The Biden administration is bolstering health care protections against discrimination for gay and transgender people, reversing a Trump administration rule that gutted the protections.
In a wide-ranging final rule released Friday, the Department of Health and Human Services (HHS) strengthened the Affordable Care Act’s (ACA) rules that prohibit discrimination on the basis of sex, including on the basis of sexual orientation and gender identity, in certain health programs and activities.
“Today’s rule is a giant step forward for this country toward a more equitable and inclusive health care system, and means that Americans across the country now have a clear way to act on their rights against discrimination when they go to the doctor, talk with their health plan, or engage with health programs run by HHS,” HHS Secretary Xavier Becerra said in a statement.
The rule involves protections in Section 1557 of the ACA that prohibit discrimination on the basis of race, color, national origin, sex, age and disability in certain health programs and activities.
The final rule comes at a time when GOP-led states are curtailing access to gender-affirming medical care. According to health research group KFF, 24 states have enacted laws or policies to restrict or ban gender-affirming care for children.
The previous administration’s policy kept protections against discrimination based on race, color, national origin, sex, age or disability. But the then-update narrowed the definition of sex to only mean “biological sex,” cutting out transgender people from the protections.
Advocates were concerned that the previous policies would have made it easier for doctors, hospitals and insurance companies to deny care or coverage to transgender and nonbinary patients, as well as women who have had abortions.
The Biden administration made it clear in the rule that federal protections for religious freedom and conscience still apply. Those protections say health providers are not engaging in discrimination if they decline to provide abortion or any other care if it conflicts with a “sincerely-held belief.”
“Today’s rule exemplifies the Biden-Harris Administration’s ongoing commitment to health equity and patient rights,” HHS Office of Civil Rights Director Melanie Fontes Rainer said. “Traveling across the country, I have heard too many stories of people facing discrimination in their health care. The robust protections of 1557 are needed now more than ever.”
Section 1557 has been contentious since the start and has been the subject of ongoing litigation. The Obama-era rule made it illegal for doctors, hospitals and other health care workers to deny care to someone whose sexual orientation or gender identity they disapproved of.
The White House under former President Trump issued a final rule rolling back the protections in June 2020, but a day before the rule was set to go into effect, a federal judge blocked aspects of the policy and said a Supreme Court decision on workplace discrimination contradicted the new policy.
That decision concluded federal laws against sex discrimination in the workplace also safeguarded gay and transgender people.