A proposed regulation by the Biden administration would once again protect transgender and other LGBTQ workers seeking health care services from discrimination.
The proposed new rule would reverse a Trump-era regulation by restoring gender identity and sexual orientation as categories protected from discrimination under Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination based on race, color, national origin, sex, age or disability by entities that primarily provide health care and receive federal funding.
The news comes after the U.S. Department of Health and Human Services (HHS) announced in May 2021 that its Office for Civil Rights will define sex discrimination after the U.S. Supreme Court’s ruling in Bostock v. Clayton County, which extended the federal civil rights prohibition on sex discrimination to include sexual orientation and gender identity.
“We want to make sure that whoever you are, whatever you look like, wherever you live, however you wish to live your life, that you have access to the care that you need,” said Xavier Becerra, secretary of the HHS, via Bloomberg Law.
Under the rule, it would be illegal for health care organizations that receive federal funding to discriminate against gender-affirming care. The regulation would also protect anyone facing discrimination due to a pregnancy or related conditions in light of the recent Roe v. Wade reversal.
The proposal comes as the HHS has pointed to federal civil rights laws, including portions of the ACA, to caution pharmacists about denying access to medications that can be used for abortions, according to a recent report by The Washington Post.
The HHS will solicit comments for 60 days after the rule’s publication. Becerra told reporters that the department wants to move quickly and hopes to finalize the rule in 2022.
LGBTQ Advocates Praise Proposal
The White House had been reviewing the draft rule since March 2022.
The Biden administration held meetings with conservative and religious organizations, such as the Family Research Council, who contended that reversing the Trump-era changes would force health care providers to perform procedures against their religious beliefs.
“All we are trying to do is advocate for caution and compassion informed by evidence and not ideology,” officials with Genspect, an international parents group that has questioned the need for gender transitions, wrote in April after a meeting.
But LGBTQ-rights advocates have praised the decision. Jean-Marie Navetta, director of learning and inclusion for PFLAG National, said that the rule proposal could not come at a more important time and should be celebrated.
“At a moment where we are seeing state legislatures create barriers and even criminalize affirming quality care, the proposed changes to Rule 1557 affirm health care should be available to everyone who needs it and at an equally high standard, no matter your race, disability, genderor where you’re from,” she said.
An ever-growing list of employers nationwide have developed inclusive policies for their employees in both practice and benefits. However, there are many LGBTQ workers who are not employed by such companies and who do not reap such benefits, Navetta explained.
“This [proposal] is one more step in closing the gaps to care among a population that continues to be marginalized by too many state-level governments,” she said.
White House Focusing on LGBTQ Rights
Navetta noted how LGBTQ people have seen rights granted, removed and then reinstated over the course of three administrations.
“This is because people who experience sex discrimination, including discrimination tied to their sexual orientation or gender identity, lack federal protections in public accommodations like health care,” she said. “No person, no matter their gender, should have to wonder if they’ll receive adequate care based on who occupies the White House.”
Since 2021, the federal government has championed LGBTQ rights through several moves:
- March 2021: The Department of Defense released detailed directives to formally roll back the ban on military service by transgender people.
- October 2021: The State Department announced that it would begin to allow passport applicants to use the “X” gender marker option in early 2022.
- November 2021: Biden nominated Alison Nathan to a seat on the 2nd U.S. Circuit Court of Appeals; she became the second openly lesbian woman to serve on a federal appellate court.
- June 2022: The U.S. Equal Employment Opportunity Commission announced the implementation of the opportunity to select a nonbinary “X” gender marker during the intake process for filing a charge of discrimination.
Biden has also urged Congress to pass the Equality Act, which would prohibit discrimination based on sex, sexual orientation and gender identity in employment, housing, public accommodations and other services.