The Biden administration says the government will protect gay and transgender people against sex discrimination in health care. In this 2017 photo, Equality March for Unity and Pride participants march past the White House in Washington. Carolyn Kaster/AP
Gay and transgender people will be protected from discrimination in health care, the Biden administration announced Monday, effectively reversing a Trump-era rule that went into effect last year.
The announcement from the Department of Health and Human Services concerns one of the most notable parts of the Affordable Care Act — the provision in Section 1557 that prevents health care providers and insurance companies from discriminating on the basis "race, color, national origin, sex, age or disability in certain health programs and activities."
Effective immediately, the agency says it will interpret that provision to encompass discrimination against someone on the basis of their sexual orientation or gender identity in health care.
"Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences," HHS Secretary Xavier Becerra said in a statement. "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."
Officials at HHS framed the change as updating the agency's interpretation of existing law to bring it into alignment with Bostock v. Clayton County, last year's landmark decision by the U.S. Supreme Court. That ruling found that LGBTQ people are protected by the Civil Rights Act of 1964 banning discrimination on the basis of sex.
"It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex," Justice Neil Gorsuch wrote in the ruling.
That decision last June came down just a few days after the Trump administration finalized a rule removing nondiscrimination protections for LGBTQ people in health care. Though it technically took effect in August, multiple courts have since issued preliminary injunctions blocking some parts of the rule.
"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 today HHS announced it will act on related reports of discrimination," Becerra said.
HHS joins other federal agencies in implementing similar guidance after President Biden signed an executive order called "Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation" on his first day in office. The departments of Housing and Urban Development and Justice both issued memoranda earlier this year; in March, the Pentagon overturned the Trump-era rules that effectively banned transgender people from serving in the military.
Xavier Becerra, shown here in 2019, announced the update on Monday that is meant to prevent discrimination against transgender and gay people in health care. Rich Pedroncelli/AP
At HHS, the new interpretation announced Monday puts the agency in position to more aggressively investigate and enforce LBGTQ discrimination complaints.
"We are open for business," Robinsue Frohboese, acting director in the HHS Office for Civil Rights, said in an interview with NPR. "Ensuring the protections of individuals, of non-discrimination based on their gender identity and sexual orientation, is a critical part of our civil rights mission."
The Biden administration has yet to put forward a formal rule on this issue. Normally, federal agencies must follow a lengthy process for issuing new rules and regulations. The Trump administration's rule, which took effect in August, took about a year to finalize and is still technically on the books.
"This is a policy announcement by the administration to say that this is the way that they read the statute and the way that they'll enforce it — and they can begin doing that without a rule," said Valarie Blake, a law professor at West Virginia University. "But I anticipate that they'll promulgate a new rule anyway that gives a little more shape to what sex discrimination means."
Frohboese declined to say whether the agency is planning to propose a new rule, saying only that the administration is "actively considering" doing so.
The Trump-era rule was itself a reversal of an Obama-era executive action. The Trump administration had worked to define protections against sex discrimination throughout government to exclude LGBTQ people.
When that rule was finalized last year, LGBTQ people and advocates criticized the change, saying it could have a chilling effect on gay and transgender people seeking needed health care.
"Our mission as the Department of Health and Human Services is to enhance the health and well-being of all Americans, including LGBTQ individuals and everyone. Everyone needs access to health care. No one should be discriminated against in this. This change in rules and regulations will help us do that," said Dr. Rachel Levine, assistant secretary for health, who in March became the first openly transgender person to serve in a Senate-confirmed position.
Advocacy groups such as the ACLU and Lambda Legal applauded Monday's announcement but continued to push for a full rollback of the Trump administration's rule. In addition to limiting the definition of sex discrimination, the change under Trump included a number of other provisions, such as eliminating a requirement to include notice of nondiscrimination policies in multiple languages in health-related mailings and reducing the number of entities covered by the law's nondiscrimination provision.
"The significant step taken today is just one step in what is a long road to undo the undermining of health care protections for all people under the Trump administration," Omar Gonzalez-Pagan, an attorney with Lambda Legal, said in a statement.
The announcement from HHS comes as conservative state legislatures are working to enact a variety of bills targeting transgender people. Last month in Arkansas, legislators overrode Gov. Asa Hutchinson's veto to enact a new law banning doctors from providing gender-affirming medical care to transgender youth.
It was not immediately clear what legal effect the HHS announcement would have on the Arkansas legislation and other similar laws in the works across the country.
"I think that there'll need to be a significant legal analysis about how this guidance and this change in rules interacts with those laws," Levine told NPR.
In the meantime, hospitals and other health care providers in places such as Arkansas that rely heavily on federal funds may feel they are in a bind with competing legal directives about providing care to transgender youth, according to Blake.
"They have state law — with whatever penalty that might be — but breathing down their necks, they have federal regulators that can pull away their Medicare and Medicaid money," she said.
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