-affirming care may also violate Section 1557.
Additionally, OCR provides that in some cases gender dysphoria may qualify as a disability under Section 504 and the Americans with Disabilities Act of 1990 (“ADA”). Accordingly, restrictions that prevent otherwise qualified individuals from receiving medically necessary care on the basis of gender dysphoria may violate Section 504 and the ADA.
Finally, the Notice reminds covered entities that the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) generally prohibits disclosure of protected health information (“PHI”) about gender-affirming care without a patient’s, or in the case of a minor, their parent’s or guardian’s written authorization. While covered entities and business associates are permitted (though not required) by HIPAA to disclose PHI without an authorization when required by law, this exception only applies when the mandate is contained in a law that compels the entity to make a use or disclosure of PHI that is enforceable in a court of law. The entity must also limit its disclosure to the relevant requirements of such law.
Practical Takeaways
- The Notice is intended only to provide guidance and clarity regarding existing requirements under the law and HHS policies. As such, the Notice is not binding and does not have the force and effect of law.
- The Notice does not address any potential religious exemptions that could be asserted by the health care entity or one of its providers related to the provision of gender-affirming care and the impact on its enforcement of Section 1557 and Section 504.
- Health care providers and entities in states with laws that may conflict with the guidance provided in the Notice should be aware that federal law preempts state law under the U.S. Constitution and seek guidance on how to proceed in a compliant manner.
- The Notice identifies several issues with respect to gender-affirming care and sex discrimination in health care but does not explicitly provide a clear stance or answer with respect to each. Ultimately, this may lead to greater confusion than clarity on the appropriate response. This is an area that will continue to become more nuanced and challenging as states enact their own laws and regulations or take additional action with respect to gender-affirming care for minors that may conflict or appear inconsistent with the current federal approach. OCR encourages health care providers who are concerned about their obligation to disclose information concerning gender-affirming care to seek additional legal guidance regarding their legal responsibilities and the applicability of other laws.
For more information, please contact:
- Michael Batt at (317) 977-1417 or mbatt@wp.hallrender.com;
- Stephane Fabus at (414) 721-0904 or sfabus@wp.hallrender.com;
- Emily Beukema at (248) 457-7882 or ebeukema@wp.hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
