US Embraces Protections for Gay and Trans Patients, Jettisoning Trump Stance

After the last administration rewrote federal sex-discrimination rules mid-pandemic to exclude transgender individuals, the Department of Health and Human Services announced a policy reversal Monday.

Protesters at a Juneteenth anti-racism rally in Oakland, Calif., last year. (Courthouse News photo / Nicholas Iovino)

WASHINGTON (CN) — Championing a provision of former President Obama’s landmark health care law, the Biden administration announced Monday that it would restore anti-discrimination protections in health care for gay and transgender patients.

While Obama had specified that gender identity was included in the federal law ban discrimination on the basis of sex, the Trump administration rolled such protections back in June 2020, saying it would interpret the word “sex” as “male or female” and “as determined by biology.”

The Obama regulation defined gender identity to include “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.”

Trump’s rollback immediately prompted numerous suits from LGBTQ advocates, 22 states and the District of Columbia. Come August, a federal judge in New York ruled that enforcement of Trump’s rule would conflict with recent Supreme Court precedent: Bostock v. Clayton County, Georgia. The justices held in Bostock that gay and transgender workers enjoy federal anti-discrimination protections, and Trump officials failed to show that health care discrimination should be considered legally distinct from employment discrimination.

Xavier Becerra, the secretary of Health and Human Services, abandoned that argument in a press release Monday, highlighting research that shows 25% of LGBTQ people who faced discrimination either postponed or avoided receiving needed medical care for fear of further discrimination.

When individuals forgo care because they fear discrimination, Becerra warmed, it “can have serious negative health consequences.”

A former congressman out of Los Angeles and attorney general for the Golden State, Becerra said the Supreme Court made it clear in its 6-3 Bostock decision that gay and transgender people have a right not to be discriminated against because of their sex in the health care system.

“Everyone — including LGBTQ people — should be able to access health care, free from discrimination or interference, period,” Becerra said.

Dr. Rachel Levine, assistant secretary for health and the first openly transgender federal official to be confirmed by the U.S. Senate, also commented on the matter Monday.

“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 health care 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.”  

Monday’s announcement means the Office for Civil Rights in Health and Human Services will again begin to investigate complaints of sex discrimination on the basis of sexual orientation and gender identity. It also means that medical providers can face government sanctions for such discrimination — including refusing to perform sex-reassignment surgery or provide hormone treatments for trans patients.

Under Obama-era rules, providers were obligated to perform gender-transition procedures if the facility could perform the surgeries to resolve other medical conditions. As many as 1.4 million American adults identify as transgender, according to 2016 data collected by the Williams Institute, a LGBT policy think tank at UCLA’s School of Law. According to Gallup, 5.6% of U.S. adults identify as lesbian, gay, bisexual or transgender as of 2020.

Chase Strangio, deputy director for Trans Justice with the American Civil Liberties Union LGBTQ & HIV Project, said the Biden administration’s return to such protections are “critical,” especially at a time when state legislatures are challenging protections for transgender youth.

“The Biden administration has affirmed what courts have said for decades: Discrimination against LGBTQ people is against the law,” Stangio said in a statement Monday. “It also affirms what transgender people have long said: Gender-affirming care is life-saving care.”

Health experts note that transgender youth are at increased risk of suicide, depression and substance abuse, with bullying becoming a more insidious problem through the proliferation of social media. The Trevor Project— a national organization providing crisis intervention and suicide prevention services to LGBTQ youth — has estimated that at least one LGBTQ person between the ages of 13–24 attempts suicide every 45 seconds in the U.S.

Obama’s 2016 protections were issued as part of section 1557 of the Affordable Care Act, which applied a host of existing civil rights laws to health care facilities that receive federal funding. In addition to prohibiting discrimination against transgender patients, the regulation also included protections against discrimination on the basis of sex stereotyping and abortion. 

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