Transgender and other LGBTQ people would again be protected from discrimination in health care under a proposed regulation by the Biden administration announced Monday.
The proposed rule (RIN 0945-AA17) would restore gender identity and sexual orientation as protections against discrimination under Section 1557 of the Affordable Care Act, reversing a Trump-era regulation. The Department of Health and Human Services, Office for Civil Rights enforces Section 1557, which prohibits discrimination on the basis of race, color, national origin, sex, age, or disability by entities that primarily provide health care and receive federal funds .
The move comes as several states have approved laws ban gender-affirming care for transgender children, which advocates say could lead to prejudice and harm. Additionally, Texas has implemented a policy to investigate families for child abuse if they are suspected of seeking such care.
The new rule would enforce these provisions for health insurance plans that do business through Medicare, Medicaid, or the Obamacare exchanges, including care provided under Medicare Part B, such as from a doctor’s office. The Obama administration considered that the definition of “health care program” includes health plans, a decision that was reversed by the Trump administration in its 2020 rule.
“We want to make sure that whoever you are, whatever you look like, wherever you live, however you want to live your life, you have access to the care you need so that your decisions are based on what you and your health-The provider and your doctor or the person you rely on for medical decisions is available so you can access the care you need,” HHS Secretary Xavier Becerra said in a call with reporters Monday. “We believe this will restore and strengthen civil rights protections for patients and consumers across the country.”
Interpreting the word ‘sex’
The Biden administration announced in May 2021 that it would interpret “sex” in the Affordable Care Act to include gender identity in light of the US Supreme Court’s decision in Bostock v. Clayton Countywhich held that LGBTQ people are protected from discrimination under Title VII of the Civil Rights Act of 1964.
Regulations from both the Obama administration and the Trump administration implementing Section 1557 are still in place. tied In the court. Those court cases found that the word “sex” could not be interpreted to include gender identity in the regulations.
“Surely someone can challenge us and say that we are not interpreting the law correctly. We think so, it has taken us quite a long time,” Becerra said.
The proposed rule also includes a provision on religion and conscience in response to feedback from the health care industry and advocates, OCR Acting Director Melanie Fontes Rainer said during the call. Previous 1557 regulations have not addressed religious and conscience exceptions in the rule, though the Trump administration has finalized numerous rules on the subject.
Anyone who faces discrimination for a pregnancy or related conditions, including “termination of pregnancy,” would also be protected by the rule. This comes just weeks after the US Supreme Court delegated abortion rights to the states.
Protections against discrimination would also apply to telehealth services and algorithms used to support clinical decisions, according to the rule.
Clarifying that Medicare Part B is covered by this statute is trying to ensure that “the rules are consistent and simple,” Centers for Medicare & Medicaid Services Administrator Chiquita Brooks-LaSure told reporters. “This really makes sure that the protections that 1557 provides really apply much more broadly across all of our programs.”
HHS will receive comments for 60 days after the rule’s publication in the Federal Register. Becerra said HHS wants to move as quickly as possible and hopes to finalize the rule by the end of 2022.