The Biden administration has proposed a new rule that would strengthen healthcare protections for LGBTQ people as well as those seeking reproductive health care services, including those who have had abortions.
The proposal is meant to bring Section 1557 of the Affordable Care Act (also known as Obamacare), which prohibits discrimination on the basis of race, color, national origin, sex, age, and disability, in line with the Supreme Court’s 2020 decision that federal laws against workplace discrimination on the basis of sex also protect LGBTQ people.
The proposed rule would make health care discrimination against LGBTQ people a violation of federal law.
“We want to make sure that whoever you are, whatever you look like, wherever you live, however you wish to live your life, that you have access to the care that you need,” Health and Human Services Secretary Xavier Becerra said during a media briefing.
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Today, we’re proposing a rule that will help us protect your ability to access health care, free from discrimination.
At a time when we are seeing attacks on women, trans youth and their families, and health care providers, I want to make it clear: HHS has your back. pic.twitter.com/SWzsNYC3Hz
— Secretary Xavier Becerra (@SecBecerra) July 25, 2022
Bacerra also alluded to the recent spate of anti-transgender laws restricting access to gender affirming care that have been introduced across the U.S.
“We know that in many states, communities, our transgender community are feeling like they’re being left out. This I hope will send a signal that if you are seeking health care, and you have a right to access that care, we will protect that right against discrimination.”
In a statement, acting HHS Office for Civil Rights director Melanie Fontes Rainer said that it is more important than ever to let marginalized groups know that their rights to healthcare is protected. “Today’s proposed rule is a giant step in working to ensure that goal is met.”
The Obama administration interpreted Section 1557’s protections as prohibiting hospitals, insurers, and other health care entities from discriminating against transgender people, gender non-conforming people, and people who have had abortions in the past. In 2016, a federal judge blocked those expanded protections.
In 2020, the Trump administration has tried to roll back that interpretation of the law, announcing a new rule that defined “discrimination on the basis of sex” as “sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.” That rule would have allowed health care entities to more easily claim that treating transgender or gender non-conforming people violates their religious beliefs.
But just three days after the rule was announced, the Supreme Court ruled in Bostock v. Clayton County that the ban on discrimination “because of sex” in Title VII in the Civil Rights Act of 1964 includes anti-LGBTQ discrimination when it comes to employment. A federal judge later blocked the Trump-era rule.
Bacerra said that the Biden administration rule will likely take effect next year.
