Since his inauguration on January 20, 2025, President Trump has issued a flurry of executive orders ("EOs"). Three of these EOs rescind Biden Administration guidance extending the nondiscrimination protections under Section 1557 of the Affordable Care Act (the "ACA") to discrimination based on gender identity.1 These protections have had a tumultuous history since Section 1557 was enacted in 2010, with each administration reversing course from the last. The new administration has reverted to the position taken in President Trump's last presidency - that the protections against discrimination "on the basis of sex" do not apply to gender identity.
History of Section 1557's Protections Against Discrimination on the Basis of Gender Identity
Enacted in 2010 as part of the ACA, Section 1557 is aimed at ensuring that individuals are not excluded from participation in, denied the benefit of, or subjected to discrimination under any health program or activity that receives federal financial assistance. It does so by incorporating and building on long-standing and familiar federal civil rights laws. Section 1557's prohibition against sex discrimination comes from Title IX of the Education Amendments of 1972.
The U.S. Department of Health and Human Services ("HHS") did not issue implementing regulations for Section 1557 until 2016, towards the end of the Obama Administration. In these 2016 regulations, discrimination on the basis of gender identity, as well as discrimination on the basis of termination of pregnancy, was included within the prohibition against sex discrimination.2 This rule was soon challenged in the Northern District of Texas in Franciscan Alliance v. Azar by religiously-affiliated healthcare providers and states, resulting in an October 2019 holding that the regulations violated the Administrative Procedures Act and the Religious Freedom Restoration Act.3 This decision vacated the inclusion of gender identity and termination of pregnancy in the definition of sex discrimination. In June 2020, regulations from the first Trump Administration eliminated language interpreting sex discrimination as including discrimination on the basis of gender identity or termination of pregnancy, in line with the court's holding in Franciscan Alliance.
Shortly after, the newly inaugurated President Biden sought to reinstate the protections relating to gender identity that had existed prior to 2019. In January 2021, he issued an EO titled "Preventing and Combating Discrimination on the Basis ofGender Identity or Sexual Orientation" directing heads of federal agencies to review all agency actions, regulations, and guidance relating to laws prohibiting sex discrimination to ensure that such agency actions were compliant with the Biden Administration's policy to "prevent and combat discrimination on the basis of gender identity or sexual orientation." In response, in March 2021, the Department of Justice ("DOJ") issued guidance instructing federal agencies to apply Bostock v. Clayton County, Georgia,4 a 2020 sex-based employment discrimination case in which the Supreme Court held that discrimination based on sex encompasses sexual orientation and gender identity, to Title IX.5 In May 2021, HHS issued a notice stating that it would interpret Section 1557's prohibition on sex discrimination to include discrimination on the basis of gender identity consistent with Bostock.
A year later, in May 2022, the HHS Office for Civil Rights ("HHS OCR") issued a memo titled "HHS Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy," emphasizing HHS's position that "gender affirming care for minors, when medically appropriate and...
