Health and Human Services Secretary Sylvia Burwell cited a new rule added to the Obamacare law to prevent discrimination, including “sexual stereotyping,” as one of the Obama administration’s successes in advancing homosexual rights.
“We took a major step just last month in the final rule of Section 1557 of the Affordable Care Act,” Burwell said at an event on June 9 at the agency in Washington, D.C., to mark Gay Pride Month.
The new final rule – which goes into effect on July 18 and was issued by HHS’s Office of Civil Rights – addresses three types of discrimination – those based on disabilities, persons with limited English proficiency, and discrimination “based on sex.”
Patricia Dean, a partner in the Holland & Hart law firm in Washington, D.C., analyzed the portion of the 99-page regulation that is focused on sex discrimination, including gender identity and sexual stereotyping.
Dean explained the regulation as follows:
“The final rules define ‘gender identity’ as an individual's internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual's sex assigned at birth,” Dean wrote in the analysis posted on the law firm’s website on June 8.
“A ‘transgender individual’ is an individual whose gender identity is different from the sex assigned to that person at birth,” Dean wrote. “In defining what includes ‘sex stereotyping,’ the new rules reflect the Supreme Court's holding in Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989) that stereotypical notions of appropriate behavior, appearance, or mannerisms for each gender constitutes sex discrimination.
“The new rules thus define ‘sex stereotypes’ as stereotypical notions of masculinity or femininity, including expectations of how individuals represent or communicate their gender to others, such as behavior, clothing, hairstyles, activities, voice, mannerisms, or body characteristics,” Dean wrote. “Stereotypes can include the expectation that individuals will consistently identify with only one gender and that they will act in conformity with the gender-related expressions stereotypically associated with the gender.”
Dean called the rule “the first federal civil rights law to prohibit discrimination ‘on the basis of sex,’” including gender identity and sex stereotyping in health care programs.