HHS Prohibits Discrimination Against LGBTQ Patients

Action Reverses Trump-Era Policy

Alicia Ault

May 11, 2021

The Biden administration is reversing a Trump-era policy that allowed healthcare providers to bar services to lesbian, gay, bisexual, transgender, or queer (LGBTQ) patients.

The US Department of Health and Human Services (HHS) gave notice on Monday that it would interpret the Affordable Care Act's Section 1557 — which bars discrimination on the basis of sex — to include discrimination on the basis of sexual orientation or gender identity. The department said its position is consistent with a June 2020 US Supreme Court ruling in Bostock v. Clayton County, GA. The ruling determined that the Civil Rights Act's prohibition of employment discrimination on the basis of sex includes sexual orientation and gender identity.

"The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation," said HHS Assistant Secretary for Health Rachel Levine, MD, in a statement released Monday.

"All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk," she said. "No one should be discriminated against when seeking medical services because of who they are."

Many physician organizations applauded the decision.

"The Biden administration did the right thing by terminating a short-lived effort to allow discrimination based on gender or sexual orientation when seeking health care," said Susan R. Bailey, MD, president of the American Medical Association (AMA), in a statement.

When the Trump administration proposed in 2019 to allow providers to deny care to LGBTQ people, the AMA said in a letter to HHS that its interpretation "was contrary to the intent and the plain language of the law."

Now, said Bailey, the AMA welcomes the Biden administration's interpretation. It "is a victory for health equity and ends a dismal chapter in which a federal agency sought to remove civil rights protections," she said.

An alliance of patient groups — including the American Cancer Society, the American Cancer Society Cancer Action Network, the American Heart Association, the American Lung Association, the Epilepsy Foundation, the National Multiple Sclerosis Society, and the National Organization for Rare Disorders — also applauded the new policy. "This community already faces significant health disparities," the groups noted in a statement. People with chronic illness such as HIV and cancer "need to be able to access care quickly and without fear of discrimination," they said.

The groups had filed a friend of the court brief in a case against the Trump administration rule.

"We welcome this positive step to ensure access is preserved without hinderance as intended by the health care law," they said.

Twenty-two states and Washington, DC — led by former California Attorney General Xavier Becerra, who is now HHS secretary — sued the Trump administration in July 2020, aiming to overturn the rule.

Chase Strangio, deputy director for Trans Justice with the American Civil Liberties Union LGBTQ & HIV Project, noted that the HHS announcement was crucial in the face of efforts in multiple states to bar healthcare for transgender youth. "The Biden administration has affirmed what courts have said for decades: Discrimination against LGBTQ people is against the law. It also affirms what transgender people have long said: Gender-affirming care is life-saving care," he said in a statement.

Lambda Legal, which led another lawsuit against the Trump administration rule, said it welcomed the HHS action but noted in a statement by the organization's senior attorney, Omar Gonzalez-Pagan, that it "does not address significant aspects of the Trump-era rule that we and others have challenged in court."

The Trump rule also "limited the remedies available to people who face health disparities, limited access to health care for people with Limited English Proficiency (LEP), unlawfully incorporated religious exemptions, and dramatically reduced the number of health care entities and insurance subject to the rule, all of which today's action does not address," said Gonzalez-Pagan.

"We encourage Secretary Xavier Becerra and the Biden administration to take additional steps to ensure that all LGBTQ people are completely covered wherever and whenever they may encounter discrimination during some of the most delicate and precarious moments of their lives, when seeking health care," he said.

Alicia Ault is a Lutherville, Maryland-based freelance journalist whose work has appeared in publications including Smithsonian.com, the New York Times, and the Washington Post. You can find her on Twitter @aliciaault.

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