Biden Reinstates Gay, Transgender Protections to Ban Discrimination in Health Care

Author: David B. Weisenfeld, XpertHR Legal Editor

May 10, 2021

The Biden administration announced today it is reversing a Trump-era policy that had rolled back protections for transgender individuals in health care. In what is being called a victory for LGBTQ rights, health care providers and other health-related organizations that receive federal funding may not discriminate based on someone's gender identity or sexual orientation.

In a landmark ruling last June in Bostock v. Clayton County, the Supreme Court held that employers that fire an individual merely for being gay or transgender violate Title VII of the Civil Rights Act. Writing for the Court, Justice Neil Gorsuch said, "An individual's homosexuality or transgender status is not relevant to employment decisions."

That same month, the Trump administration made changes to the gender-based discrimination protections of the Affordable Care Act (ACA) by removing nondiscrimination protections for LGBTQ individuals when it comes to health care and health insurance.

In a statement rebuking the Trump policy, the Secretary of Health and Human Services Xavier Becerra cited the Bostock ruling in noting the Supreme Court has made clear that people have a right not to be discriminated against no matter their gender identity or sexual orientation.

"Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences," said Becerra. "It is the position of the Department of Health and Human Services that everyone - including LGBTQ people - should be able to access health care, free from discrimination or interference, period." His statement also pointed out that Section 1557 of the ACA bans discrimination on the basis of race, color, national origin, sex, age or disability in covered health programs or activities.

The announcement definitively removes any ambiguity regarding the rights of gay and transgender employees to health care.