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Biden Administration Restores Rights for Transgender Patients

Officials invited people subject to health care discrimination to file complaints. But formal rule-making will be needed before a Trump-era policy can be fully reversed.

An intensive care unit in Chula Vista, Calif. Monday’s action could have wide-ranging implications for doctors, hospitals, clinics and other parts of the country’s sprawling health care industry. Credit...Etienne Laurent/EPA, via Shutterstock

WASHINGTON — The Biden administration announced on Monday that health care providers cannot discriminate against gay and transgender individuals, the latest step in President Biden’s efforts to restore civil rights protections for L.G.B.T.Q. people that were eliminated by his predecessor.

Under the new policy, the Department of Health and Human Services will once again prohibit discrimination on the basis of sexual orientation and gender identity by health care organizations that receive federal funding.

The move will begin to reverse a policy adopted by the department under President Donald J. Trump that said anti-discrimination provisions of the Affordable Care Act of 2010 did not apply to transgender people. That change had been hailed by social conservatives and harshly criticized by supporters of transgender rights.

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences,” Xavier Becerra, Mr. Biden’s health secretary, said in a statement. “It is the position of the Department of Health and Human Services that everyone — including L.G.B.T.Q. people — should be able to access health care, free from discrimination or interference, period.”

The shift is part of a broader effort by the president to include lesbian, gay, bisexual, transgender, queer and questioning people — and particularly transgender individuals — in protections against discrimination. In his first address to a joint session of Congress last month, Mr. Biden pledged his support for the Equality Act, which would expand civil rights laws to include sexual orientation and gender identity.

“To all transgender Americans watching at home, especially the young people: You’re so brave,” Mr. Biden said in his speech. “I want you to know your president has your back.”

Advocacy groups said the decision by Mr. Becerra was an important step toward preventing discrimination in the health care system.

“Today, the Biden administration and H.H.S. provided some needed clarity after the Trump administration did everything it could to undermine and muck up the law to target and hurt our communities, in particular, transgender patients,” said Omar Gonzalez-Pagan, a health care strategist for Lambda Legal, an advocacy organization.

Opponents of the move, including former Trump administration officials, condemned the president and his health bureaucracy for what they called a misguided attempt to use politics to influence the practice of science and health care by threatening to withhold federal funds.

“Many people of good will who are scientists and doctors believe sex is a biological reality,” said Roger Severino, who led the Office for Civil Rights at the Department of Health and Human Services during the last administration. “This action is attempting to impose a contrary view.”

Brian Burch, the president of CatholicVote, a faith-based advocacy group, said the administration’s announcement “turns back the clock on medical sanity.”

Administration officials said the new policy was required by a Supreme Court ruling last summer that said civil rights laws protect L.G.B.T.Q. workers from employment discrimination. Mr. Biden signed an executive order in January directing agencies to revise policies in response to the court’s decision. While the case did not address the health care law specifically, the legal language is so similar to that of the employment law that many legal experts and several federal judges believe the Trump administration approach must be revised.

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The move is part of a broader effort by President Biden to include lesbian, gay, bisexual, transgender, queer and questioning people in protections against discrimination.Credit...Doug Mills/The New York Times

But Monday’s action does not fully reverse the Trump administration’s interpretation of the law. It encourages people who believe they have been discriminated against to bring complaints to the federal government. Biden administration officials said they were working to write more complete new regulations on the civil rights provision of the law, known as Section 1557, that will specify which health care institutions are subject to the rules and what sorts of services they will be required to provide.

“We do anticipate engaging in further rule-making,” said Robinsue Frohboese, the acting director of the Office for Civil Rights. She said the administration did not have a timeline for when a formal regulatory change would be announced.

A formal rule will require reconsideration of a number of legal questions, such as whether the provisions apply to health insurers as well as health care providers. The Obama administration and the Trump administration also disagreed about whether the law’s sex discrimination language encompassed the treatment of patients who had had abortions.

“This is the first step for the Biden administration on this,” said Katie Keith, a consultant and a member of the research faculty at Georgetown University, who has been closely tracking the many lawsuits related to the civil rights provision. “This is nowhere near the end for them.”

Alexis McGill Johnson, the president of Planned Parenthood Federation of America, urged Mr. Becerra to move quickly to go beyond Monday’s announcement and pledged the group’s help to win support for broader change in the government’s health care regulations.

“Planned Parenthood is ready to continue working with the administration on next steps to repeal the harmful Trump-era rule and ensure all people can access the health care they need,” Ms. Johnson said.

Section 1557 of the Affordable Care Act established broad civil rights protections in health care, barring discrimination based on race, color, national origin, sex, age or disability in “any health program or activity” that receives federal financial assistance. Under the Obama administration’s 2016 interpretation, health care providers and insurers would have been required to provide and cover medically appropriate treatment for transgender patients, including hormone treatment, cancer screening and surgeries.

Both the Obama and Trump interpretations of the law have prompted lawsuits around the country, resulting in an often-conflicting legal record.

Even without all the details specified in the announcement, Monday’s action could have wide-ranging implications for doctors, hospitals, clinics and other parts of the country’s sprawling health care industry.

The new policy comes amid a flurry of state legislative activity related to the medical treatment of transgender adolescents. More than 10 states have considered or passed bills this year that would prohibit medical providers from providing certain medications, hormones or surgeries to transgender teenagers. Providers in those states may find themselves in a bind — subject to potential criminal penalties if they treat the children, or federal discrimination penalties if they do not.

“It is really difficult and challenging with these state laws that are targeting trans youth,” said Dr. Rachel Levine, the assistant health secretary and the Biden administration’s highest-ranking transgender official. “There is a disconnect between these laws and our interpretation of 1557 in terms of preventing discrimination against these kids. There will need to be legal analysis about that inconsistency.”

Michael D. Shear is a veteran White House correspondent and two-time Pulitzer Prize winner who was a member of team that won the Public Service Medal for Covid coverage in 2020. He is the co-author of “Border Wars: Inside Trump's Assault on Immigration.” More about Michael D. Shear

Margot Sanger-Katz is a domestic correspondent and writes about health care for The Upshot. She was previously a reporter at National Journal and The Concord Monitor and an editor at Legal Affairs and the Yale Alumni Magazine. More about Margot Sanger-Katz

A version of this article appears in print on  , Section A, Page 12 of the New York edition with the headline: Civil Rights Are Restored For Transgender Patients. Order Reprints | Today’s Paper | Subscribe

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