In 2016, the U.S. Department of Health and Human Services (HHS) issued a rule under the Affordable Care Act that attempted to stretch the definition of sex discrimination beyond biology, to include a person’s perception of gender. The rule subjected healthcare professionals to punishment if they declined on the basis of morality or medicine to participate in transgender procedures and prescriptions.

In 2019, HHS explained the rule that had been promulgated by the previous administration:

Although Congress prohibited discrimination on the basis of sex in 1972 (Title IX), and Section 1557 applied that law to healthcare and the Exchanges established under the ACA, HHS’s 2016 Section 1557 regulation redefined discrimination “on the basis of sex” to include gender identity and termination of pregnancy and defined gender identity as one’s internal sense of being “male, female, neither, or a combination of male and female” [emphasis added].

Our court case (Franciscan Alliance, Inc. et al. v. Burwell) challenged the gender portion of the rule. A federal court in 2016 issued a preliminary injunction that stopped implementation of that portion of the rule. In 2019, the court finally vacated (made void, annulled) the gender portion of the rule. (For more information, see our Court Cases page under Gender Rule cases.)

Text from HHS website:

On December 31, 2016, the U.S. District Court for the Northern District of Texas issued an opinion in Franciscan Alliance, Inc. et al v. Burwell, enjoining the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. Accordingly, HHS’ Office for Civil Rights (HHS OCR) may not enforce these two provisions of the regulation implementing these same provisions, while the injunction remains in place.

To comply with the court’s decision, HHS issued a proposed rule in May 2019 to revise the 2016 rule regarding gender identity provisions.