The Biden administration said Monday it will provide protections against discrimination in health care based on gender identity and sexual orientation, reversing a policy of its predecessor’s that had been a priority for social conservatives and had infuriated civil liberties advocates.
The shift pertains to health-care providers and other organizations that receive funding from the Department of Health and Human Services. Civil rights groups had said the Trump administration policy would allow health-care workers and institutions, as well as insurers, to deny services to transgender individuals.
The reversal is the latest step Biden officials are taking to reorient the federal government’s posture on health care, the environment and other policy areas away from the conservative cast of the Trump era, replacing it with a more liberal stance.
Senior HHS officials said in a statement Monday that a Supreme Court ruling last year — and lower-court decisions since then — gave them grounds to extend an earlier definition, adopted by the Obama administration, in an anti-discrimination section of the Affordable Care Act. That section outlaws bias “on the basis of race, color, national origin, sex, age or disability.”
Since the ACA was created in 2010, an ideological debate has raged over what forbidding discrimination based “on sex” means. Obama administration officials had interpreted it to include protections for people who are transgender. Because of court challenges and injunctions, that interpretation never went into effect.
The idea of broadening anti-discrimination safeguards to cover LGBTQ rights was vigorously opposed by religious liberties advocates and other social conservatives who were a crucial bloc in President Donald Trump’s political base.
In 2019, Trump officials in HHS’s Office for Civil Rights proposed a rewrite of the definition in a way that omitted protections based on gender in federally funded programs run by the department. The altered federal rule became final last June.
HHS said at the time that those anti-discrimination provisions apply only to “male or female as determined by biology.” It described the change as part of efforts to remove “costly and unnecessary regulatory burdens” that it said were costing American taxpayers $2.9 billion over five years.
Joe Biden, then the front-runner for the Democratic presidential nomination, called the Trump health officials’ action unconscionable and despicable. That day, he issued a statement noting that the rule came “during Pride Month, on the fourth anniversary of the deadly terrorist attack at the Pulse Nightclub that claimed 49 lives, many of them members of the LGBTQ+ community.”
Three days later, in a case unrelated to HHS’s actions, the Supreme Court ruled that a landmark 1960s federal civil rights law protects gay and transgender workers, a watershed decision for LGBTQ rights.
Still, in the final two weeks of Trump’s presidency, HHS and other agencies issued final rules, saying that anti-discrimination laws applying to employees and job applicants did not cover gender and sexual orientation.
On Jan. 20, the day President Biden took office, he issued a broad executive action saying that gay and transgender people deserve protection against discrimination in many realms of American life, including health care. The order said federal agencies should review their rules and policies that forbid sex discrimination to ensure the definitions include sexual orientation and gender identity.
Monday’s action by HHS applies to Title IX of the civil rights law, the portion the Trump administration addressed in its rule 11 months ago, not the workplace-related provisions involved in the high court’s ruling or the end-of-administration rule. The Biden administration move goes further than the never-enforced Obama rule, from 2016, by including sexual orientation as well as gender identity.
In general, it precludes discrimination by any health program or activity that receives HHS financial assistance, such as subsidies, grants or certain insurance contracts. Health plans sold through insurance marketplaces created under the ACA, for instance, are subject to the protections.
A senior HHS official, speaking on the condition of anonymity about the change because the official was not authorized to speak publicly, said the current administration does not need to rework the Trump-era rules. The official said two federal circuit courts have extended the Supreme Court’s workplace-related ruling to apply its anti-discrimination holding to Title IX.
And in March, the official said, the Justice Department issued an opinion that also extended the Supreme Court’s decision to Title IX.
With litigation still underway on the question of what “on the basis of sex” means, the official said HHS’s Office for Civil Rights would obey any injunctions now in effect in limited circumstances, plus future court decisions. Still, the official said, the department’s move Monday marks the first time that the broader anti-discrimination interpretation will largely be able to be enforced.
HHS Secretary Xavier Becerra said in the department’s statement, “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.”
Rachel Levine, HHS’s assistant secretary for health and the highest-ranking openly transgender official in U.S. government history, said, “No one should be discriminated against when seeking medical services because of who they are.”
Congressional Democrats, liberal organizations and a coalition of 15 groups representing patients with serious or chronic diseases issued statements praising the switch. Calling the move an “essential and potentially life-saving action,” House Speaker Nancy Pelosi (D-Calif.) said, “During this time of pandemic and always, it is vital that the most vulnerable have access to care.”
Chase Strangio, deputy director for transgender justice with the LGBTQ and HIV project of the American Civil Liberties Union, said the Biden administration’s action “affirms what transgender people have long said: Gender-affirming care is lifesaving care. . . . With health care for transgender youth under attack by state legislatures, this move to protect LGBTQ people from discrimination in health care is critical.”
And Omar Gonzalez-Pagan, senior attorney and health-care strategist for Lambda Legal, a group advocating on behalf of LGBTQ individuals and people with HIV, said the Biden administration “provided some needed clarity after the Trump administration did everything it could to undermine and muck up the law to target and hurt our communities, in particular transgender patients.”
Voices on the right denounced the change.
Tony Perkins, president of the antiabortion Family Research Council, said in a statement that the organization “will continue working to keep Obamacare from being used as a vehicle to advance transgender or abortion politics.” Perkins added, “Sex is not subjective; it is an objective biological reality. Now the Biden administration wants to punish medical professionals for recognizing this fact.”
Emily Kao, director of the DeVos Center for Religion and Civil Society at the Heritage Foundation, a conservative think tank, issued a statement that said, “The Biden administration’s actions are unlawful overreach, not health-care protections.” Kao said the move “needlessly and dangerously politicizes medicine and threatens the conscience rights of medical providers.”