Biden Administration to Enforce LGBTQ Healthcare Protections

Health and Human Services Secretary Xavier Becerra said the Supreme Court "has made clear that people have a right not to be discriminated against..."
Reuters/Greg Nash

In a departure from the Trump administration, President Joe Biden’s Department of Health and Human Services (HHS) will recognize healthcare protections for LGBTQ people.

HHS will interpret Section 1557 of the Affordable Care Act — which bans discrimination in healthcare settings — to include sexual orientation and gender identity within the definition of sex discrimination, the agency announced on May 10. The Trump administration had finalized a rule last year aimed at scrapping the Obama-era provision of the Affordable Care Act that included gender identity under the definition of sex discrimination.

In the announcement, the Biden administration cited last June’s Bostock v. Clayton County Supreme Court ruling, which stipulated that LGBTQ workers are covered under the definition of sex Title VII of the 1964 Civil Rights Act.

“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,” HHS Secretary Xavier Becerra said in a written statement. “That’s why today HHS announced it will act on related reports of discrimination.”

Becerra added, “Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. 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.”

HHS, which welcomed out trans Assistant Secretary for Health Rachel Levine earlier this year, is the latest agency to take action against Trump-era policies impacting LGBTQ folks. In January, Biden signed an executive order directing federal agencies to enforce Bostock v. Clayton County Supreme Court ruling and broadly interpret federal sex discrimination laws.

Advocates and groups met the latest move with praise, including the Human Rights Campaign, which sued the Trump administration on behalf of New Yorkers Tanya Asapansa-Johnson Walker and Cecilia Gentili after the previous president issued the rule targeting Obamacare protections.

“LGBTQ people undeniably deserve access to the health care they need, and the Biden administration’s decision to enforce these non-discrimination protections will ensure no hospitals, clinics, or other federally-funded health care program can deny someone care simply because of who they are,” Human Rights Campaign president Alphonso David said in a written statement.

Lambda Legal, which also challenged the Trump administration’s efforts to unravel healthcare protections, said the Biden administration “provided some needed clarity,” though the group also pushed the president to take further action.

“The significant step taken today is just one step in what is a long road to undo the undermining of health care protections for all people under the Trump administration,” said Omar Gonzalez-Pagan, a senior attorney and health care strategist for Lambda Legal.

Amida Care, a not-for-profit health plan specializing in serving New Yorkers living with HIV and those who are transgender, applauded the administration’s announcement and stressed that it would boost healthcare access. Amida Care recently conducted research showing the discrimination transgender and gender non-conforming people face in their daily lives.

“After four long years of hateful and discriminatory policies under the previous administration that targeted the transgender community, today’s announcement is an important step toward advancing equity in our nation’s health care system,” Amida Care CEO Doug Wirth said in a written statement. “Discrimination has dire consequences, as transgender people face higher rates of HIV and are less likely to be virally suppressed compared to other populations. We can’t end the HIV/AIDS epidemic without gender-affirming health care.”

Michael Adams, who heads up SAGE — a national organization dedicated to LGBTQ seniors — also commended the Biden administration and underscored the need for the Equality Act, a federal bill that would build on the protections implemented through the Bostock ruling.

“These protections are critical to the health and well-being of millions of LGBT elders across the country.” Adams said in a written statement. “While this is an important step forward, we must urge the Senate to take action and make the Equality Act the law of the land. LGBT elders have already waited too long for the broader non-discrimination protections that the Equality Act affords.”

Levine, who formerly served as secretary of the Pennsylvania Department of Health, said the healthcare protections remove a key barrier for folks who might otherwise be hesitant to go to the doctor due to fear of 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,” Levin said in a written statement. “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.”

Victoria Kirby York, the deputy executive director of the National Black Justice Coalition, echoed Levine’s point and insisted that the administration’s announcement “will save lives.”

“As a Black same gender loving woman, I know too often the experience of going to the doctor only to not have my pain or symptoms listened to, to be forced to take unneeded pregnancy tests, and being told I don’t need to come back to an office when my symptoms have still not been properly addressed,” York said in a written statement. “When people know they can get away with treating others poorly – they will do so for folks they have bias against. Today’s announcement from the Biden/Harris Administration will save lives, force equal treatment of all patients, and increase the likelihood that LGBTQ+ people will go to the doctor when they need to instead of being prevented by fear.”

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