Biden’s promise to safeguard gender-affirming care falls short amid red-state attacks

One year ago this month, President Biden in an executive order promised to safeguard access to gender-affirming health care for transgender Americans, charging the Department of Health and Human Services (HHS) with promoting “expanded access” to care in every state.

Today, 20 states and counting have passed laws that heavily restrict or ban gender-affirming medical care, including 17 that have done so this year. Most of these laws regulate the administration of puberty blockers, hormone therapy and surgeries to transgender minors, but measures adopted in some states, including Florida and Missouri, threaten to limit access to care for adults, too.

More than 132,000 — or 44 percent — of the nation’s transgender 13- to 17-year-olds now live in a state that has banned gender-affirming care for youth or is at risk of doing so, according to the Human Rights Campaign, a national LGBTQ rights group.

Faced with an onslaught of legislation targeting health care that is considered medically necessary by major medical organizations, LGBTQ and health advocates wonder whether the administration has done enough to make good on its promises to the community.

“I think a lot of us would really like to see the administration doing more, acknowledging that it’s hard,” said Kellan Baker, the executive director of Whitman-Walker Health in Washington, D.C., a health center specializing in LGBTQ care.

Baker acknowledged that several policies enacted under the Biden administration have been integral to advancing and protecting LGBTQ rights — and transgender rights, in particular. But additional health care protections are still needed.

That includes a long-awaited update to the Affordable Care Act’s (ACA) nondiscrimination clause, known as Section 1557, he said.

The final rule would broaden the law’s definition of sex discrimination to include discrimination that is based on sexual orientation and gender identity. It would also prohibit categorical bans on gender-affirming health care.

“It can’t come soon enough,” Baker said of the rule, which has been in the works for roughly a year.

A spokesperson for HHS said in an email the department is continuing to work on the rule but did not indicate when it might be finalized.

“HHS is committed to protecting access to health care for all, regardless of gender identity or sexual orientation, and will continue to advance and protect access to care,” the spokesperson said.

Sean Cahill, the director of health policy research at The Fenway Institute, an LGBTQ health care center in Boston, said although the increasing number of state laws restricting transgender health care is “extremely unfortunate,” there is only so much the administration can do to step in.

“I don’t blame President Biden,” he said. “I blame the people who are promoting those laws and the governors who sign those laws.”

Cahill added that the LGBTQ and health care communities have welcomed actions taken by the Department of Justice over the past year to challenge gender-affirming health care bans in court.

The department in April, for instance, filed a challenge to Tennessee’s ban on care for minors, arguing the law “denies necessary medical care to youth based solely on who they are.”

In May, Justice Department officials submitted a statement of interest in a case challenging a similar law in Kentucky, advising the court that “by denying transgender minors — and only transgender minors — access to medically necessary and appropriate care, SB 150 violates the Equal Protection Clause of the Fourteenth Amendment.”

Like Cahill, Baker commended the Justice Department’s involvement in cases against transgender health care bans but said there “should be more full-throated condemnation, from the highest levels of the Department of Justice, that this is an abuse of the law.”

“It is a weaponization of the arms of the state, and it needs to stop,” he said.