In recent weeks, the Biden administration has announced two critically important steps to ensure that LGBTQ individuals of all ages are protected against discrimination.  Both efforts rely upon the 2020 US Supreme Court decision in Bostock v. Clayton County. This landmark ruling affirmed that sex discrimination in federal law covers discrimination based on sexual orientation and gender identity.  While that ruling specifically covered employment discrimination, there is a long history and precedent that this definition of sex discrimination covers other areas of discrimination.

To make these changes in federal law without Congressional approval, the Biden administration must open a public comment period to hear from individuals and organizations on why they support these updated definitions and are used in regulatory actions.  Until Congress finally takes action to pass federal legislation, these rules are the only way we can be assured that we won’t be discriminated against in the important areas of education and healthcare.

 Discrimination against students – Title IX

The proposed regulations will advance Title IX’s goal of ensuring that no person experiences sex discrimination, sex-based harassment, or sexual violence in education. As the Supreme Court wrote in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), it is “impossible to discriminate against a person” on the basis of sexual orientation or gender identity without “discriminating against that individual based on sex.” The regulations will require that all students receive appropriate supports in accessing all aspects of education. They will strengthen protections for LGBTQI+ students who face discrimination based on sexual orientation or gender identity. And they will require that school procedures for complaints of sex discrimination, including sexual violence and other sex-based harassment, are fair to all involved.  The proposed regulations also reaffirm the Department’s core commitment to fundamental fairness for all parties, respect for freedom of speech and academic freedom, respect for complainants’ autonomy, and clear legal obligations that enable robust enforcement of Title IX.

The proposed regulations would:

• Clearly protect students and employees from all forms of sex discrimination.
• Provide full protection from sex-based harassment.
• Protect the right of parents and guardians to support their elementary and secondary school children.
• Require schools to take prompt and effective action to end any sex discrimination in their education programs or activities – and to prevent its recurrence and remedy its effects.
• Protect students and employees who are pregnant or have pregnancy-related conditions.
• Require schools to respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased decisionmakers to evaluate the evidence.
• Require schools to provide supportive measures to students and employees affected by conduct that may constitute sex discrimination, including students who have brought complaints or been accused of sex-based harassment.
• Protect LGBTQI+ students from discrimination based on sexual orientation, gender identity, and sex characteristics.
• Clarify and confirm protection from retaliation for students, employees, and others who exercise their Title IX rights.
• Improve the adaptability of the regulations’ grievance procedure requirements so that all recipients can implement Title IX’s promise of nondiscrimination fully and fairly in their educational environments.
• Ensure that schools share their nondiscrimination policies with all students, employees, and other participants in their education programs or activities.

The Department will engage in a separate rulemaking to address Title IX’s application to athletics.

 

Click here if you would like to add your comments on why these protections are important to you, your children or the LGBTQ community in general.

 

Please note that comments are due by September 12, 2022

 

Discrimination in healthcare – Section 1557 of the ACA

The proposed rule affirms protections against discrimination on the basis of sex, including sexual orientation and gender identity consistent with the U.S. Supreme Court’s holding in Bostock v. Clayton County, and reiterates protections from discrimination for seeking reproductive health care services. Strengthening this rule is part of the Biden-Harris Administration’s commitment to advancing gender and health equity and civil rights, as laid out in President Biden’s executive orders on Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation, Protecting Access to Reproductive Healthcare Services, and Advancing Racial Equity and Support for Underserved Communities.

 

The Section 1557 Notice of Proposed Rulemaking (NPRM) seeks to address gaps identified in prior regulations. In order to advance protections under this rule it:

• Reinstates the scope of Section 1557 to cover HHS’ health programs and activities.
• Clarifies the application of Section 1557 nondiscrimination requirements to health insurance issuers that receive federal financial assistance.
• Aligns regulatory requirements with Federal court opinions to prohibit discrimination on the basis of sex including sexual orientation and gender identity.
• Makes clear that discrimination on the basis of sex includes discrimination on the basis of pregnancy or related conditions, including “pregnancy termination.”
• Ensures requirements to prevent and combat discrimination are operationalized by entities receiving federal funding by requiring civil rights policies and procedures.
• Requires entities to give staff training on the provision of language assistance services for individuals with limited English proficiency (LEP), and effective communication and reasonable modifications to policies and procedures for people with disabilities.
• Requires covered entities to provide a notice of nondiscrimination along with a notice of the availability of language assistance services and auxiliary aids and services.
• Explicitly prohibits discrimination in the use of clinical algorithms to support decision-making in covered health programs and activities.
• Clarifies that nondiscrimination requirements applicable to health programs and activities include those services offered via telehealth, which must be accessible to LEP individuals and individuals with disabilities.
• Interprets Medicare Part B as federal financial assistance.
• Refines and strengthens the process for raising conscience and religious freedom objections.

While the Department is undertaking this rulemaking, both the statute and the current regulation are in effect. If you believe that you or another party has been discriminated against on the basis of race, color, national origin, sex, age, or disability, visit the OCR complaint portal to file a complaint online.

 

Click here if you would like to add your comments on why these protections are important to you

 

Please note that comments are due by October 3, 2022