Biden Prohibits Health Care Discrimination Against Transgender People

By Amy Goldstein, The Washington Post

10 May 21

he Biden administration said Monday it would provide protections against discrimination in health care based on gender identity and sexual orientation, reversing a policy of its predecessors that had been a priority for social conservatives and had infuriated civil liberties advocates.

The reversal is a victory for transgender people and undoes what had been a significant setback in the movement for LGBTQ rights.

The shift pertains to health-care providers and other organizations that receive funding from the Department of Health and Human Services. Civil rights groups had said the Trump policy would allow health-care workers and institutions, as well as insurers, to deny services to transgender individuals.

The reversal is the latest step Biden officials are taking to reorient the federal government’s posture on health care, the environment and other policy areas away from the conservative cast of the Trump era, replacing it with a more progressive stance.

Senior HHS officials said in a statement Monday that a Supreme Court ruling last year — and lower court decisions since then — gave them grounds to extend an earlier definition, adopted by the Obama administration, in an anti-discrimination section of the Affordable Care Act. That section outlaws bias “on the basis of race, color, national origin, sex, age or disability.”

Since the ACA was created in 2010, an ideological debate has raged over what forbidding discrimination based “on sex” means. Obama officials had interpreted it to include protections for people who are transgender. Because of court challenges and injunctions, the Obama interpretation never went into effect.

The idea of broadening anti-discrimination safeguards to cover LGBTQ rights was vigorously opposed by religious liberties advocates and other social conservatives who were a crucial bloc in former president Donald Trump’s political base.

In 2019, Trump officials in HHS’s Office for Civil Rights proposed a rewrite of the definition in a way that omitted protections based on gender and sexual orientation in federally funded programs run by the department. The altered federal rule became final last June.

HHS said at the time that those anti-discrimination provisions apply only to “male or female as determined by biology.” It described the change as part of efforts to remove “costly and unnecessary regulatory burdens” that it said were costing American taxpayers $2.9 billion over five years.

President Biden, then the front-runner for the Democratic presidential nomination, called the Trump health officials’ action unconscionable and despicable. That day, he issued a statement noting that the rule came “during Pride Month, on the fourth anniversary of the deadly terrorist attack at the Pulse Nightclub that claimed 49 lives, many of them members of the LGBTQ+ community.”

Three days later, in a case unrelated to HHS’s actions, the Supreme Court ruled that a landmark 1960s federal civil rights law protects gay and transgender workers, a watershed decision for ­LGBTQ rights.

Still, in the final two weeks of Trump’s presidency, HHS and other agencies issued final rules, saying that anti-discrimination laws applying to employees and job applicants did not cover gender and sexual orientation.

On Jan. 20, the day Biden took office, he issued a broad executive action saying that gay and transgender people deserve protection against discrimination in many realms of American life, including health care. The order said federal agencies should review their rules and policies that forbid sex discrimination to ensure the definitions include sexual orientation and gender identity.

Monday’s action by HHS applies to Title IX of civil rights law, the portion the Trump administration addressed in its rule 11 months ago, not the workplace-related provisions involved in the high court’s ruling or the end-of-administration rule. The Biden administration move goes further than the never-enforced Obama rule, from 2016, by including sexual orientation as well as gender identity.

A senior HHS official, speaking on the condition of anonymity about the change because the official was not authorized to speak publicly, said the current administration does not need to rework the Trump-era rules. The official said two federal circuit courts have extended the Supreme Court’s workplace-related ruling to apply its anti-discrimination holding to Title IX.

And in March, the official said, the Department of Justice issued an opinion that also extended the Supreme Court’s decision to Title IX.

With litigation still underway on the question of what “on the basis of sex” means, the official said HHS’s Office for Civil Rights would obey any injunctions now in effect in limited circumstances, plus future court decisions. Still, the official said, the department’s move Monday marks the first time that the broader anti-discrimination interpretation will largely be able to be enforced.

HHS Secretary Xavier Becerra said in the department’s statement,“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.”

Rachel Levine, HHS’s assistant secretary for health and the highest-ranking openly transgender official in U.S. government history, said, “No one should be discriminated against when seeking medical services because of who they are.”

Progressive groups swiftly praised the switch.

Chase Strangio, deputy director for transgender justice with the LGBTQ and HIV project of the American Civil Liberties Union, said the Biden administration’s action “affirms what transgender people have long said: Gender-affirming care is life-saving care. . . . With health care for transgender youth under attack by state legislatures, this move to protect LGBTQ people from discrimination in health care is critical.”

Voices on the right denounced the change.

Terry Schilling, president of the American Principles Project, a conservative organization that advocates for the family and opposes transgender rights, called the move “a travesty” and said it must be opposed.

“This policy is really about forcing hospitals and medical professionals to adhere to leftist ideology regarding sexuality and gender — and in particular to provide sex-change procedures to all comers, including children,” Schilling said.