The Biden Administration Just Issued a Rule Protecting Transgender Folks from Health Care Discrimination
Going to the doctor can be an intensely vulnerable and stressful experience for anyone. Now, imagine you went in for an appointment only for a doctor to refuse you proper care or make comments that left you feeling unwelcome or like you couldn't trust them with your health.
That's the reality for a lot of transgender and LGBTQ+ folks (and people of color, for that matter) — and especially so during the last presidential administration. Thankfully, a new policy from the U.S. Department of Health & Human Services took a major step to change that.
On Monday, the Biden administration announced that transgender and other LGBTQ+ people are now protected against health care discrimination, effective immediately. This relief comes a year after a Trump-era rule defined "sex" as the biological sex and gender assigned at birth, meaning that hospitals, doctors, and insurance companies could deny adequate care to transgender people. (Because reminder: Trans folks often identify with a gender other than their original sex at birth.)
In the new policy, the HHS clarifies that the Affordable Care Act Section 1557 bans intolerance or discrimination based on "race, color, national origin, sex (including sexual orientation and gender identity), age, or disability in covered health programs or activities." This was first instated in 2016 by the Obama administration, but the changes under Trump in 2020 significantly limited the scope of protections by defining "sex" as limited to the biological sex and gender assigned at birth.
This new change from the HHS is backed up by a landmark 6-3 Supreme Court decision, Bostock vs. Clayton County, made in June 2020, which ruled that LGBTQ+ people are federally protected against job discrimination on the basis of their gender identity and sexual orientation. The HHS says this decision also applies to health care, which led to the redefining of Section 1557.
"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," said HHS secretary Xavier Becerra in the statement from the HHS. "Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences."
For example, in a 2014 survey conducted by Lambda Legal (an LGBTQ+ legal and advocacy organization), 70 percent of trans and gender-nonconforming respondents reported instances of providers denying care, using harsh language, or blaming their sexual orientation or gender identity as the cause of an illness, and 56 percent of lesbian, gay, and bisexual respondents reported the same. (Related: I'm Black, Queer, and Polyamorous — Why Does That Matter to My Doctors?)
"Policies and laws that limit gender-affirming care can quite literally pose a threat to the well-being and even the safety of transgender people," says Anne Marie O'Melia, M.D., chief medical officer of Pathlight Mood and Anxiety Center in Towson, Maryland. "The state of the science, as evidenced by consensus expert opinions and emerging research, says that we should be expanding gender affirming surgeries, not limiting them. Not all transgender people need or want surgery, but we know that gender affirming surgery is associated with alleviating suffering for those who do want it and are able to choose it. Specifically, a recent study in JAMA Surgery found that gender affirming surgery is associated with significant decrease in psychologic distress and less suicidal thinking." (Related: What People Get Wrong About the Trans Community, According to a Trans Sex Educator)
After the announcement, President Biden tweeted: "No one should ever be denied access to health care because of their sexual orientation or gender identity. That's why today, we announced new protections from health care discrimination. To every LGBTQ+ American out there, I want you to know: the President has your back."
Supporting LGBTQ+ folks is one of the Biden administration's promises, and is outlined in their Equality Act, a bill that aims to provide consistent and explicit anti-discrimination protections for LGBTQ+ people across key areas including employment, housing, credit, education, public spaces and services, federally funded programs, and jury service, according to the Human Rights Campaign. If passed, the Equality Act would amend the 1964 Civil Rights Act to include the prevention of discrimination based on sexual orientation and gender identity.
Meanwhile, some states have recently drafted or passed their own laws that impact trans youth. In March 2021, Mississippi passed The Mississippi Fairness Act, a law that states student-athletes must participate in school sports according to their sex assigned at birth, not their gender identity. And in April, Arkansas became the first state to ban medical treatment and procedures for transgender people under the age of 18. This law, the Save Adolescents From Experimentation (SAFE) Act, warns health care providers that services such as puberty blockers, cross-sex hormones, or gender-affirming surgery could result in losing their medical license. This is important because not having access to gender-affirming health care can hugely negatively affect trans' teens physical, social, and mental health. (More here: Trans Activists Are Calling On Everyone to Protect Access to Gender-Affirming Healthcare)
How will the new definition of Section 1557 affect these state laws? It's still TBD. Biden officials told the New York Times that they're working on more regulations that specifically state which hospitals, doctors, and health insurers are affected and how. (In the meantime, if you're trans or part of the LGBTQ+ community and looking for assistance, the National Center for Transgender Equality has helpful information and resources including self-help guides, a health coverage guide, and an ID document center, says Dr. O'Melia.)
"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," said assistant secretary of health, Rachel Levine, M.D., the first openly transgender person to be confirmed by the Senate, in the HHS announcement. "No one should be discriminated against when seeking medical services because of who they are."
And, thankfully, the latest actions taken by the HHS will help make sure that's the case going forward.