Biden Redefines Sex as Non-Biological in New ‘Anti-Discrimination’ Rule Change

President Joe Biden delivers his first address to a joint session of Congress at the U.S. Capitol in Washington, D,C., April 28, 2021. (Jonathan Ernst/Pool via Reuters)

The Biden administration is reversing a rule initiated by former President Donald Trump that defined “sex” as biological, in an effort to prevent “discrimination” against transgender people in health care practices, the Department of Health and Human Services announced on Monday.

The notice of enforcement, while not a binding federal rule, signals that the federal government will begin interpreting Section 1557 — the non-discrimination provision of the Patient Protection and Affordable Care Act — to include a ban on discrimination based on sexual identity, rather than simply banning discrimination based on biological sex, as the Trump administration had. The change will likely require that states, which set their own Medicaid eligibility requirements, provide gender-reassignment surgery and hormone therapy to Medicaid recipients.

“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 (SOGI). That’s why today HHS announced it will act on related reports of discrimination,” HHS Secretary Xavier Becerra said in a statement announcing the change.

Many private insurers, such as Aetna and Blue Cross Blue Shield, and managed care organizations, such as United Healthcare, already cover transition surgeries and hormone therapy, and have an incentive to comply with the Biden administration’s definition of discrimination in order to avoid expensive litigation.

Certain state governments, especially the Republican-dominated, may decide to fight the disputes in court for a number of reasons, including to control cost via a medical necessity determination and to prevent controversial medical procedures from being performed in the state.

Soon after taking office, Biden signed Executive Order 13988, which tasked federal agencies with drafting plans to better enforce sexual orientation and gender identity rights by an April 30th deadline. The HHS regulatory guidance, released Monday, coincides closely with that stipulated deadline.

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