On August 4, 2022, the Department of Health and Human Services (HHS) issued a proposed rule on Section 1557 (first finalized in May 2016) of the Affordable Care Act (ACA), which prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities. This proposal affirms that Section 1557’s prohibition on sex discrimination includes discrimination on the basis of sex stereotypes, sexual orientation, gender identity, and sex characteristics, including intersex traits.
In a comment letter, the American Society of Clinical Oncology (ASCO) expressed support for this explicit recognition in the proposed rule. In 2019, HHS issued a proposed rule removing protections against sexual orientation and gender identity discrimination from a number of regulations governing programs run by the Centers for Medicare & Medicaid Services (CMS). During this time, ASCO expressed concern that implementation of the proposed rule would substantially curtail the rights and protections of sexual and gender minority (SGM) patients and reduce the anti-discrimination requirements on health insurers and medical providers.
In an earlier comment letter to HHS, ASCO noted that the limited definitions and scope described in the 2019 proposed rule would inhibit access to equitable cancer care and adequate insurance coverage to meet the needs of SGM individuals affected by cancer. Despite these efforts, the proposal to give Section 1557 a narrower interpretation of sex was finalized in 2020.
ASCO continued to encourage HHS to maintain the 2016 definition of sex in Section 1557, which defined discrimination “on the basis of sex” to include gender identity, which would preserve the protections afforded to patients and healthcare consumers under the ACA and prohibit discrimination on the basis of sexual orientation and gender identity. The Society is pleased to see that those protections are being restored in this rule and expanded into additional CMS programs. ASCO will continue its efforts to ensure that SGM individuals have equitable access to high-quality cancer care.
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