White House Reverses Trump Ban on LGBT Health-Care Protection

The federal government will begin enforcing protections for LGBT Americans in health care again, reversing a ban put in place by the Trump administration, the Health and Human Services Department said Monday.

The decision to do so was made in light of the Supreme Court’s finding Bostock v. Clayton County, which held that LGBT people are protected from discrimination under Title VII of the Civil Rights Act of 1964.

“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation,” Health and Human Services Secretary Xavier Becerra said in a statement.

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. 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,” he said.

Section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability by entities that primarily provide health care and receive federal funding. This notice says that the Biden administration will enforce it as the law was initially intended.

This notice doesn’t address all aspects of the Trump-era rule, including which entities are covered under the rule, protections for those with limited English proficiency, and others, said Omar Gonzalez-Pagan, an attorney with Lambda Legal, an LGBT legal and advocacy organization.

The Justice Department told a court Monday morning that the Biden administration intends to issue a proposed rule around Section 1557, but it didn’t provide a timeline for doing so, Gonzalez-Pagan said.

The Office for Civil Rights of the HHS is reviewing the 1557 regulations and “we do anticipate engaging in rulemaking under 1557,” Robinsue Frohboese, the office’s acting director, said in an interview.

“It’s important to emphasize everybody needs access to health care,” especially during Covid-19, HHS Assistant Secretary for Health Rachel Levine said in an interview. “But people also have broken bones, and they have heart disease, and they need checkups, and no one should be discriminated against when seeking medical services.”

LGBT Americans have been “so challenged by the previous interpretation from the previous administration, and this is a breath of fresh air,” Levine, the highest ranking openly transgender person in the Biden administration, said.

“This decision by the Biden administration needlessly and dangerously politicizes medicine and threatens the conscience rights of medical providers,” said Emilie Kao, director of the Heritage Foundation’s DeVos Center for Religion and Civil Society.

“The Biden administration’s actions are unlawful overreach, not health-care protections,” Kao said.

Obamacare’s anti-discrimination protections are based on Title IX, which bans discrimination in education and programs that receive federal funding, but courts typically look to Title VII when interpreting Title IX.

“It’s very logical and clear that the interpretation the Supreme Court used in Bostock is going to apply to every single federal civil rights statute that bars sex discrimination,” Alexander Chen, founding director of Harvard Law School’s LGBTQ+ Advocacy Clinic, previously told Bloomberg Law.

The HHS isn’t doing this alone but as part of the Biden administration’s government-wide implementation of Bostock, Katie Keith, a health-care policy research professor at Georgetown University, said. Other agencies have issued similar policies, and the Obama administration undertook similar efforts after the decisions in United States v. Windsor and Obergefell v. Hodges, two landmark LGBT Supreme Court decisions, she added.

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