Sex, Religion, and Politics, or the Future of Healthcare Antidiscrimination Law

Abstract

This symposium contribution assesses existing interpretations of and ongoing controversies over Section 1557 of the Affordable Care Act, which extends healthcare antidiscrimination protections to sex for the first time. A new rule issued in 2016 interpreted “sex” to encompass sex stereotyping, pregnancy (and termination of pregnancy), and gender identity — pointing to judicial precedent under Title IX of the Education Amendments and its sister statutes. This rule immediately faced resistance on the grounds that it read “sex” too broadly and failed to incorporate the exceptions of Title IX so as to permit religious objectors to engage in sex discrimination.

We argue that as HHS under the Trump administration moves to reassess the nondiscrimination rule, the agency is not unfettered. Religious exemptions beyond those incorporated into the ACA may not be granted consistent with the statute and Congressional intent. Nor can the agency reduce sex discrimination to a binary biological conception of sex. While judicial interpretation of sex discrimination under existing civil rights laws is evolving, it is clear that sex discrimination bars sex stereotyping. Ironically, given the fierce resistance to providing care and insurance for transgender people, HHS has limited leeway to exclude gender identity discrimination from Section 1557. Given the current state of legal doctrine, however, HHS permissibly might interpret Section 1557 to permit discrimination and/or harassment on the ground of sexual orientation alone, even as it must recognize that LGB people are protected from sex discrimination to the extent that such discrimination relies on sex stereotypes. These interpretations are supported by their consistency with Section 1557’s statutory context and the Affordable Care Act’s cross-cutting purpose of eliminating discrimination.

Keywords: health, discrimination, LGBT, sex, sexuality, women, religion