Biden administration strengthens healthcare protections for LGBTQ+ Americans

LGBTQ+ Americans now have more protections against discrimination when seeking medical care, whether from hospitals, doctors, Medicaid programs and health insurance plans, according to a new rule released Friday by the Biden administration.

LGBTQ+ advocates have been waiting for these protections to be finalized for several years, since the administration said in 2021 that it would interpret Supreme Court precedent to expand nondiscrimination protections under the Affordable Care Act (ACA).

The new regulation undoes regulations under the Trump administration that excluded transgender people from nondiscrimination protections in the ACA and expands Obama-era protections for LGBTQ+ people. The language is broader than the Biden administration’s initial policy proposal in that it refers less frequently and less explicitly to sexual orientation and gender identity, while laying the groundwork to protect against LGBTQ+ discrimination. Possible exemptions for religious groups are also more easily obtained under the new rules, although not as extensive as they could have been.

Julianna Gonen, director of federal policy at the National Center for Lesbian Rights, wants LGBTQ+ Americans to know that they don’t have to accept mistreatment in doctor’s offices, a phenomenon that many queer and trans people face on a daily basis. The law is on their side, he said, even though they live in a red state with hostile policies.

Gonen has seen how some LGBTQ+ people feel resigned to discrimination in healthcare settings. At a 2018 rural community meeting in North Dakota, a same-sex couple, one of whom was transgender, told the group that a doctor’s office had turned them away and told them we don’t treat people like you here.

I was surprised to hear this and pointed out that this treatment is illegal. But these people didn’t know that. They thought that because they lived in a red state, that was what they had to live with, he said. The enforcement of these regulations will be so important because of these experiences, Gonen said; these laws must be present and LGBTQ+ people must be aware of their protections.

The protection exists in the Affordable Care Act, but it’s really helpful and important that the regulations clarify who is covered. Because the Economic Care Act says that you cannot discriminate in health care based on sex. And we know, because of how federal law has evolved, that includes sexual orientation and gender identity, he said. Gonen joined other LGBTQ+ policy experts in conversations with the Department of Health and Human Services (HHS) during the final rulemaking process of the new regulations.

The rule issued Friday by the Biden administration refers to Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination on the basis of race, color, national origin, sex, age or disability by health programs that they receive federal funding. The basis on which the Biden administration is issuing this rule is Bostock v. Clayton County, the 2020 case in which the Supreme Court found that discrimination based on sexual orientation and gender identity is sex-based discrimination prohibited by the Civil Rights Act of 1964. .

Major advocacy groups, including the Human Rights Campaign (HRC), the nation’s largest LGBTQ+ organization, applauded the final version of the regulations released Friday. However, HRC criticized the Biden administration for misinterpreting how the ACA’s nondiscrimination protections interact with the Religious Freedom Restoration Act.

The new rule ignores that the government has a compelling interest in eradicating discrimination in health care and that the only way to end discrimination is to prohibit denial of care and other forms of discrimination, it said. say the HRC in a statement, noting that the health care entities will be able to apply a temporary exemption or guarantee of an exemption from the non-discrimination policy, based on religious beliefs. This is a new addition to the policy, compared to the 2022 proposal of the Biden administrations.

However, the final rule does not include a religious exemption from Title IX which is a significant victory for LGBTQ+ advocates. That exception would have allowed educational institutions and other entities controlled by religious organizations to heed nondiscrimination requirements, an outcome the Biden administration wanted to avoid.

The Title IX statute provides that nondiscrimination requirements shall not apply to an educational institution controlled by a religious organization to the extent such application is inconsistent with that organization’s religious principles. Looking for the best way to address religious objections to the new rule, of which there were many, HHS came up with the process of temporary waivers and a longer appeals process.

During the final stages of the rulemaking process in April, the HHS Office for Civil Rights met with attorneys and policy experts from LGBTQ+ rights groups, the Human Rights Campaign, Lambda Legal, the National Center for Transgender Equality and the National Center for Lesbian Rights. , as well as with DC-based LGBTQ+ healthcare provider Whitman-Walker.

