Biden Proposes Rule to Reinstate Health Protections for LGBTQ+ Americans

On Monday, the White House made moves to restore protections for LGBTQ+ Americans seeking healthcare services that were struck down during the Trump Administration. The proposed rule would also cover pregnant women seeking an abortion. Under the rule, decisions regarding “pregnancy termination” are included under protections that prevent discrimination on the basis of sex. The administration already warned pharmacists that denying patients medications that are used for abortions would violate federal civil rights law.

Many states have moved to restrict access to gender-affirming healthcare for tansgender patients and reproductive health services. The new rule would help safeguard access to essential healthcare services for groups that identify as LGBTQ+.

Healthcare organizations that receive federal funding would be barred from discriminating against gender transitions and other services for transgender patients. The rule, which will be enforced by the Dept. of Health and Human Services, also includes new federal anti-discrimination language that protects a patient’s sexual orientation and gender identity.

“I think most Americans are familiar with their rights to be free from discrimination — but too often, there are some communities who don’t have that freedom to exercise their rights to access care,” said HHS Secretary Xavier Becerra. “We want to make sure that whoever you are, whatever you look like, wherever you live, however you wish to live your life, that you have access to the care that you need.”

The proposed rule would strengthen provisions in Section 1557 of the Affordable Care Act. The administration is taking executive action to protect access to abortion in lieu of getting legislation through Congress now that Roe v. Wade has been overturned. Providers and organizations that refuse to comply with the new rule may lose out on federal funding.

“We’re very delighted to be able to make this announcement today. It comes at an important time, especially after the Supreme Court’s wrongheaded decision in Dobbs,” Becerra said, referencing the Supreme Court decision that led to the death of Roe.

The rule is designed to increase access to abortion services, but it’s not clear what kind of an effect it will have in states where the procedure is now illegal.

“I think people who oppose this rule will try and construe it as a mandate for abortion. That’s just so far from the case,” said Katie Keith, director of the Health Policy and the Law Initiative at Georgetown Law’s O’Neill Institute.

HHS recently called on the public to submit comments about how the recent Supreme Court ruling has affected their healthcare, which officials will likely use to enhance the final ruling.

Allies and members of the LGBTQ+ community were ecstatic to see the White House restore federal protections for people seeking gender transitions and people that face discrimination because of their gender identity.  

“Today’s proposal restores critical protections that were undermined by the Trump Administration,” Kellan Baker, executive director and chief learning officer of the Whitman-Walker Institute, said in a statement.

The White House has also been meeting with conservatives and members of religious groups that have pushed back on the rule.  Opponents say it would force healthcare providers to perform procedures that go against their religious beliefs and allow children to begin transition genders that they might later regret.

“All we are trying to do is advocate for caution, and compassion informed by evidence and not ideology,” said officials with Genspect, an international parents’ group that has questioned the need for gender transitions.

The White House added language to help address the groups’ concerns, including protections for providers that object to certain procedures on religious or moral grounds.

Roger Severino, who led the HHS civil rights office during the Trump administration, called the ruling “a victory of sorts” for providers that do not support abortion. But he said other parts of the rule are “downright scary,” because they could be used to punish physicians who refuse to perform transition-related surgeries because of state or local laws, or because they do not believe the procedures are clinically appropriate.

“If you think they are never clinically appropriate, you’re considered a bigot by the government,” leading to a loss of federal funds, Severino said.

But members of the LGBTQ+ community have been calling on the White House to reinstate federal protections for queer and transgender Americans for months.

“Gender affirming healthcare is essential healthcare,” David Brown, the legal director of the Transgender Legal Defense & Education Fund, said in a statement last month, after a federal court ruled that a North Carolina state health plan was wrong to deny patients access to hormone replacement therapy, surgeries and other care related to gender transitions.

The changes would apply to health insurance plans that do business through the Obamacare exchanges, including Medicaid or Medicare. This is the first time the non-discrimination provisions would apply to Medicare B, which covers visits to physicians, some preventive services, and other outpatient care for those who are 65 or older, or who have disability benefits.

However, the Biden Administration is bracing for legal challenges once the new rule goes into effect.

“No doubt someone may challenge us and say that we’re not interpreting the law properly,” said Becerra. “We think we are.”

The Trump administration had also scaled back requirements that most healthcare providers post information in 15 languages and make translation services available. The new rule seeks to restore access to language assistance services.

“That’s a small one, perhaps, but it’s also very important,” Becerra said.