LGBTQ+ Protections Under Affordable Care Act to Be Expanded by Biden

The U.S. Department of Health and Human Services has proposed rules prohibiting discrimination against persons of any race, color, national origin, gender, age, or disability in certain health programs and activities.

In specific federally funded health programs and HHS programs, the proposed rule would fortify civil rights protections weakened in the 2020 version of the rule under the Trump administration, according to an agency press release.

As part of Section 1557 of the Affordable Care Act, the proposed rule restates protection against discrimination based on gender, including sexual orientation and gender identity, as outlined in Bostock v. Clayton County. Further, the rule reinforces protections against discrimination when seeking reproductive health care.

Under Section 1557, individuals must be treated based on their gender identity when accessing health care facilities and receiving care. In addition, people who are labeled based on gender must be treated according to their self-identified gender.

"This proposed rule ensures that people nationwide can access health care free from discrimination," said Health and Human Services secretary Xavier Becerra in the statement announcing the proposal. "Standing with communities in need is critical, particularly given increased attacks on women, trans youth, and health care providers. Health care should be a right not dependent on looks, location, love, language, or the type of care someone needs."

Acting HHS Office for Civil Rights (OCR) Director Melanie Fontes Rainer said, "Now more than ever, we must stand up for those around the country whose voices often go unheard, to let them know we stand with them and are working to ensure they can access health care free from discrimination."

LGBTQ+ people are expected to benefit from these changes - if finalized as proposed, the updated regulation for implementing Section 1557 of the Affordable Care Act would offer explicit protections based on sexual orientation and sex characteristics, as well as improving protections for gender identity, which has already been provided.

Advocacy groups such as the Human Rights Campaign lauded the Biden-Harris administration's move. The group notes that the Trump administration implemented changes to Section 1557 that would have damaged LGBTQ+ protections.

"No one should face discrimination in accessing medical care or insurance," said Joni Madison, HRC interim president in a statement. "Despite the advances in policy during the Obama and Biden administrations, LGBTQ+ people continue to face disproportionate challenges when it comes to accessing healthcare. This rule change would help to close that gap, and it is desperately needed at a time when some states are attacking access to care."

The revised proposal will align with the landmark U.S. Supreme Court decision Bostock, which held that discrimination based on sexual orientation or gender identity is sex discrimination prohibited under Title VII of the Civil Rights Act of 1964.

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