HHS staff also met in April with the Center for Christian Virtue and Partners for Ethical Care, two nonprofit groups that lobby against access to gender affirmation for women. transgender people, especially trans youth. The Heritage Foundation, a conservative think tank that has shaped the GOP agenda for decades, met with HHS staff earlier in the rulemaking process to push for expanding protections against discrimination under the ACA.

Ultimately, the regulations being finalized will make it easier for LGBTQ+ people to sue if they are mistreated in health care settings, said Gonen and Lindsey Dawson, director of LGBTQ health policy at KFF, a nonpartisan organization that studies health care policy. . The United States District Court for the Southern District of California and certain other courts, have previously found that the ACA prohibits health care discrimination against LGBTQ+ people but having a clearly defined rule by the federal government adds significant weight.

When individual courts and individual cases decide, you can end up with a patchwork of rights and protections, Dawson said. But the interpretation of the statute through the regulations is much broader and more far-reaching, and affects the population as a whole.

The ACA’s nondiscrimination protections are there as long as a court interprets the statute the right way, Gonen said, and further consolidating federal regulations is helpful, he said. The National Center for Lesbian Rights is already challenging a number of bans on gender-affirming care on the basis of section 1557 of the ACA, noting that having a federal regulation supporting that argument will only make its cases are stronger.

Even if former President Donald Trump were to take office again and cut LGBTQ+ health care protections once again, courts could still continue to find that the ACA includes nondiscrimination protections for LGBTQ+ people, he said dawson That’s because while the implementation and interpretation of nondiscrimination protections under the ACA has continually evolved under the Obama, Trump and Biden administrations, those implementations don’t change the text of the law itself, he said.

As the Biden administration noted in its initial policy proposal in 2022, multiple court challenges have been issued against HHS’s interpretation of Bostock. As Republicans and conservative groups promise lawsuits over the administration’s new Title IX rules to protect LGBTQ+ students and survivors of sexual violence, more legal challenges may be imminent.

The new federal regulations come at a time when LGBTQ+ Americans who are already vulnerable in the doctor’s office have faced an onslaught of restrictive state policies. Ten states have passed religious exemption laws that allow medical professionals and therapists to refuse to see LGBTQ+ patients, according to the Movement Advancement Project, which tracks LGBTQ+ policy. Six of those state laws were passed in the past four years.

Arkansas and Mississippi explicitly allow private insurers to refuse to cover gender-affirming care, according to the project advancing the movement. Twenty-three states ban gender-affirming care for transgender youth, and one state, Arizona, bans surgery for trans youth. In five of these states, it is a crime for medical professionals to provide gender-affirming care to minors. Lawsuits in several states have resulted in gender-affirming care bans being blocked in court.

Kellan Baker, executive director of Whitman-Walker, said in a statement that when combined with strong enforcement, the finalized rule will help dismantle healthcare barriers for LGBTQ+ people across the country.

At a time when state legislatures are stripping transgender people of their right to basic health care, we’re glad to see the Biden-Harris administration take a strong stand on the vital need for access to inclusive health care for everyone, he said. Baker joined other LGBTQ+ policy experts in conversations with the HHS during the rulemaking process.

Research shows that LGBTQ+ people commonly face discrimination when receiving medical care. A recent KFF survey found that despite having overall positive experiences with health care providers, LGBTQ+ adults were twice as likely as non-LGBTQ+ adults to say they were treated unfairly or disrespectfully by part of a doctor or health worker.

Of those adults who said they were abused, 61 percent said a medical provider suggested they were to blame for a health problem, ignored direct questions, refused to prescribe pain medication, or assumed something about them, according to an NBC News report on the KFF Poll.

The new regulations will take effect 60 days after they are published in the Federal Register on May 6, except for provisions requiring changes to private health insurance plans. These provisions need a calendar year after publication to take shape, which is different from a calendar year.