Regulations Regarding Sexual Orientation and Gender Identity

(As of August 22, 2016)

Two Supreme Court cases, Obergefell v. Hodges and United States v. Windsor, recently changed the landscape for marriage, forcing every state in the union to provide same-sex marriage licenses. Obergefell was a publicized case, and few people were surprised by the Supreme Court's illegitimate redefinition of marriage. However, what has surprised many is the subversive attempts of government agencies to elevate sexual orientation and gender identity as protected classes in regulation, even though agencies do not have the legal authority to take such action and multiple courts have ruled sex discrimination does not include sexual orientation or gender identity.1 As summarized below, multiple federal government departments and agencies have proposed or adopted regulatory provisions that provide special protections based on sexual orientation and genderidentity.

Center for Medicare & Medicaid Services

On June 2, 2016, the Center for Medicare & Medicaid Services ("CMS") issued Proposed Decision Memo for Gender Dysphoria and Gender Reassignment Surgery (CAG-00446N) that acknowledges there is a lack of clinical studies proving gender reassignment surgery improves the health of the patient.

However, even with that acknowledgement, the Memo determined gender reassignment surgery may be covered on an individual claim basis while comments are accepted on this topic and further rulemaking continues. In addition, on June 16, 2016, CMS released a proposed rule (ID: 81 FR 39448/ RIN: 0938- AS21) that would establish explicit requirements that a hospital not discriminate on the basis of, in part, gender identity (which the rule redefines sex to include) and sexual orientation, and requiring the hospital to implement a written policy prohibiting discrimination on the basis of gender identity or sexual orientation as a condition for participation in federal health programs.

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