The Biden administration announced it is reversing a Trump-era policy that had rolled back protections for transgender individuals in health care. Health care providers and other health-related organizations that receive federal funding may not discriminate based on someone’s gender identity or sexual orientation. On May 10, 2021, the US Department of Health and Human Services (HHS) announced that the Office for Civil Rights (OCR) will interpret and enforce Section 1557 of the Affordable Care Act (Section 1557) to prohibit discrimination based on sexual orientation and gender identity. Section 1557 prohibits discrimination based on race, color, national origin, sex (this now includes sexual orientation and gender identity), age, or disability in covered health programs or activities. Additionally, covered entities are prohibited from discriminating against consumers based on sexual orientation or gender identity.
The Supreme Court ruling last June in Bostock v. Clayton County held that employers who terminate an employee for merely for being gay or transgender violates Title VII of the Civil Rights Act. That same month, the Trump administration responded by making changes to the gender-based discrimination protections of the Affordable Care Act (ACA) by removing nondiscrimination protections for LGBTQ individuals when it comes to health care and health insurance. The OCR will follow Supreme Court precedent and federal law and ensure that the law’s protections extend to those individuals who are discriminated against based on sexual orientation and gender identity.
Next Steps for Employers
Employers should take time to review their benefit plans to determine whether these or other discrimination issues exist, such as exclusion of same-sex spouses and spouses’ children from dependent eligibility or exclusion of coverage for gender affirmation surgeries, hormone therapy, or mental health counseling for individuals who are transitioning as this announcement removes any ambiguity regarding the rights of LGBTQ individuals to health care.