On May 25, 2021, the Department of Health and Human Services (HHS) announced that it would again interpret and enforce the Section 1557 of the Affordable Care Act (Section 1557) discrimination prohibition on the basis of sex to include discrimination based on sexual orientation and gender identity. Section 1557 is enforced by the Office for Civil Rights under Title IX. When Section 1557 was initially implemented in 2016, it included protection against discrimination on the basis of sexual orientation and gender identity. In 2020, HHS issued a final rule that revised its interpretation of Section 1557 to remove gender identity and sexual orientation as bases for discrimination.
This recent action by HHS to again interpret the Section 1557 discrimination prohibition on the basis of sex to include discrimination based on sexual orientation and gender identity marks a return to its original 2016 interpretation.