45 C.F.R. § 92.101

Discrimination prohibited

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(a) General. (1) Except as provided in title I of the ACA, an individual must not, on the basis of race, color, national origin, sex, age, disability, or any combination thereof, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any health program or activity operated by a covered entity.

(2) Discrimination on the basis of sex includes, but is not limited to, discrimination on the basis of:

(i) Sex characteristics, including intersex traits;

(ii) Pregnancy or related conditions;

(iii) Sexual orientation;

(iv) Gender identity; and

(v) Sex stereotypes.

(b) Specific prohibitions on discrimination. (1) In any health program or activity to which this part applies:

(i) A recipient and State Exchange must comply with the specific prohibitions on discrimination in the Department's implementing regulations for title VI, section 504, title IX, and the Age Act, found at 45 CFR parts 80, 84, 86 (subparts C and D), and 91 (subpart B), respectively. Where this paragraph (b) cross-references regulatory provisions that use the term “recipient,” the term “recipient or State Exchange” shall apply in its place. Where this paragraph (b) cross-references regulatory provisions that use the term “student,” “employee,” or “applicant,” these terms shall be replaced with “individual.”

(ii) The Department, including Federally-facilitated Exchanges, must comply with specific prohibitions on discrimination in the Department's implementing regulations for title VI, section 504, title IX, and the Age Act, found at 45 CFR parts 80, 85, 86 (subparts C and D), and 91 (subpart B), respectively. Where this paragraph (b) cross-references regulatory provisions that use the term “a recipient,” the term “the Department or a Federally-facilitated Exchange” shall apply in its place. Where this paragraph (b) cross-references regulatory provisions that use the term “student,” “employee,” or “applicant,” these terms shall be replaced with “individual.”

(2) The enumeration of specific prohibitions on discrimination in paragraph (b)(1) of this section does not limit the general applicability of the prohibition in paragraph (a) of this section.

Notes of Decisions

Cited in 8 cases (4 in the last 5 years), 2016–2024 · leading case: Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016).

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Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016). · cites it 4× “21; 45 C.F.R. § 92.101 (b)(3)(iv). 10 Private Plaintiffs’ religious beliefs also prevent them from being able to participate in, refer for, or cover elective sterilizations or abortion-related procedures.”

North Dakota, State of v. Burwell (D.N.D. 2021). · cites it 2× “at 31,469 (formerly codified at 45 C.F.R. § 92.101 (a)). HHS then defined that phrase to include “discrimination on the basis of .”

Whitman-Walker Clinic, Inc. v. U.S. Dep't of Health & Human Servs. (D.D.C. 2020). “” 45 C.F.R. § 92.101 ; see also 85 Fed. Reg.”

Hammons v. Univ. of Maryland Med. Sys. Corp. (D. Maryland 2023). “4, 2022) (to be codified at 45 C.F.R. § 92.101 ). It also states, In providing access to health programs and activities, a covered entity must not .”

Asapansa-Johnson Walker v. Azar II (E.D.N.Y 2020). “at 54,218 (to be codified at 45 C.F.R. § 92.101 (a)). Another defined discrimination “on the basis of sex” to include discrimination “on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex…”

Ohio Nurses Ass'n/AFT, AFL-CIO v. Ashtabula Cnty. Med. Ctr. (N.D. Ohio 2020). “Plaintiffs cite to 45 CFR 92.101(b)(3)(iii) which reads: In determining the site or location of a facility, a covered entity may not make selections that have the effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any…”

Am. Coll. of Pediatricians v. Becerra (E.D. Tenn. 2022). “at 31,470 (formerly codified at 45 C.F.R. § 92.101 ). An additional provision specifically requires medical providers to treat patients consistent with their gender identity and to allow equal access to gendered medical services regardless of an individual’s sex assigned at…”

State Of Texas v. Becerra (E.D. Tex. 2024). “112; §§ 45 C.F.R. 92.101, 92.206, 92.207, 92.208, 147.”

— 45 C.F.R. § 92.101(b)(3)(iii) — 1 case

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