Reversing Trump, Biden’s HHS restores transgender health protections

The Biden administration said Monday it will prohibit health care discrimination based on sexual orientation and gender identity, reversing Trump-era policy that defined sex as a gender at birth but enraged gay-and-transgender advocates who feared patients would be denied care.

The rule change, which will cheer civil-liberties groups and upset social conservatives, applies to health care providers and other entities that receive funding from the Department of Health and Human Services.

“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,” Health Secretary Xavier Becerra said.

Rachel Levine, assistant secretary for health and the highest-ranking U.S. official who is transgender, said: “No one should be discriminated against when seeking medical services because of who they are.”  

The HHS Office for Civil Rights will investigate complaints of bias that appear to violate the new rule.

The move hinges on a part of the 2010 Affordable Care Act that prohibits discrimination “on the basis of race, color, national origin, sex, age or disability.”

The Obama administration issued regulations that said laws barring health care discrimination on the basis of sex should include gender identity.

Trump officials rewrote them, saying “when Congress prohibited sex discrimination, it did so according to the plain meaning of the term.” They said simplifying the rule would reduce costly regulatory burdens, though LGBT advocates feared transgender patients would be denied care.

President Biden’s health department said it based its decision on a Supreme Court ruling in 2020 that said a prohibition on employment discrimination based on sex should include discrimination based on sexual orientation and gender identity.

“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,” Mr. Becerra said. “That’s why today HHS announced it will act on related reports of discrimination.”

Trump officials had argued the Supreme Court tackled employment issues that were separate from health care issues.


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