New rules prohibit discrimination by doctors, Medicaid and health insurance plans — but make religious exemptions easier to obtain.
By Orion Rummler
Originally published by The 19th
LGBTQ+ Americans now have greater protections against discrimination when seeking health care, whether from hospitals, doctors, Medicaid programs, and health insurance plans, according to a new rule released Friday by the Biden administration.
LGBTQ+ advocates have been waiting for these finalized protections for several years, since the administration said in 2021 that it would interpret Supreme Court precedent to broaden nondiscrimination protections under the Affordable Care Act (ACA).
The new regulation undoes rulemaking under the Trump administration that excluded transgender people from nondiscrimination protections in the ACA and expands Obama-era protections for LGBTQ+ people. The language is broader than the Biden administration’s initial policy proposal, as it refers less often, and less explicitly, to sexual orientation and gender identity while still laying a foundation to protect against LGBTQ+ discrimination. Potential exemptions for religious groups are also more easily obtainable under the new rules, although not as extensive as they could have been.
Julianna Gonen, federal policy director with the National Center for Lesbian Rights, wants LGBTQ+ Americans to know that they do not have to accept mistreatment in doctor’s offices — a phenomenon that many queer and trans people face on a daily basis. The law is on their side, she said, even if they live in a red state with hostile policies.
Gonen has seen how some LGBTQ+ people feel resigned to discrimination in healthcare settings. At a 2018 rural community meeting in North Dakota, a same-sex couple — one of whom was transgender — told the group that they had been turned away by a doctor’s office and told “we don’t treat people like you here.”
“I was shocked to hear that, and I pointed out that that treatment is unlawful. But these folks didn’t know that. They thought that because they lived in a red state, that’s just what they had to live with,” she said. The implementation of these regulations will be so important because of those experiences, Gonen said; these laws need to be on the books, and LGBTQ+ people need to be aware of their protections.
“The protection exists in the Affordable Care Act, but it’s really helpful and important that regulations make very clear who’s covered. Because the Affordable Care Act says you can’t discriminate in health care based on sex. And we know, because of how federal law has evolved, that does include sexual orientation and gender identity,” she said. Gonen joined other LGBTQ+ policy experts in discussions with the Department of Health and Human Services (HHS) during the final rulemaking process for the new regulations.
The rule issued Friday by the Biden administration refers to Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination on the basis of race, color, national origin, sex, age, or disability by health programs that receive federal funding. The foundation on which the Biden administration is issuing this rule is Bostock v. Clayton County, the 2020 case where the Supreme Court found that discrimination on the basis of sexual orientation and gender identity is sex-based discrimination prohibited by the Civil Rights Act of 1964.
Major advocacy groups including the Human Rights Campaign (HRC), the country’s largest LGBTQ+ organization, applauded the final version of the regulations released on Friday. However, the HRC rebuked the Biden administration for “incorrectly” interpreting how nondiscrimination protections in the ACA interact with the Religious Freedom Restoration Act.
The new rule fails “to take into account that the government has a compelling interest in eradicating discrimination in health care and that the only way to end discrimination is to prohibit denial of care and other forms discrimination,” the HRC said in a statement, noting that health care entities will be able to request a temporary exemption or assurance of an exemption from the nondiscrimination policy, based on religious beliefs. This is a new addition to the policy, compared with the Biden administration’s 2022 proposal.
However, the final rule does not include a Title IX religious exception — which is a significant win for LGBTQ+ advocates. That exception would have allowed educational institutions and other entities controlled by religious organizations to flout the nondiscrimination requirements, a result that the Biden administration wanted to avoid.
The Title IX statute states that the nondiscrimination requirements “shall not apply to an educational institution which is controlled by a religious organization” to the extent that such application “would not be consistent with the religious tenets of such organization.” Looking for the best way to address religious objections to the new rule — of which there were many — the HHS instead pitched the process of temporary exemptions and a longer appeal process.
During the final stages of the rulemaking process in April, the HHS Office for Civil Rights met with attorneys and policy experts from LGBTQ+ rights advocacy groups the Human Rights Campaign, Lambda Legal, the National Center for Transgender Equality, and the National Center for Lesbian Rights, as well as with D.C.-based LGBTQ+ health care provider Whitman-Walker.
