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President Joe Biden’s administration announced Monday it will restore protections from health care discrimination on the basis of sexual orientation and gender identity.
The U.S. Department of Health and Human Services said the Office for Civil Rights will interpret discrimination prohibitions included in Title IX and Section 1557 of the Affordable Care Act — which “prohibits discrimination on the basis of race, color, national origin, sex, age or disability” in health care — to include “discrimination on the basis of sexual orientation and discrimination on the basis of gender identity.”
“The update was made in light of the U.S. Supreme Court’s decision in Bostock v. Clayton County and subsequent court decisions,” HHS says. The court ruled in that 2020 case that it is a violation of Title VII of the Civil Rights Act to fire a person simply because they are gay or transgender.
What the change means
The Associated Press reported the change means complaints of discrimination on the basis of gender identity and sexual orientation will again be subject to an Office of Civil Rights investigation.
Care providers, including hospitals and clinics, can face government sanctions for violations, per the AP.
“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,” Health and Human Services Secretary Xavier Becerra said in a statement. “That’s why today HHS announced it will act on related reports of discrimination.”
The HHS Office of Civil Rights enforces Section 1557 and protects the rights of those who “access or seek to access covered health programs or activities,” HHS says. Entities that receive federal funding are barred from discrimination on the basis of sexual orientation and gender identity.
HHS said research shows about 25% of LGBTQ people who faced discrimination postponed or avoided medical care over fears of facing more discrimination.
“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation,” Dr. Rachel Levine, assistant secretary for health at HHS, said. “All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk. No one should be discriminated against when seeking medical services because of who they are.”
Reversing a Trump-era policy
The change reverses a policy instated under Trump that excluded these protections and defined “sex” based on one’s gender assigned at birth, The Washington Post reports. Activists had said the Trump-era policy would allow providers and insurers to deny services to transgender people.
“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.”
Former President Barack Obama’s administration interpreted the Affordable Care Act’s prohibition on sex discrimination to include gay and transgender people. But the Trump administration in June 2020 finalized a change that removed protections based on gender identity and sexual orientation.
The Biden administration on Monday “essentially restored” the Obama-era policy, the AP reports.
The shift represents the administration’s latest reversal of Trump-era policies.
Previously, Biden signed an executive order lifting the Trump administration’s ban on transgender Americans serving in the military. It’s one of several executive orders related to LGBTQ rights that the president has signed since taking office.
On his first day in office, he signed an executive order directing all federal agencies to ensure “federal anti-discrimination statutes that cover sex discrimination prohibit discrimination on the basis of sexual orientation and gender identity, protecting the rights of LGBTQ+ persons” and in March established the Gender Policy Council to “advance gender equity and equality.”