The Biden administration is reversing a rule initiated by former President Donald Trump that defined “sex” as biological, in an effort to prevent “discrimination” against transgender people in health care practices, the Department of Health and Human Services announced on Monday.
The notice of enforcement, while not a binding federal rule, signals that the federal government will begin interpreting Section 1557 — the non-discrimination provision of the Patient Protection and Affordable Care Act — to include a ban on discrimination based on sexual identity, rather than simply banning discrimination based on biological sex, as the Trump administration had. The change will likely require that states, which set their own Medicaid eligibility requirements, provide gender-reassignment surgery and hormone therapy to Medicaid recipients.
“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 (SOGI). That’s why today HHS announced it will act on related reports of discrimination,” HHS Secretary Xavier Becerra said in a statement announcing the change.
Many private insurers, such as Aetna and Blue Cross Blue Shield, and managed care organizations, such as United Healthcare, already cover transition surgeries and hormone therapy, and have an incentive to comply with the Biden administration’s definition of discrimination in order to avoid expensive litigation.
Certain state governments, especially the Republican-dominated, may decide to fight the disputes in court for a number of reasons, including to control cost via a medical necessity determination and to prevent controversial medical procedures from being performed in the state.
Republican states could face lawsuits over the issue via two avenues: Medicaid claim denial and Equal Employment Opportunity Commission(EEOC) claim. Since state governments are also employers, transgender employees could allege that their employer’s healthcare plan is discriminatory, and demand the court force coverage for gender identity medical treatment.
For now, the notice allows exemptions for religiously-affiliated organizations to survive, in adherence to the Religious Freedom Restoration Act (RFRA) and subsequent court rulings. This means hospitals and healthcare providers with religious objections will not be coerced to participate in transgender “transition” interventions by the Office of Civil Rights, the enforcement arm of HHS.
However, The Equality Act pending in the Senate, which President Biden has agreed to sign, poses an existential threat to the RFRA protection in matters of gender identity, sexual orientation, and abortion.
Soon after taking office, Biden signed Executive Order 13988, which tasked federal agencies with drafting plans to better enforce sexual orientation and gender identity rights by an April 30th deadline. The HHS regulatory guidance, released Monday, coincides closely with that stipulated deadline.