White House proposes strengthening transgender health protections

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A new proposal from the Biden administration would reverse Trump-era limits on health care protections against discrimination for gay and transgender people.  

The proposed rule from the Department of Health and Human Services (HHS) would strengthen ObamaCare’s rules to prohibit discrimination on the basis of sex, including on the basis of sexual orientation and gender identity, in certain health programs and activities. 

The proposal also seeks to protect from discrimination people seeking reproductive health care services, including those who have had abortions.

The move comes after former President Trump’s administration ruled to remove most of the protections that prevented health care workers from denying care to patients based on their gender identity or sexual orientation.

“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,” HHS Secretary Xavier Becerra said during a media briefing. 

“We know that in many states, communities, our transgender community are feeling like they’re being left out. This I hope will send a signal that if you are seeking health care, and you have a right to access that care, we will will protect that right against discrimination” Becerra added.

The proposed rule involves protections in Section 1557 of the Affordable Care Act that prohibit discrimination on the basis of race, color, national origin, sex, age and disability in certain health programs and activities.

Health officials said the proposal aims to align current policy with a 2020 Supreme Court decision that concluded federal laws against sex discrimination in the workplace also safeguarded gay and transgender people.

The policy proposal comes at a time when some states are looking to curtail access to gender-affirming medical care, especially in the wake of the Supreme Court’s ruling that overturned Roe v. Wade. Advocates were also concerned that the previous policies would have discouraged LGBTQ patients from seeking treatment.

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.

“Now more than ever, we must stand up for those around the country whose voices often go unheard, to let them know we stand with them and are working to ensure they can access health care free from discrimination. Today’s proposed rule is a giant step in working to ensure that goal is met,” acting HHS Office for Civil Rights Director Melanie Fontes Rainer said in a statement. 

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 Obama administration did this by expanding the health law’s definition of sex discrimination to include gender identity for the first time, but those expansions were blocked by a federal judge in 2016.

The Trump White House 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 the Supreme Court decision on workplace discrimination contradicted the new policy.

Becerra acknowledged the regulatory process takes time, and likely won’t be completed until the end of the year if there are no setbacks. That would mean the final rule would begin to be implemented next year.

“To the providers and the people covered by our programs. You are seen, you are valued, and deserve to be respected and valued in the healthcare setting. Today, we are making it clear that we’ve got your back,” said Chiquita Brooks-LaSure, administrator of the Centers for Medicare and Medicaid Services.

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