By: Kendall Jackson, Esq.

The implications of the Section 1557 Final Rule are currently in flux since the Final Rule was issued on April 26, 2024. The purpose of the Final Rule was to extend the protections against discrimination in healthcare, with a particular emphasis on gender identity. The inclusion of gender-affirming care within the protection against sex discrimination was a huge step forward in strengthening the scope of Section 1557 beyond what was originally afforded when the rule first passed.

Unfortunately, there have been several challenges to the Final Rule where various district courts either stayed or enjoined particular provisions of the Final Rule. For example, in Florida v. Department of Health and Human Services, No. 8:24-cv-1080-WFJ-TGW (M.D. Fla.), the district court stayed several provisions of the Final Rule as they related to the protections for gender identity. Consequently, the Office for Civil Rights (OCR) may not enforce the Final Rule’s interpretation that sex discrimination includes gender identity in the state of Florida. Similarly, in Tennessee v. Becerra, No. 1:24cv161-LG-BWR (S.D. Miss.), the district court stayed nationwide the sections of the Final Rule that pertained to the extended protections for gender identity. The effects of this case prevent the Department of Health and Human Services from enforcing the provisions of the Final Rule to the extent that gender identity is within the scope of sex discrimination. The nationwide impact of this district court ruling is a significant setback, as it hinders the efforts of OCR to safeguard those who face discrimination in healthcare due to their gender identity. Lastly, in Texas v. Becerra, No. 6:24-cv-211-JDK (E.D. Tex.), the district court stayed the Final Rule in its entirety in both Texas and Montana – meaning OCR may not enforce the provisions of the Final Rule in either of those states.

Despite the district courts’ rulings, the other provisions of the Final Rule that do not relate to gender identity are still in effect for all states, excluding Texas and Montana. These requirements include providing a notice of nondiscrimination, which affirms that the covered entity does not discriminate on the basis of race, color, national origin, sex, age, or disability and describes how to obtain auxiliary aids and services and language assistance services for those with limited English proficiency, as well as how to file grievances and complaints. Covered entities are also required to post taglines in at least the 15 top non-English languages spoken in the State in which the covered entity is located or operates.

While it is beneficial that several requirements of the Final Rule are still in effect, the district courts’ rulings inhibit OCR from extending protections against discrimination in a way that mirrors the diverse society we live in today. Although the rulings were not the outcome that OCR and many individuals desired, the Final Rule is very likely not the last piece of legislation with the intent to prevent discrimination against individuals based on gender identity.