Biden admin. bans sexual orientation, gender identity discrimination in healthcare

California Attorney General Xavier Becerra speaks outside the U.S. Supreme Court in Washington, D.C., November 12, 2019.
California Attorney General Xavier Becerra speaks outside the U.S. Supreme Court in Washington, D.C., November 12, 2019. | SAUL LOEB/AFP via Getty Images

The U.S. Department of Health and Human Services has announced that the agency will interpret federal civil rights law to include a ban on discrimination based on sexual orientation and gender identity, leading critics to say it could require hospitals and doctors to perform sex-change surgeries. 

In an announcement Monday morning, HHS explained that it will interpret Title IX’s explicit prohibition on sex discrimination to include sexual orientation and gender identity.

Under the policy, HHS Office for Civil Rights will enforce Section 1557 of the Affordable Care Act to protect “the civil rights of individuals who access or seek to access covered health programs or activities” and prevent discrimination “against consumers on the basis of sexual orientation or gender identity.”

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As justification, HHS cited the 2020 U.S. Supreme Court decision Bostock v. Clayton County. In that case, the high court ruled that Title VII of the Civil Rights Act of 1964, which protects against employment discrimination, applies to sexual orientation and gender identity.

The Supreme Court’s conclusion comes even though neither category (sexual orientation or gender identity) is mentioned explicitly in federal civil rights law. 

The HHS statement notes that while it will enforce this new interpretation, the agency will still “comply with the Religious Freedom Restoration Act” as well as “all other legal requirements.”

HHS Secretary Xavier Becerra said in a statement 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.”

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

“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.”

In 2020 during the Trump administration, HHS reversed Obama-era policies by finalizing a regulation that stated that sex discrimination protections would be determined “according to the plain meaning of the word ‘sex' as male or female and as determined by biology.”

Terry Schilling, president of the conservative think tank American Principles Project, said in a statement that the HHS decision Monday vindicated the organization’s claim last year during the 2020 election that Joe Biden would make child sex change operations “official government policy” if elected president.

“At the time, the ad was widely denounced in the media as ‘misinformation,’” stated Schilling. “But now that Joe Biden is president, our concerns have sadly been vindicated.”

Schilling said that the new policy is “about forcing hospitals and medical professionals to adhere to leftist ideology regarding sexuality and gender” and forcing them to “provide sex-change procedures to all comers, including children.”

Schilling argued that such a policy “is not based in science.” He referenced a recent decision by a prominent hospital in Sweden to halt the use of puberty blockers on minors under the age of 16.

“Yet, it is now apparently the policy of the U.S. government that such treatments must be given to children or else healthcare institutions risk losing federal funding and being shut down,” Schilling continued. “This is a travesty and must be opposed.”

Chase Strangio, deputy director for Trans Justice with the American Civil Liberties Union LGBTQ & HIV Project, celebrated the HHS decision in a statement.

“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 stated.

“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.”   

Earlier this year, Biden issued an executive order aimed at combatting discrimination based on sexual orientation and gender identity. The order instructed the head of each federal agency to review all existing policies and issue new policies prohibiting discrimination based on sexual orientation or gender identity. 

In March, the Consumer Financial Protection Bureau announced that it will enforce discrimination protections for LGBT individuals. 

In January, the Department of Housing and Urban Development announced that it will enforce the Fair Housing Act based on sexual orientation and gender identity. 

Critics of Biden’s executive order have argued that it could have lasting impacts on people of faith who uphold traditional beliefs on sexuality and marriage. 

“Despite the fact that Bostock dealt only with employment law, no doubt Biden administration activists will try to apply it wherever they wish,” Travis Weber, vice president for policy and government affairs at the Christian conservative activist organization Family Research Council, told The Christian Post in March. 

In April, the Biden administration filed an appeal of a court ruling against an Obamacare mandate that required doctors and hospitals to perform gender transition surgeries.

“The Biden Admin says it can punish doctors and hospitals for ‘sex discrimination' unless they perform controversial gender-transition procedures," Luke Goodrich, vice president and senior counsel at the Becket Fund for Religious Liberty, said in a Twitter thread

"A court struck down this #TransgenderMandate in January … But the Biden Admin just appealed.” 

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