The Department of Health and Human Services has stated that it will restore transgender and LGBTQ+ health care protections. Under the Trump Administration, HHS had defined the term “sex” narrowly to mean gender assigned at birth. This had the consequence of excluding transgender and other LGBTQ+ individuals from protection against discrimination in health care. The Biden Administration has now reversed that policy.
This change aligns HHS enforcement with a June 2020 Supreme Court case, Bostock v. Clayton County. In Bostock, the Supreme Court held that federal law’s ban on sex discrimination also prohibits discrimination on the basis of sexual orientation or gender identity. Though Bostock concerned an employment discrimination issue, the ban on sex discrimination extends to many areas of federal law, including health care.
The Patient Protection and Affordable Care Act includes a number of anti-discrimination provisions, including a ban on sex discrimination. As required by Bostock, HHS will now interpret the term “sex” to include sexual orientation and gender identify, in addition to gender assigned at birth. Announcing the change, HHS Secretary Xavier Becerra said, “Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. 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.”