New Obamacare Rule Prohibits ‘Sexual Stereotyping’ – People Can Be ‘Male, Female, Neither, or a Combination of Male and Female’

By Penny Starr | June 23, 2016 | 3:23 PM EDT

(AP Photo)

(CNSNews.com) – Health and Human Services Secretary Sylvia Burwell cited a new rule added to the Obamacare law to prevent discrimination, including “sexual stereotyping,” as one of the Obama administration’s successes in advancing homosexual rights.

“We took a major step just last month in the final rule of Section 1557 of the Affordable Care Act,” Burwell said at an event on June 9 at the agency in Washington, D.C., to mark Gay Pride Month.

The new final rule – which goes into effect on July 18 and was issued by HHS’s Office of Civil Rights – addresses three types of discrimination – those based on disabilities, persons with limited English proficiency, and discrimination “based on sex.”

Patricia Dean, a partner in the Holland & Hart law firm in Washington, D.C., analyzed the portion of the 99-page regulation that is focused on sex discrimination, including gender identity and sexual stereotyping.

Dean explained the regulation as follows:

“The final rules define ‘gender identity’ as an individual's internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual's sex assigned at birth,” Dean wrote in the analysis posted on the law firm’s website on June 8.

“A ‘transgender individual’ is an individual whose gender identity is different from the sex assigned to that person at birth,” Dean wrote. “In defining what includes ‘sex stereotyping,’ the new rules reflect the Supreme Court's holding in Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989) that stereotypical notions of appropriate behavior, appearance, or mannerisms for each gender constitutes sex discrimination.

“The new rules thus define ‘sex stereotypes’ as stereotypical notions of masculinity or femininity, including expectations of how individuals represent or communicate their gender to others, such as behavior, clothing, hairstyles, activities, voice, mannerisms, or body characteristics,” Dean wrote. “Stereotypes can include the expectation that individuals will consistently identify with only one gender and that they will act in conformity with the gender-related expressions stereotypically associated with the gender.”

Dean called the rule “the first federal civil rights law to prohibit discrimination ‘on the basis of sex,’” including gender identity and sex stereotyping in health care programs.

The rule stated: "Sex stereotypes can also include a belief that gender can only be binary and thus that individuals cannot have a gender identity other than male or female. OCR [Office of Civil Rights] recognizes that an individual's gender identity involves the interrelationship between an individual's biology, gender, internal sense of self and gender expression related to the perception; thus, the gender identity spectrum includes an array of possible gender identities beyond male and female."

In her analysis, Dean also cited examples of how enforcement of the rule would apply, including the case a transgender individual who “alleged that a Colorado wellness program denied coverage of her mammogram because she transitioned from male-to-female rather than female-to-male.

“The wellness program was funded primarily by the National Breast and Cervical Cancer Early Detection Program, administered by the CDC. Under the program, CDC's position was to cover only individuals who were genetically female. After OCR's investigation, CDC issued guidance clarifying that recipients of CDC grants may cover mammogram services for transgender women who have taken or are taking hormones.”

Another investigation by the OCR occurred when a man complained that the transportation company that gave him a ride to his doctor’s appointment criticized him for his “feminine gender expression.” The company agreed to train its staff on “how to avoid sexual stereotyping and the usage of appropriate terminology.”

The rule also requires businesses with 15 or more employees that use Obamacare to have a designated individual with the responsibility to comply with anti-discrimination efforts and to have “grievance procedures” in place.