On Monday, the Biden administration revived Obama-era protections against discrimination in health care based on a patient’s gender identity or sexual orientation, citing a Supreme Court decision that declared anti-LGBTQ discrimination to be a form of sex discrimination, and thus, illegal under federal law.
The protections had been rolled back by the Trump administration, which argued that sexual orientation and gender identity were not protected by federal laws prohibiting sex discrimination. The administration had also insisted that the rollback was necessary because there were not sufficient protections for health care workers, employers, and insurers, whose religious liberty might be threatened if they were forced to administer, assist in, or pay for procedures — ranging from abortions to gender confirmation surgeries — that ran counter to their personal beliefs on homosexuality or gender.
In a statement, officials with the U.S. Department of Health and Human Services announced that the agency’s Office for Civil Rights will interpret and enforce prohibitions on sex-based discrimination contained in Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972 in a way that would protect members of the LGBTQ community who are denied health care services or insurance coverage for medically necessary care.
HHS argued that the interpretation being embraced by the agency aligns with the principles that form the cornerstone of a Supreme Court decision on employment-based discrimination from last year.
“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That’s why HHS announced it will act on related reports of discrimination,” HHS Secretary Xavier Becerra said in that statement. “Fear of discrimination can lead individuals to forego care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone — including LGBTQ people — should be able to access health care, free from discrimination or interference, period.”
Over the past decade, since the passage of the Affordable Care Act, liberals and conservatives have clashed over the idea that anti-LGBTQ discrimination is inherently a form of sex discrimination, with conservatives arguing that such an idea is an overreach by an activist government. Conservatives also said that unless the robust protections for LGBTQ patients were repealed, health care workers might be forced to participate in procedures that violate their conscience, such as abortions or gender confirmation surgeries.
In 2016, the Obama administration attempted to move forward with rules establishing protections for LGBTQ patients, based on its interpretation of Section 1557 of the Affordable Care Act. However, due to various court challenges and injunctions, those protections were never allowed to go into effect.
In 2019, the Trump administration had proposed a rewrite of Section 1557 that scuttled any and all LGBTQ protections by explicitly defining the term “sex” as pertaining only to a person’s assigned sex at birth
The administration argued at the time that the rewrite was needed to remove “costly and unnecessary regulatory burdens” that were costing American taxpayers $2.9 billion over five years. That rewrite was finalized a year later, opening the door, critics argued, to permitting health care providers and insurers to deny life-saving care.
But LGBTQ advocates received a boost last year when the Supreme Court held that — at least for employment purposes — anti-LGBTQ discrimination and sex discrimination were indistinguishable.
That interpretation was bolstered by an executive order issued by President Joe Biden upon taking office in January that said LGBTQ people deserve protection against discrimination in various facets of life, including health care, and directed federal agencies to revise their rules and policies regarding sex discrimination to align with the court’s decision.
According to The Washington Post, the Biden administration is basing its more robust interpretation of health care protections for the LGBTQ community on two federal circuit court rulings and a Department of Justice opinion issued in March that have extended principles underlying the Supreme Court’s workplace discrimination ruling to apply to Title IX.
While several ongoing lawsuits are seeking to define the extent to which Title IX applies to the LGBTQ community, until those cases are resolved, HHS will enforce the law in a way that prohibits doctors, hospitals, and health care organizations that receive taxpayer dollars from denying care based on a person’s sexual orientation or gender identity.
Dr. Rachel Levine, the assistant secretary for health at HHS, and the first transgender presidential appointee to be confirmed by the U.S. Senate, emphasized that that the department, by embracing the principles first outlined by the Obama administration more than a decade ago, would be saving lives.
“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” Levine said in a statement. “No one should be discriminated against when seeking medical services because of who they are.”
The department’s announcement outraged social conservatives.
“This policy is really about forcing hospitals and medical professionals to adhere to leftist ideology regarding sexuality and gender — and in particular to provide sex-change procedures to all comers, including children,” Terry Schilling, president of the American Principles Project, which opposes the expansion of LGBTQ rights, said in a statement.
But LGBTQ advocates and allies praised the move.
Chase Strangio, the deputy director for transgender justice with the American Civil Liberties Union’s LGBTQ & HIV Project, said the Biden administration’s action “affirms what transgender people have long said: Gender-affirming care is life-saving care.”
“No one should experience discrimination when seeking health care. Health practitioners are trained to do no harm and to treat all patients fairly — when these guiding principles are ignored, patients deserve to be able to seek justice and/or accountability,” Victoria Kirby York, the deputy executive director of the National Black Justice Coalition, which advocates for the empowerment of Black LGBTQ individuals, said in a statement. “…When people know they can get away with treating others poorly, they will do so for folks they have bias against.
“Today’s announcement from the Biden-Harris Administration will save lives, force equal treatment of all patients, and increase the likelihood that LGBTQ+ people will go to the doctor when they need to instead of being prevented by fear,” Kirby York added.
“Every American deserves equal treatment under the law, including health care treatment,” Sarah Kate Ellis, the president and CEO of the LGBTQ media advocacy organization GLAAD, said in a statement. “The ability to see a doctor as your authentic self should never be blocked, made harder or put up for debate, as it is right now for transgender young people in states considering bans on life-saving healthcare for them.”
Ellis also called on Congress to pass the Equality Act, a sweeping piece of legislation that would enshrine nondiscrimination protections for LGBTQ Americans permanently into law.
“A majority of all Americans know and agree discrimination is wrong,” she said. “The Equality Act will secure comprehensive protections for LGBTQ people into law. Every Senator should be pushing to get it passed for the health and safety of every American.”
That sentiment was echoed by House Speaker Nancy Pelosi (D-Calif.) in a statement.
“Today, the Biden administration has taken essential and potentially life-saving action to affirm that all people in America have the right to quality, affordable health care — no matter who they are or whom they love. During this time of pandemic and always, it is vital that the most vulnerable have access to care, including LGBTQ Americans, who have long suffered injustice and discrimination that has left them dangerously exposed to health risks,” Pelosi said.
“The Trump administration’s decision to green-light anti-LGBTQ discrimination in health care in the middle of a pandemic was an act of senseless and staggering cruelty, made in blatant defiance of our values and a Supreme Court ruling made just a month prior,” she added. “Congressional Democrats together with the Biden administration are proud to uphold the equal right of every American to access the care that they need to pursue a life of dignity and health. We must now build on this progress and enact the House-passed Equality Act to fully ban anti-LGBTQ discrimination in our nation.”
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