HHS' Office for Civil Rights on Monday banned discrimination based on sexual orientation or gender identity, overturning a Trump-era policy that ended nondiscrimination protections for LGBTQ people under the Affordable Care Act's chief anti-discrimination provision.
It's the latest development in a complicated and contentious struggle in healthcare to reconcile LGBTQ rights with religious liberty. The agency said it based the new policy on a 2020 U.S. Supreme Court decision that held an employer could not fire an individual for being gay or transgender.
"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. That's why today HHS announced it will act on related reports of discrimination," HHS 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 healthcare, free from discrimination or interference, period," he said.
The Obama administration had created similar protections for LGBTQ people. But the Trump administration threw them out last year, pointing to a decision by U.S. District Judge Reed O'Connor in Texas that found the Obama-era rules violated administrative procedure and religious liberty rules.
"HHS will (return) to the government's interpretation of sex discrimination according to the plain meaning of the word 'sex' as male or female and as determined by biology," Trump's HHS said in a statement last June.
Many providers, patient advocates and public officials opposed the Trump-era rule, arguing it would undo the social progress the healthcare industry made in recent years by allowing healthcare discrimination against LGBTQ people. They worried that providers and insurers could deny services to transgender people or charge them more for transition-related services, among other concerns.
"This move is a victory for health equity and ends a dismal chapter in which a federal agency sought to remove civil rights protections," AMA President Dr. Susan Bailey said in a statement.
According to a 2017 survey by the Center for American Progress, LGBTQ people who experienced discrimination were almost seven times more likely to say they avoided going for an office visit to avoid discrimination. In addition, about 1 in 4 LGBTQ people experienced discrimination during the previous year, with nearly 30% of transgender adults reporting that providers refused to see them due to their actual or perceived sexual orientation.
"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," HHS Assistant Secretary for Health Dr. Rachel Levine said in a statement. "No one should be discriminated against when seeking medical services because of who they are."
Levine was the first openly transgender federal official confirmed by the U.S. Senate.
HHS' new policy makes it clear that LGBTQ people can file discrimination complaints with HHS' Office for Civil rights, according to Katie Keith, principal at Keith Policy Solutions and a research professor at Georgetown University's Center on Health Insurance Reforms. It comes in the wake of an executive order from President Joe Biden that directed all federal agencies to implement the Supreme Court ruling in Bostock v. Clay County. The landmark ruling held the Civil Rights Act of 1964 barred employers from discriminating against employees "because of [an employee's] race, color, religion, sex, or national origin."
Justice Neil Gorsuch, who was nominated to the high court by former President Donald Trump, shocked many conservatives last year when he wrote the decision in Bostock v. Clay County. In the ruling, Gorsuch held true to his view that the meaning of a law is based only on its words, not its drafters' intentions.
"In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids," Gorsuch wrote.
He was joined by Chief Justice John Roberts, a conservative appointed by President George W. Bush, in a 6-3 majority opinion.
Other agencies like the Department of Justice have issued similar interpretations of federal based on the Bostock decision.
"It's not like HHS is going it alone here," Keith said in an email. "My strong assumption is that they'll proceed to new rulemaking to formalize this interpretation."
HHS said it would continue to follow the Religious Freedom Restoration Act and all related legal decisions, making it less likely the policy change will get bogged down in the courts, a problem that plagued the Trump administration.
