Historically and currently, the FEHBA prohibited discrimination in enrollment. Section 1557, which is part of the Affordable Care Act, prohibits discrimination in coverage which is a distinction with a difference. The proposed HHS rule, however, only applies to HHS funded programs. Therefore, the FEHBP falls outside the scope of this rule. HHS encourages other agencies to promulgate their own Section 1557 implementing rules.
HHS also took a cautious approach to interpreting Section 1557. The Washington Post explains that
[T]he proposed rule does not provide specifics on other key protections that advocates have sought, such as including sexual orientation as a form of sexual discrimination. Officials said they are seeking more input during the comment period that ends Nov. 6 on how best to incorporate those protections. Nor does the proposal address something that many AIDS organizations say is discriminatory — when insurance plans make it difficult for HIV/AIDS patients to get access to and afford needed medications.
Under the proposed regulation, women could not be charged more than men for insurance or services because they need prenatal or maternity care. Insurers could no longer categorically exclude coverage for gender transition services, although they would not automatically be required to provide surgery or other care. Health-care providers could not refuse to treat transgender people. Individuals would need to be given access to bathrooms consistent with their gender identity.
A final rule will be published next year.