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Biden Administration Reverses Trump’s Definition of ‘Sex’ in Healthcare, Returns to Obama-Era Protections for LGBTQ Americans


NEW YORK, NY - OCTOBER 24: L.G.B.T. activists and their supporters rally in support of transgender people on the steps of New York City Hall, October 24, 2018 in New York City. The group gathered to speak out against the Trump administration's stance toward transgender people. Last week, The New York Times reported on an unreleased administration memo that proposes a strict biological definition of gender based on a person's genitalia at birth.

The Biden administration announced Monday that it will restore protections against LGBTQ discrimination in healthcare, thereby reversing the former administration’s widely-criticized policy.

Section 1557  of the Affordable Care Act (“Section 1557”) prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in covered health programs or activities. The interpretation of the word “sex” has taken several different forms. The Obama administration interpreted “sex” under Section 1557 to include the “termination of pregnancy and gender identity, which it defined as ‘one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.’”

Under President Donald Trump, however, the interpretation (but not the underlying statute) was altered to mean “male or female and as determined by biology.” At the time, Trump’s Department of Health and Human Services (“HHS”) reasoned that the interpretation change would clarify the law, thereby minimizing costly litigation. However, the change was sharply criticized as homophobic and transphobic, and the timing was notably awkward. The HHS interpretation of the phrase “sex” to mean “biological sex” came just three days before a landmark Supreme Case that found just the opposite in an analogous case.

Last June, the Supreme Court decided Bostock v. Clayton, a case about sex-based workplace discrimination. Writing for the majority, Trump appointee Neil Gorsuch delivered an unambiguous statement about the law’s meaning.  “The answer is clear,” he wrote. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Still, the Trump administration clung to its revised interpretation of Section 1557. Now, Biden HHS Secretary Xavier Becerra has announced a change that brings Section 1557 in line with the Bostock ruling.

“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That’s why today HHS announced it will act on related reports of discrimination,” said Becerra.

Although Bostock related to Title VII of the Civil Rights Act of 1964 (Title VII), HHS now applies the same logic to interpretation of Section 1557 of the Affordable Care Act. HHS’s announcement Monday explained:

The Bostock majority concluded that the plain meaning of “because of sex” in Title VII necessarily included discrimination because of sexual orientation and gender identity.  Consistent with the Supreme Court’s decision in Bostock and Title IX, beginning today OCR will interpret Section 1557’s prohibition on discrimination on the basis of sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity. This interpretation will guide OCR in processing complaints and conducting investigations, but does not itself determine the outcome in any particular case or set of facts.

HHS’s decision to apply a broader definition of “sex” for purposes of protection against discrimination aims to achieve equity in healthcare, noting the particular vulnerability of the LGBTQ population.

“Discrimination in health care impacts health outcomes,” the agency continued.  “Research shows that one quarter of LGBTQ people who faced discrimination postponed or avoided receiving needed medical care for fear of further discrimination.”

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences,” Becerra said. “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.”

Chase Strangio, deputy director for Trans Justice with the American Civil Liberties Union LGBTQ & HIV Project, issued the following statement in response to the change.

“With health care for transgender youth under attack by state legislatures, this move to protect LGBTQ people from discrimination in health care is critical,” Strangio said. “The Biden administration has affirmed what courts have said for decades: Discrimination against LGBTQ people is against the law. It also affirms what transgender people have long said: Gender-affirming care is life-saving care.”

[Editor’s note: This piece was amended shortly after publication to add Strangio’s comments.]

[image via Drew Angerer/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos