Section 1557 of the Affordable Care Act is only half a page, and clarifies that the regulations to implement the non-discrimination provisions are left up to the Secretary of HHS. The statutory text of ACA Section 1557 simply says that an individual shall not “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title.”[efn_note]“Compilation of Patient Protection and Affordable Care Act” 111th Congress. May 1, 2010[/efn_note] And it clarifies that the prohibited discrimination falls under rules stemming from the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973. Beyond that, the details are left to HHS. So it’s not surprising that we’ve had multiple iterations of rulemaking for ACA Section 1557, as HHS perspectives shift under changing presidential administrations. Specifically, the administrations have differed in their interpretation of which entities are subject to Section 1557 rules, and on how the nondiscrimination protections should apply with regards to sexual orientation, gender identity, and pregnancy related conditions.[efn_note]“The Biden Administration’s Final Rule on Section 1557 Non-Discrimination Regulations Under the ACA” KFF. May 15, 2024[/efn_note] Each time the rules are changed, it’s called a “final” rule. But that just means that a proposed rule was issued, a comment period was opened, and a rule was finalized. It doesn’t mean the rule can’t change in the future, as we’ve seen multiple times with Section 1557 rulemaking. Here’s how the interpretation of Section 1557 requirements has changed over time: The 2016 Final Rule was the first round of Section 1557 rulemaking, which included protections against discrimination based on gender identity, sex stereotypes, and sexual orientation. The rule clarified that a person’s gender identity “may be male, female, neither, or a combination of male and female.” The 2020 Final Rule – the second round of Section 1557 rulemaking – removed the 2016 ban on discrimination based on gender identity, sex stereotyping, or sexual orientation. The rule also reverted to a binary definition of sex as either male or female. So although people could still submit discrimination complaints to OCR, Section 1557 was being interpreted in a way that prevented the agency from finding that a person was discriminated against based on gender identity or sexual orientation, since those were no longer considered grounds for discrimination. But soon after the 2020 rule was finalized, the Supreme Court ruled in Bostock v. Clayton County that an employer could not discriminate based on a person's gender identity or sexual orientation, as that would constitute discrimination “because of sex.”[efn_note]“Bostock v. Clayton County” Supreme Court of the United States. Ruling issued June 15, 2020[/efn_note] The following year, under a new administration, HHS issued a notification that for consistency with Bostock, HHS would “interpret and enforce section 1557 of the Affordable Care Act prohibition on discrimination on the basis of sex to include: Discrimination on the basis of sexual orientation; and discrimination on the basis of gender identity.” But it would be three more years before an updated version of Section 1557 rulemaking was finalized. 2024 Final Rule – The third round of Section 1557 rulemaking expands the number of entities subject to Section 1557 rules and broadens the scope of nondiscrimination protections. This rule prohibits discrimination based on gender identity, sexual orientation, sex characteristics, and pregnancy-related conditions (including termination of pregnancy). It also specifically addresses LGBTQI+ health care nondiscrimination protections, including healthcare for transgender people. Litigation over Section 1557 has been ongoing throughout the years since the first rule was finalized in 2016.[efn_note]“The Biden Administration’s Final Rule on Section 1557 Non-Discrimination Regulations Under the ACA” KFF.org. May 15, 2024[/efn_note] Most recently, Florida’s Attorney General and the Catholic Medical Association filed suit against HHS in May 2024, seeking to overturn the 2024 rule.[efn_note]“State of Florida v. HHS” U.S. District Court, Middle District of Florida, Tampa Division. Filed May 6, 2024[/efn_note] Additional lawsuits are expected in the coming months, particularly when state law conflicts with Section 1557 requirements.[efn_note]“Eight Healthcare Provider Requirements From Updated Section 1557 Nondiscrimination Rule” McGuireWoods. May 17, 2024[/efn_note] For example, some states have enacted laws allowing medical providers to refuse to treat LGBTQI+ patients,[efn_note]“Religious Exemption Laws” Movement Advancement Project. Accessed May 30, 2024[/efn_note] or prohibiting gender-affirming care for transgender youth.[efn_note]“Bans on Best Practice Medical Care for Transgender Youth” Movement Advancement Project. Accessed May 30, 2024[/efn_note] And since Section 1557 leaves implementation up to HHS, the rules could change again under a future administration. So although the 2024 rule expands non-discrimination protections in health care, the issue is not yet settled.