Case 1:20-cv-01630-JEB Document 75-2 Filed 08/13/21 Page 2 of 74
To: Interested Parties From: June Zeitlin, The Leadership Conference Health Care Task Force Mara Youdelman, Co-Chair, The Leadership Conference Health Care Task Force Date: June 8, 2021 Re: Section 1557 of the Affordable Care Act INTRODUCTION ensure the promises of the ACA would redound to the benefit of everyone in the U.S. regardless of race, color, national origin (including language), age, sex, and disability. After enactment of Sec. 1557, also called the Health Care Rights Law, The Leadership Conference on Civil and Human Rights led the administration to implement the law. We worked closely with the Office for Civil Rights, the White House, and others to ensure the promises of Sec. 1557 would become reality. In 2016, the Obama administration finalized long-awaited regulations implementing Sec. 1557 of the Affordable Care Act. In 2020, the Trump administration finalized new regulations drastically rewriting the Obama-era regulations application. Given the Trump Administration strongly urge the Biden-Harris Administration through the Department of Health and Human Services (HHS) and its Office for Civil Rights (OCR) to quickly draft new regulations that rescind the 2020 regulations, bring back significant portions of the 2016 regulations, and expand beyond the 2016 regulations in important ways. This memo outlines the major issues that we recommend adding to the 2016 regulations to ensure comprehensive protection against all forms of discrimination intended by Sec. 1557. One of the major issues that new regulations must address is continuing litigation challenging both the 2016 rule and the statute itself (Franciscan Alliance and Religious Sisters of Mercy). Any proposed regulation that merely rescinds the 2020 regulations and reinstates the 2016 regulations will unfortunately leave in place prohibitions on protections from discrimination on the basis of termination of pregnancy and gender identity due to a vacatur that preceded the 2020 rule changes and an injunction HHS is currently appealing. Since the challengers in these cases now seek further relief against both the 2016 rules and the statute itself, HHS must adopt a new rule that reflects the recent Supreme Court decision in Bostock v. Clayton County and other developments and responds to these challenges. definition should include pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, reproductive health decisions, sexual orientation, gender identity, gender expression, gender transition, transgender status, sex stereotypes, and sex characteristics (including intersex traits).
