HHS Approves Protections for LGBTQ Health Care Bias

The Biden administration has implemented a new federal rule that strengthens civil rights protections for transgender and other LGBTQ individuals, which could potentially be challenged in court. The final rule, announced by the Department of Health and Human Services, reverses a regulation put in place during the Trump administration and reinstates discrimination protections based on gender identity and sexual orientation under Section 1557 of the Affordable Care Act.

Section 1557 prohibits discrimination in healthcare based on race, color, national origin, sex, age, or disability for entities that receive federal funding. The rule is enforced by the HHS Office for Civil Rights. According to HHS Secretary Xavier Becerra, this new rule provides Americans with a clear path to combat discrimination when seeking medical care or interacting with healthcare programs under HHS jurisdiction.

This rule comes at a time when more than 20 states have imposed restrictions or bans on gender-affirming care for children, and some states are facing legal challenges over their policies on youth gender-affirming care. The rule is also in line with the US Supreme Court’s decision in Bostock v. Clayton County in 2020, which established that LGBTQ individuals are entitled to protection against discrimination under Title VII of the Civil Rights Act of 1964.

In accordance with the Bostock decision, the Biden administration expanded the definition of “sex” in the ACA to incorporate gender identity. The new HHS rule will apply to health insurance plans operating through Medicare, Medicaid, or the Obamacare exchanges, including care provided under Medicare Part B, such as that in a doctor’s office.