Biden administration says it will enforce federal transgender health care protections, undoing controversial Trump-era reversal

The Biden administration will work to protect transgender Americans from discrimination in health care, undoing a controversial Trump-era decision to nix federal protections for members of the community, the Department of Health and Human Services announced Monday.

Citing a June 2020 Supreme Court decision that found federal civil rights law​ prohibits discrimination against gay, lesbian and transgender workers, the department said its Office for Civil Rights “will 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.”

“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.

The move comes nearly a year after the Department of Health and Human Services, then under the Trump administration, announced it would no longer enforce Section 1557 of the Affordable Care Act the same way the Obama administration did in 2016 when it said the law’s ban on sex discrimination included discrimination on the basis of gender identity. That rollback, which came during Pride Month and on the four-year anniversary of the deadly Pulse nightclub shooting, infuriated LGBTQ advocates, some of whom took the administration to court, resulting in federal judges temporarily blocking the plans to scrap the protections.

But the Biden administration’s move also comes as transgender Americans face a barrage of attacks from GOP-led states that are passing anti-trans bills, including Arkansas, which in April became the first state in the US to prohibit physicians from providing gender-affirming treatment for transgender people under the age of 18.

Dr. Rachel Levine, the assistant secretary for health and the first out transgender federal official to be confirmed by the Senate, said in the statement that “no one should be discriminated against when seeking medical services because of who they are.”

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

The American Civil Liberties Union cheered the Biden administration’s decision on Monday, with Chase Strangio, the group’s deputy director for transgender justice, saying in a statement that “with health care for transgender youth under attack by state legislatures, this move to protect LGBTQ people from discrimination in health care is critical.”

“The Biden administration has affirmed what courts have said for decades: Discrimination against LGBTQ people is against the law,” he added.

When the Trump administration announced last June that it was scrapping the protections, it said it wanted to 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,” adding: “The 2016 Rule declined to recognize sexual orientation as a protected category under the ACA, and HHS will leave that judgment undisturbed.”

Their plans were harshly criticized by LGBTQ advocates, including the ACLU, which said the move could cost lives, and the National Center for Transgender Equality, which said the Trump administration was “encouraging discrimination” with the rule change.

Some groups, including the Human Rights Campaign, took the government to court over the plans, and in August 2020, a federal judge temporarily blocked the rollback, citing the June 2020 Supreme Court decision in their ruling.

“(The) Court concludes that the proposed rules are, indeed, contrary to Bostock and, in addition, that HHS did act arbitrarily and capriciously in enacting them. Therefore, it grants plaintiffs’ application for a stay and preliminary injunction to preclude the rules from becoming operative,” US District Court Judge Frederic Block wrote in the preliminary injunction.