The rule also changes the way “gender” is interpreted under the law. “On the definition of gender identity, it accepts that gender is not a binary,” Sepper said. “It occurs on a spectrum, and folks can even not have a gender.” This is a fairly radical shift—it accepts that people might identify as something other than “male” or “female.”
But that change is also complicated, and it’s not clear that all health-care proviers are ready to implement it. Not all hospitals have non-discrimination policies, and even those that do may not necessarily mention gender identity and sexual orientation—a 2016 Human Rights Campaign study of 904 hospitals found that only 60 percent of them mentioned those factors. The HHS ruling also notes that a number of commenters were worried about their electronic-records systems and billing software, which typically “accommodate only binary gender billing codes (e.g., ‘male’ or ‘female’) and cannot accommodate descriptions of an enrollee’s gender identity.” Even the HealthCare.gov enrollment app only lets people identify as male or female, and might not necessarily be able to account for HHS’s new, broad interpretation of gender as non-binary.
The ruling is also significant for what it didn’t do. Sexual orientation is not explicitly protected as part of sex discrimination, for example. The agency did a bit of contortion on this count: If a gay man is denied services because of the way he expresses his gender, that might count as discrimination under the ruling, for example. But it’s unclear whether doctors are allowed to deny fertility treatment to a same-sex couple on the basis of their sexual orientation, for example. “Current law is mixed on whether existing Federal nondiscrimination laws prohibit discrimination on the basis of sexual orientation as a part of their prohibitions on sex discrimination,” the ruling says. While HHS stated that it opposes this kind of discrimination as a matter of policy, it was not willing to interpret the law to include sexual orientation protections and ended up with “a sort of half measure,” Sepper said.
It also did not include an exemption for religious organizations. Catholic and Baptist hospital systems will be just as liable as secular health-care providers for gender-identity discrimination if they accept federal assistance, which virtually every hospital system in the country does. While they still have some legal routes for claiming exemptions, this particular ruling doesn’t give them any additional leeway.
This almost certainly means there will be legal challenges to come. For one thing, certain state laws might come into conflict with the federal government’s interpretation of the law: Mississippi, for example, says it’s legal for any doctor to tag himself out of treatment that violates his religious belief in people’s “immutable biological sex as objectively determined by anatomy and genetics at time of birth.” Some religiously affiliated hospitals have already been accused of gender-identity-based discrimination. Last summer, for example, a transgender woman accused Medstar Georgetown, a hospital in Washington, D.C. with a “Catholic, Jesuit identity and heritage,” of denying her access to a procedure for this reason.