On May 13th, the U.S. Department of Health and Human Services (HHS) issued a 362-page rule on the Obamacare/Affordable Care Act’s Section 1557, the provision of the law which bans sex discrimination in health care, which included the statement: “… the prohibition on sex discrimination extends to discrimination on the basis of intersex traits or atypical sex characteristics.” This is great news as it means that discrimination against intersex Americans by federally funded health programs is illegal!

The ruling makes the U.S. the second nation that we are aware of to include  “intersex” under “sex” in a government ruling banning sex discrimination. In January, 2006, South Africa ruled that discrimination against intersex people is unfair, on a federal level, based on the grounds of sex, thanks to the work of the late, great intersex activist Sally Gross, Founder and Director of Intersex South Africa. Sally, who is featured in the excellent New Zealand documentary Intersection, became aware that the definition of sex could be amended in South Africa’s Promotion of Equality and Prevention of Unfair Discrimination Act, which governs judicial interpretation of their Equality Clause. As Sally explained:

“Going through it, I realized that… Adding two definitions—“‘sex’ includes intersex” and “‘intersex’ means a congenital   a congenital sexual differentiation which is atypical, to whatever degree”—would make intersex part of the meaning of “sex” in the Equality Clause.”

The HHS decision to include intersex people under the Affordable Health Care Act’s policies against sex discrimination was made in response to comments issued during public hearings by the legal team at InterACT (formerly Advocates for Informed Choice), an intersex youth advocacy organization. We give big thanks to InterACT for their advocacy for equitable health care for intersex people, and to the HHS for acknowledging that discrimination against intersex people is sex discrimination!