Biden administration says it will enforce health care protections for people identifying as LGBTQ

HHS Mark Van Scyoc/Shutterstock

The Biden administration on Monday announced it would interpret and enforce existing law to ensure people identifying as LGBTQ were not denied access to health care.

“It is the position of the Department of Health and Human Services that everyone – including LGBTQ people - should be able to access health care, free from discrimination or interference, period,” said Xavier Becerra, Secretary of Health and Human Services (HHS), on Monday.

The law in question, Sec. 1557 of the Affordable Care Act, prohibits sex-based discrimination in health care. The Obama administration interpreted it to include protections against discrimination on the basis of sexual orientation or gender identity. This was the basis of the administration’s “transgender mandate,” ruling that people could not be denied gender-transition surgeries upon the referral of a mental health professional.

The administration did not exempt doctors who were opposed to providing the surgeries, for medical or conscience reasons.

Luke Goodrich, vice president and senior counsel at Becket, which is fighting the mandate in court, said the administration’s announcement on Monday “will punish doctors and hospitals if they won't perform harmful gender-transition procedures against their conscience and medical judgment.”

“This is bad for patients, doctors, and religious liberty,” Goodrich stated.

Catholic hospitals and health care groups sued over the transgender mandate, and two federal district judges have put an injunction on the mandate going into effect. A federal circuit court has also instructed one of the district courts to consider whether the hospitals opposed to the mandate should receive permanent relief.

“The plaintiffs in the case are religious doctors, hospitals, and clinics who joyfully serve ALL patients regardless of sex or gender identity,” Goodrich stated. “Yet the Biden Administration is fighting them in court--and threatening multi-million dollar penalties that jeopardize the millions of dollars in free and low-cost care they give to elderly, poor, and underserved rural areas.”

In its announcement, the HHS Office for Civil Rights (OCR) said it would comply with existing federal protections for religious freedom under the Religious Freedom Restoration Act. The office also said it would comply with court orders in transgender mandate cases.

However, Goodrich said that the administration says it will “comply” with these laws and rulings while it is actively fighting to overturn them in court.

The Trump administration allowed exemptions for doctors opposed to providing the surgeries, and clarified that sex discrimination did not include protections for gender identity or abortion. In August, a federal judge blocked that rule from going into effect.

In January, President Biden issued an order interpreting federal civil rights protections against sex discrimination to include sexual orientation and gender identity.

Meanwhile, the Biden administration in April filed an appeal to keep the mandate in place.

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” Becerra said on Monday.

Dr. Rachel Levine, HHS assistant secretary, stated, “No one should be discriminated against when seeking medical services because of who they are.” Levine is the first openly-transgender federal official confirmed by the Senate.

The HHS announcement was made citing the Supreme Court’s June 2020 ruling in Bostock v. Clayton County, where the court ruled that federal civil rights protections against sex-based discrimination in employment included protections on the basis of sexual orientation and gender identity.

This article was updated on May 10.

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