LGBTQ+ health care protections reinstated by Biden administration
Under sweeping rules finalized Friday by the U.S. Department of Health and Human Services, government health officials, organizations receiving federal health funding and health insurers that do business through government plans must abide by the nondiscrimination standards. Officials stress the rules are about prohibiting discrimination against patients rather than compelling providers to perform procedures.
Proponents of the rules have said they would protect patients from being turned away because they are gay or trans and prohibit health insurance policies that require LGBTQ+ people to wait longer and pay more for fertility benefits. The rules also contain more broadly applicable provisions, such as requiring health providers and other recipients of federal money to inform patients of free services that provide accessibility and language assistance.
“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 focuses on Section 1557 of the Affordable Care Act, which bans health care providers from discrimination based on race, color, national origin, sex, age and disability in health programs that receive federal funding. HHS can enforce strict penalties against organizations and workers that the agency concludes broke the law — ranging from requiring additional training to kicking offenders out of federal programs. Federal officials say the rules preserve religious exemptions.
Politicians and advocacy groups have spent more than a decade arguing over how the White House should interpret the rule, particularly how it applies to LGBTQ+ and pregnant patients who could face discrimination from providers unwilling to treat them. The Obama administration issued regulations that included protections for gender identity and sex stereotyping. The Trump administration eliminated those specific protections. And the Biden administration moved in 2022 to restore and expand on the Obama-era definition by including sexual orientation as a specific protection.
The Supreme Court in 2020 also ruled, in Bostock v. Clayton County, Ga., that sex discrimination includes discrimination based on gender identity or sexual orientation, prompting some courts to block implementation of the Trump-era rules. A coalition of LGBTQ+ and other organizations suing to repeal the Trump-era rules urged the Biden administration to expedite the rules restoring protections.
LGBTQ+ activists cheered the Biden administration to finalizing the rules Friday.
“LGBTQ Americans are grateful for this step forward to combat discrimination in health care so no one is barred from lifesaving treatment,” Sarah Kate Ellis, president and CEO of the advocacy group GLAAD, said in a statement.
The fight over discrimination in health care is likely to drag on because conservatives have signaled plans to resist attempts to cement protections.
Republicans criticized the Biden administration’s proposed rule in 2022, with state attorneys general warning HHS not to “exceed its statutory authority” and signaling that they were prepared to sue over the anticipated final rule.
Conservatives also are urging a future GOP White House to reverse “the redefinition of sex to cover gender identity and sexual orientation and pregnancy to cover abortion,” Project 2025, a conservative group backed by the Heritage Foundation, wrote last year in a road map for policymakers.
The Biden administration’s interpretation of the law would create “special privileges for new classes of people, defined in ways that are highly ideological and unscientific,” Project 2025 added. The group called for HHS to instead focus on “serious cases of race, sex, and disability discrimination” such as its probe into Michigan State University over allegations former gymnastics doctor Larry Nassar assaulted students there.