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Biden restores transgender health protections in latest reversal of Trump

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The Biden administration said Monday that it will protect gay and transgender people against sex discrimination in health care — the latest reversal of Trump-era policies that sought to limit transgender rights.

The action, announced by the U.S. Department of Health and Human Services, cited last year’s Supreme Court ruling affirming that federal laws forbidding sex discrimination in the workplace also protect gay and transgender people.

“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.

In January, shortly after President Biden took office, the Justice Department issued a directive revoking a 22-page memorandum released by a Trump appointee that had argued that the high court’s decision did not apply to health care.

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences,” Becerra said Monday. “Everyone — including LGBTQ people — should be able to access health care, free from discrimination or interference, period.”

According to Gallup, 4.5 percent of the U.S. population identifies as lesbian, gay, bisexual or transgender. And more than 1.5 million Americans identify as transgender, per UCLA’s Williams Institute.

Demonstrators carry rainbow flags past the White House
Demonstrators carry rainbow flags past the White House during a rally for LGBTQ rights in 2017. (Zach Gibson/Getty Images)

The move essentially restores an Obama-era policy established under the Affordable Care Act that prohibited discrimination “on the basis of race, color, national origin, sex, age or disability.”

The Trump administration had sought to define “sex” as applicable only to “male or female as determined by biology.”

Monday’s action means that the HHS Office for Civil Rights will “again investigate complaints of sex discrimination on the basis of sexual orientation and gender identity,” the Associated Press noted. “Hospitals, clinics and other medical providers can face government sanctions for violations of the law.”

The HHS order follows a reversal from Biden’s Department of Housing and Urban Development nixing a Trump-era proposal that if enacted would have allowed taxpayer-funded homeless shelters to deny access to transgender people.

“Transgender and gender non-conforming people report more instances of housing instability and homelessness than cisgender people,” HUD Secretary Marcia Fudge said in a statement last month. “Today, we are taking a critical step in affirming HUD’s commitment that no person be denied access to housing or other critical services because of their gender identity.”

Biden began reversing his predecessor’s transgender policies during his first week in office, signing an executive order calling on the military to reverse a ban on transgender troops.

“What I’m doing is enabling all qualified Americans to serve their country in uniform,” Biden said when signing the executive order on Jan. 25.

President Biden, wearing a black face mask, signs an exectutive order at a desk
President Biden signs an executive order on Jan. 25 repealing former President Donald Trump’s ban on transgender people serving in the military. (Kevin Lamarque/Reuters)

Until a 2016 change by the Obama administration, service members could be dismissed for being openly transgender. Trump surprised the Pentagon by announcing the ban and reversing the Obama policy via a July 2017 tweet, writing that the military “will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.”

After the Pentagon scrambled to draft policy language to enact Trump’s tweet, the Supreme Court allowed the ban to go into effect in early 2019 despite military leaders stating there was no evidence that the presence of transgender troops had a negative effect on discipline, morale or unit readiness. Estimates on the number of trans troops in the military range from a few thousand to about 14,700.

Trump also nominated Mark Green to be secretary of the Army, but Green withdrew his name from consideration after a series of controversial statements surfaced, including one asserting that transgender people had a “disease” and were comparable to ISIS militants.

By the end of this past March, the Pentagon announced it had followed through on Biden’s order, stating that troops could serve under their self-identified gender and that the military would offer gender transition treatments. A 2019 analysis by PBS found that transgender care accounted for less than 1 percent of the military’s health budget.

“The United States military is the greatest fighting force on the planet because we are composed of an all-volunteer team willing to step up and defend the rights and freedoms of all Americans,” Secretary of Defense Lloyd Austin said in a statement regarding the new policies. “We will remain the best and most capable team because we avail ourselves of the best possible talent that America has to offer, regardless of gender identity.”

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