Bloomberg Law
Free Newsletter Sign Up
Login
BROWSE
Bloomberg Law
Welcome
Login
Advanced Search Go
Free Newsletter Sign Up

Biden HHS Moves to Resurrect LGBTQ Bias Shield in Health Care

July 25, 2022, 8:00 PM

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 from discrimination under Section 1557 of the Affordable Care Act, reversing a Trump-era regulation. The Health and Human Services Department 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 funding.

The move comes as several states have passed laws prohibiting gender-affirming care for transgender children, which advocates argue could lead to bias and harm. In addition, 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, like that in a doctor’s office. The Obama administration took the view 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 wish to live your life, that you have access to the care that you need so that your decisions are based on what you and your health-care provider and your physician or the person you depend on for medical decisions is available to you so you can access the care that you need,” HHS Secretary Xavier Becerra said in a call with reporters Monday. “We believe that this will restore and strengthen civil rights protections for patients and consumers throughout 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 County, which 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 Trump administration implementing Section 1557 are still tied up in court. Those court cases found that the word “sex” could not be interpreted to include gender identity in the regulations.

“No doubt someone may challenge us and say that we’re not interpreting the law properly. We think we are, we have taken quite a bit of time,” Becerra said.

The proposed rule also includes a provision on religious and conscience in response to feedback from the health-care industry and advocates, OCR Acting Director Melanie Fontes Rainer said during the call. Past 1557 regulations have not addressed religious and conscience exceptions in the rule, although the Trump administration finalized numerous rules on the topic.

Anyone facing discrimination on the basis of a pregnancy or related conditions, including “pregnancy termination,” would also be protected by the rule. This comes just weeks after the right to an abortion was delegated to the states by the US Supreme Court.

Nondiscrimination protections would also apply to telehealth services and algorithms used to support clinical decisions, the rule said.

Clarifying that Medicare Part B is covered under this statute is trying to ensure “the rules are consistent and simple,” Centers for Medicare & Medicaid Services Administrator Chiquita Brooks-LaSure told reporters. “This is really making sure that the protections that are afforded by 1557 really are applying much more broadly across all of our programs.”

The HHS will take comments for 60 days after the rule’s publication in the Federal Register. Becerra said the HHS wants to move as quickly as possible and is hopes to finalize the rule by the end of 2022.

To contact the reporter on this story: Shira Stein in Washington at sstein@bloomberglaw.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com