The Biden administration announced that it’s overturning a Trump-era Department of Health and Human Services (HHS) rule that excluded gender identity from sex discrimination protections in the Obamacare statute.
The rule dealt with Section 1557 of the Affordable Care Act, which made it unlawful to discriminate on the basis of “race, color, national origin, sex, age, or disability in certain health programs and activities.”
Health and Human Services Secretary Xavier Becerra said on May 10 that the decision was made in light of a landmark Supreme Court ruling on an unrelated topic.
The June 15, 2020, ruling in Bostock v. Clayton County–that employees can’t be fired from their jobs because of sexual orientation or gender identity—was a defeat for the Trump administration. During oral arguments in the case, then-Solicitor General Noel Francisco said, “Sex means whether you’re male or female, not whether you’re gay or straight.”
Decision author Justice Neil Gorsuch wrote that the ruling dealt with employment alone and didn’t apply to “sex-segregated bathrooms, locker rooms, and dress codes,” all of which are regulated under another law, Title IX of the Education Amendments Act of 1972, which wasn’t at issue in the court case.
The court ruling brought an expanded meaning to the phrase “on the basis of sex” that appears in the nondiscrimination provisions of the Civil Rights Act of 1964, and followed the court’s controversial 2015 ruling that gave same-sex couples the right to marry in the 5–4 decision of Obergefell v. Hodges.
A lack of linguistic clarity has clouded legal issues in recent years as the concepts of sex and sexual identity or gender have become difficult to separate. Despite the distinct meanings of “sex” and “gender,” many institutions and individuals use “gender” to mean biological sex.
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