Raja Sékaran Quoted on Impact of Bostock v. Clayton County Ruling on HHS Final Rule

AIS Health

Raja Sékaran was quoted extensively in the AIS Health article, “Supreme Court’s Ruling on LGBTQ+ May Supersede HHS Final Rule.” The article examines how the U.S. Supreme Court’s June 15, 2020 ruling on LGBTQ+ workforce protections in Bostock v. Clayton County, Georgia “could supersede a recently finalized rule by HHS's Office for Civil Rights (OCR) that stripped gender identity protections from anti-discrimination provisions in the Affordable Care Act (ACA).” In its ruling, the Court held that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation or gender identity.

Commenting on the decision, Raja said, “The Court is saying an employment decision based on sexual orientation or identification cannot be applied ‘but for’ the employee’s biological sex. Granted, this is a relatively subtle point but is nonetheless the one on which the Court’s decision turns.”

He added, “In contrast, there is no such subtlety in the Trump Administration’s [final rule] announcement.…In 2016, the Obama administration interpreted sex discrimination under the ACA to include discrimination based on gender identity. Last Friday, [HHS] reversed that position… It is hard to see how this new final rule can stand in the wake of Bostock because upon application it invariably would fail the ‘but for’ test.”

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