Discrimination on the Basis of Sex

OCR enforces the following laws as they apply to recipients of HHS federal financial assistance. Links are from GPO.gov unless otherwise noted.

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HHS Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy

The Department of Health & Human Services (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. Attempts to restrict, challenge, or falsely characterize this potentially lifesaving care as abuse is dangerous. Such attempts block parents from making critical health care decisions for their children, create a chilling effect on health care providers who are necessary to provide care for these youth, and ultimately negatively impact the health and well-being of transgender and gender nonconforming youth. The HHS Office for Civil Rights (OCR) will continue working to ensure that transgender and gender nonconforming youth are able to access health care free from the burden of discrimination. HHS understands that many families and health care providers are facing fear and concerns about attempts to portray gender affirming care as abuse. To help these families and providers navigate those concerns, HHS is providing additional information on federal civil rights protections and federal health privacy laws that apply to gender affirming care.

As a law enforcement agency, OCR is investigating and, where appropriate, enforcing Section 1557 of the Affordable Care Act1 cases involving discrimination on the basis of sexual orientation and gender identity in accordance with all applicable law. This means that if people believe they have been discriminated against in a health program or activity that receives financial assistance from HHS, they can file a complaint.

Health Programs and Activities

Section 1557 of the Patient Protection and Affordable Care Act (42 USC 18116) and its implementing regulation provide that an individual shall not be excluded from participation in, be denied the benefits of, or be subjected to discrimination on the grounds prohibited under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq. (race, color, national origin), Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq. (sex), the Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq. (age), or Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 (disability), under any health program or activity, any part of which is receiving federal financial assistance; any program or activity administered by the Department under Title I of the Act; or any program or activity administered by any entity established under such Title. The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services has enforcement authority with respect to health programs and activities that receive federal financial assistance from the Department of Health and Human Services (HHS), or are administered by HHS or any entity established under Title I of the Affordable Care Act. OCR is responsible for enforcing regulations issued under Section 1557 of the Affordable Care Act (Section 1557), protecting the civil rights of individuals who access or seek to access covered health programs or activities. Section 1557 prohibits discrimination on the basis of race, color, national origin, age, disability, or sex (including pregnancy, sexual orientation, and gender identity) in covered health programs or activities. 42 U.S.C. § 18116(a).

On June 15, 2020, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 (Title VII)’s prohibition on employment discrimination based on sex encompasses discrimination based on sexual orientation and gender identity. Bostock v. Clayton County, GA, 140 S. Ct. 1731 (2020). The Bostock majority concluded that the plain meaning of “because of sex” in Title VII necessarily included discrimination because of sexual orientation and gender identity. Id. at 1753-54.

Since Bostock, two federal circuits have concluded that the plain language of Title IX of the Education Amendments of 1972’s (Title IX) prohibition on sex discrimination must be read similarly. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), as amended (Aug. 28, 2020), reh’g en banc denied, 976 F.3d 399 (4th Cir. 2020), petition for cert. filed, No. 20-1163 (Feb. 24, 2021); Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1305 (11th Cir. 2020), petition for reh’g en banc pending, No. 18-13592 (Aug. 28, 2020). In addition, on March 26, 2021, the Civil Rights Division of the U.S. Department of Justice issued a memorandum to Federal Agency Civil Rights Directors and General Counsel concluding that the Supreme Court’s reasoning in Bostock applies to Title IX of the Education Amendments of 1972. As made clear by the Affordable Care Act, Section 1557 prohibits discrimination “on the grounds prohibited under . . . Title IX.” 42 U.S.C. § 18116(a).

Consistent with the Supreme Court’s decision in Bostock and Title IX, beginning May 10, 2021, OCR will interpret and enforce Section 1557’s prohibition on discrimination on the basis of sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity. This interpretation will guide OCR in processing complaints and conducting investigations, but does not itself determine the outcome in any particular case or set of facts.