HHS staff also met in April with the Center for Christian Virtue and Partners for Ethical Care, two nonprofit groups that lobby against access to gender-affirming care for transgender people, particularly trans youth. The Heritage Foundation, a conservative think tank that has shaped the GOP’s agenda for decades, met with HHS staff earlier in the rulemaking process to push against the expansion of nondiscrimination protections under the ACA.
Ultimately, the regulations being finalized will make it easier for LGBTQ+ people to sue if they are mistreated in healthcare settings, said Gonen and Lindsey Dawson, director for LGBTQ health policy at KFF, a nonpartisan organization that studies healthcare policy. The U.S. District Court for the Southern District of California, and a few other courts, have previously found that the ACA prohibits health care discrimination against LGBTQ+ people — but having a clearly defined rule from the federal government adds significant weight.
“When it’s left to individual courts and individual cases to decide, you can end up with a patchwork of rights and protections,” Dawson said. “But interpretation of the statute through regulations is much broader and further reaching, and impacts the population as a whole.”
The nondiscrimination protections under ACA are there, as long as a court interprets the statute the right way, Gonen said — and cementing the federal regulations on top of that is helpful, she said. The National Center for Lesbian Rights is already challenging a number of gender-affirming care bans on the basis of Section 1557 of the ACA, she noted — so having a federal regulation backing that argument will only make their cases stronger.
Even if former President Donald Trump were to take office again and once more cut LGBTQ+ protections in health care, the courts could still continue to find that the ACA includes nondiscrimination protections for LGBTQ+ people, Dawson said. That’s because although the implementation and interpretation of nondiscrimination protections under the ACA has continually evolved under the Obama, Trump, and Biden administrations, these implementations don’t change the text of the law itself, she said.
As the Biden administration noted in its initial policy proposal in 2022, multiple court challenges have been issued against the HHS interpretation of Bostock. As Republicans and conservative groups promise lawsuits over the administration’s new Title IX rules to protect LGBTQ+ students and sexual violence survivors, more legal challenges may be imminent.
The new federal regulations come at a time when LGBTQ+ Americans — who are already vulnerable at the doctor’s office — have faced an onslaught of restrictive state policies. Ten states have passed religious exemption laws that permit medical professionals and therapists to refuse to see LGBTQ+ patients, according to the Movement Advancement Project, which tracks LGBTQ+ policy. Six of those state laws were passed in the last four years.
Arkansas and Mississippi explicitly permit private insurers to refuse to cover gender-affirming care, per the Movement Advancement Project. Twenty-three states ban gender-affirming care for transgender youth, and one state, Arizona, bans surgery for trans youth. In five of those states, it is a felony for medical professionals to provide gender-affirming care to minors. Lawsuits in multiple states have caused gender-affirming care bans to be blocked in court.
Kellan Baker, executive director of Whitman-Walker, said in a statement that, when paired with “robust enforcement,” the finalized rule will help dismantle healthcare barriers for LGBTQ+ people across the country.
“During a time when state legislatures are stripping transgender people of their right to basic health care, we are heartened to see the Biden-Harris administration take a strong stance on the vital necessity of access to inclusive health services for all,” he said. Baker joined other LGBTQ+ policy experts in discussions with the HHS during the rulemaking process.
Research shows that LGBTQ+ people routinely face discrimination when receiving medical care. A recent KFF poll found that, despite having overall positive experiences with health care providers, LGBTQ+ adults were twice as likely as non-LGBTQ+ adults to say they were treated unfairly or with disrespect by a doctor or health care worker.
Of those adults who said they were mistreated, 61 percent said that a medical provider suggested they were to blame for a health problem, ignored direct questions, refused to prescribe pain medication, or assumed something about them, according to an NBC News report on the KFF poll.
The new regulations will go into effect 60 days after their publication in the Federal Register on May 6 — except for provisions that require changes to private health insurance plans. Those provisions need one plan year after publication to take shape, which is different from a calendar year.
