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Biden HHS reverses Trump-era policy limiting transgender health rights

The Department of Health and Human Services on Monday announced that it will protect against discrimination on the basis of sexual orientation and gender identity in health care, reversing a Trump-era policy.

The HHS’ Office for Civil Rights said it would interpret and enforce Section 1557 and Title IX’s prohibitions on discrimination based on sex to include discrimination on the basis of sexual orientation and discrimination on the basis of gender identity.

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Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age or disability in covered health programs or activities.

The move affirms that federal laws forbidding sex discrimination in health care also protect gay and transgender people. The Trump administration had defined “sex” to mean gender assigned at birth, thereby excluding transgender people from the law’s umbrella of protection.

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences,” HHS Secretary Xavier Becerra said Monday. “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.”

In 2020, Trump’s HHS finalized a regulation that overturned Obama-era protections for transgender people against sex discrimination in health care. That policy shift redefined gender as a person’s biological sex, whereas an Obama-era regulation defined sex as “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.”

HHS Assistant Secretary for Health Dr. Rachel Levine. 

HHS Assistant Secretary for Health Dr. Rachel Levine. 
(Joe Hermitt/The Patriot-News via AP, File)

Under the Trump policy, hospitals and insurers, on the basis of religious freedom, were able to refuse to provide services such as abortions and gender-transition procedures. But under the Obama-era federal rule, a hospital could be required to perform gender-transition procedures such as hysterectomies if the facility provided that kind of treatment for other medical conditions.

HHS warned that “discrimination in health care impacts health outcomes,” citing research which shows “one quarter of LGBTQ people who faced discrimination postponed or avoided receiving needed medical care for fear of further discrimination.”

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“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,” Assistant Secretary for Health Dr. Rachel Levine said. “No one should be discriminated against when seeking medical services because of who they are.”

“OCR will follow Supreme Court precedent and federal law, and ensure that the law’s protections extend to those individuals who are discriminated against based on sexual orientation and gender identity,” acting OCR director Robinsue Frohboese said.

Becerra said the new Biden administration policy would bring HHS into line with a landmark Supreme Court decision last year in a workplace discrimination case, which established that federal laws against sex discrimination on the job also protect gay and transgender people.

In June 2020, the Supreme Court, in Bostock v. Clayton County, Ga, held that Title VII of the Civil Rights Act of 1964’s prohibition on employment discrimination based on sex encompasses discrimination based on sexual orientation and gender identity.

The Bostock majority concluded the plain meaning “because of sex” in Title VII included discrimination because of sexual orientation and gender identity.

“Consistent with the Supreme Court’s decision in Bostock and Title IX, beginning today OCR will interpret Section 1557’s prohibition on discrimination on the basis of sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity,” HHS said in a statement.

“This interpretation will guide OCR in processing complaints and conducting investigations, but does not itself determine the outcome in any particular case or set of facts,” HHS said.

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Monday’s action also means that the HHS’ Office for Civil Rights will again investigate complaints of sex discrimination on the basis of sexual orientation and gender identity. Hospitals, clinics and other medical providers can face government sanctions for violations of the law.

Fox News’ Morgan Phillips and The Associated Press contributed to this report.

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