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News Briefs: August 24, 2020

A federal court on Aug. 17 blocked HHS from enforcing its revised definition of sex discrimination in Sec. 1557, which prohibits discrimination on the basis of race, color, national origin, sex, age or disability. In the final Sec. 1557 regulation published in the Federal Register June 19,[1] HHS removed gender identity and termination of pregnancy from the definition of sex discrimination. Gender identity and termination of pregnancy were included when the Sec. 1557 regulation was first promulgated in 2016. Then HHS reversed it a few days after a landmark June 15 ruling from the U.S. Supreme Court in Bostock v. Clayton County.[2] The Supreme Court said the Civil Rights Act of 1964, which bans sex discrimination, applies to discrimination against gay and transgender people in the workplace. Now the U.S. District Court for the Eastern District of New York has ruled[3] the 2016 definition will remain in effect for now, noting that “when the Supreme Court announces a major decision, it seems a sensible thing to pause and reflect on the decision’s impact … Since HHS has been unwilling to take that path voluntarily, the Court now imposes it.” Judge Frederic Block said the stay and an injunction will remain in place “pending further order of this Court.” For the time being, providers should operate “as though Sec. 1557 bars discrimination on the basis of gender identity,” said Andrew Stevens, an attorney with Arnall Golden Gregory LLP. The revised 1557 regulation, which also dropped compliance requirements, such as taglines,[4] comes from the Affordable Care Act. Contact Stevens at drew.stevens@agg.com.

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