In enforcing Section 1557, as stated above, OCR will comply with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., and all other legal requirements. Additionally, OCR will comply with all applicable court orders that have been issued in litigation involving the Section 1557 regulations, including Franciscan Alliance, Inc. v. Azar, 414 F. Supp. 3d 928 (N.D. Tex. 2019); Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Hum. Servs., 485 F. Supp. 3d 1 (D.D.C. 2020); Asapansa-Johnson Walker v. Azar, No. 20-CV-2834, 2020 WL 6363970 (E.D.N.Y. Oct. 29, 2020); and Religious Sisters of Mercy v. Azar, No. 3:16-CV-00386, 2021 WL 191009 (D.N.D. Jan. 19, 2021).

OCR applies the enforcement mechanisms provided for and available under Title IX when enforcing Section 1557’s prohibition on sex discrimination. 45 C.F.R. § 92.5(a). Title

IX’s enforcement procedures can be found at 45 C.F.R. § 86.71 (adopting the procedures at 45 C.F.R. §§ 80.6 through 80.11 and 45 C.F.R. Part 81).

Note: On October 15, 2019 and November 21, 2019, the U.S. District Court for the Northern District of Texas in Franciscan Alliance, Inc. v. Azar issued, respectively, a Memorandum and Opinion and Order in which the court vacated portions of Section 1557 insofar as the rule defines “on the basis of sex” to include gender identity and termination of pregnancy.  OCR will continue to abide by the vacatur.

For additional information about Section 1557 of the Patient Protection and Affordable Care Act as well as applicable court orders, please see: https://www.hhs.gov/civil-rights/for-individuals/section-1557/index.html.

Education and Health Training Programs

Title IX of the Education Amendments of 1972, as amended, (20 USC § 1681) prohibits discrimination on the basis of sex in federally-assisted education programs. The non-discrimination protections apply to student recruitment, admissions, educational programs (including individual courses), housing, counseling, financial and employment assistance, health and insurance benefits and services. It also covers employment practices and benefits (45 CFR Part 86).

Sections 794 & 855 of the Public Health Service Act (42 USC §§ 295m296g) prohibits discrimination on the basis of sex in federally assisted health training programs (45 CFR Part 83).

Specific Programs

Section 533 of the Public Health Service Act prohibits discrimination on the basis of age, race, color, national origin, disability, sex, or religion in Projects for Assistance in Transition from Homelessness (42 USC § 290cc-33).

The Family Violence Prevention and Services Act prohibits discrimination on the basis of race, color, national origin, disability, sex, or religion in programs, services, and activities funded under this Act (42 USC § 10406).

The Low-Income Home Energy Assistance Act of 1981 prohibits discrimination on the basis of age, race, color, national origin, disability, or sex in programs, services, and activities funded under this Act (42 USC § 8625).

The Communications Act of 1934, as amended by Equal Employment Opportunity provisions, prohibit employment discrimination on the basis of age, race, color, religion, national origin, or sex by Federally-funded public telecommunication entities (47 USC § 398).

Block Grants

Section 508 of the Social Security Act prohibits discrimination on the basis of age, race, color, national origin, disability, sex, or religion in the Maternal and Child Health Services Block Grant (42 USC § 708). 

Section 1908 of the Public Health Service Act prohibits discrimination on the basis of age, race, color, national origin, disability, sex, or religion in programs, services, and activities funded by Preventive Health and Health Services Block Grants (42 USC § 300w-7). [source: www.house.gov]

Section 1947 of the Public Health Service Act prohibits discrimination on the basis of age, race, color, national origin, disability, sex, or religion in programs, services, and activities funded by Community Mental Health Services Block Grant and Substance Abuse Prevention and Treatment Block Grants (42 USC § 300x-57).

The Community Services Block Grant Act prohibits discrimination on the basis of age, race, color, national origin, disability, or sex in programs, services, and activities funded under this Act (42 USC § 9918).

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