The Biden administration announced Friday that it is restoring federal protections for LGBTQ+ people seeking health care that unraveled during the Trump administration.
The move comes after years of legal battles and pressure from activists to protect patients undergoing gender-affirming treatment or who have had an abortion from being denied other forms of health care. Conservatives oppose rules that prohibit discrimination, arguing that they would force service providers to provide services that go against their religious beliefs.
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Under sweeping rules issued Friday by the U.S. Department of Health and Human Services, government health officials, organizations that receive federal health care funding and health insurers that do business through government plans must adhere to nondiscrimination standards. Officials emphasize that the rules are about banning discrimination against patients and not about forcing providers to perform procedures.
Supporters of the rules have said they would protect patients from being turned away for being gay or trans, and ban health insurance policies that require LGBTQ+ people to wait longer and pay more for fertility benefits. The rules also include more broadly applicable provisions, such as requiring health care providers and other recipients of federal money to inform patients about free services that provide accessibility and language assistance.
“Americans across the country now have a clear way to assert their rights against discrimination when they go to the doctor, talk to their health plan, or participate in HHS health programs,” HHS Secretary Xavier Becerra said in a statement.
The rule takes aim at Section 1557 of the Affordable Care Act, which prohibits health care providers from discriminating on the basis of race, color, national origin, sex, age and disability in health care programs that receive federal funding. HHS can impose harsh penalties on organizations and employees that the agency concludes have violated the law — ranging from requiring additional training to kicking violators out of federal programs. Federal officials say the rules preserve religious exceptions.
Politicians and advocacy groups have debated for more than a decade about how the White House should interpret the rule, particularly how it applies to LGBTQ+ and pregnant patients, who could face discrimination from healthcare providers who do not want to treat them. The Obama administration issued regulations that included protections for gender identity and sex stereotypes. The Trump administration has eliminated these specific protections. And the Biden administration took steps in 2022 to restore and expand the Obama-era definition to include sexual orientation as a specific protection.
The Supreme Court also ruled in 2020 in Bostock v. Clayton County, Georgia that sex discrimination includes discrimination based on gender identity or sexual orientation, prompting some courts to block implementation of the Trump-era rules. A coalition of LGBTQ+ and other organizations suing to repeal Trump-era rules urged the Biden administration to expedite rules that restore protections.
LGBTQ+ activists cheered the Biden administration as it finalized the rules Friday.
“LGBTQ Americans are grateful for this step forward in the fight against healthcare discrimination so that no one is left out of lifesaving treatment,” Sarah Kate Ellis, president and CEO of the advocacy group GLAAD, said in a statement.
The fight over health care discrimination is likely to continue as conservatives have announced plans to oppose efforts to strengthen protections.
Republicans criticized the Biden administration’s proposed rule in 2022, with attorneys general warning HHS not to “exceed its statutory authority” and indicating they were prepared to sue over the expected final rule.
Conservatives are also urging the incoming Republican White House to reverse “the redefinition of sex to include gender identity and sexual orientation and pregnancy to include abortion,” Project 2025, a conservative group backed by the Heritage Foundation, wrote last years in a roadmap for policymakers.
The Biden administration’s interpretation of the law would “create special privileges for new classes of people, defined in a way that is highly ideological and unscientific,” Project 2025 added. The group called on HHS to focus instead on “serious cases of discrimination based on race, sex, and disability,” such as the investigation into Michigan State University following allegations that former gym doctor Larry Nassar assaulted students there .
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