US Restores LGBTQ+ Protections from Healthcare Discrimination – Verywell Health

The U.S. Department of Health and Human Services (HHS) announced this week that it will take steps to protect gay and transgender individuals against discrimination in healthcare settings. This marks a reversal in rules set by the Trump administration in 2020. 

The action by the Biden administration restores a policy established during former President Barack Obama’s administration. In 2016, the Obama administration introduced rules clarifying that LGBTQ+ individuals would be protected under the federal health care discrimination provision. Rules established by the Trump administration reversed provisions of the law that extended civil rights protections in health care to cover gender identity and abortion.

“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,” HHS Secretary Xavier Becerra said in the agency’s statement. “Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. 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.”

Experts praise the decision but stress that this is just the beginning for policies and work that needs to be done.

“This is an important and much welcomed first step,” Ellen LaPointe, CEO of Fenway Health, a multi-office medical practice that serves LGBTQ+ patients, tells Verywell. “But much more needs to be done to ensure that everyone—including the most marginalized and at-risk people in our communities—is afforded the same rights and access to healthcare.” 

What Does the Rule Do?

In the HHS statement, Becerra states that the agency will now align with a Supreme Court workplace discrimination decision made last year. This case established that federal laws against sex discrimination on the job also apply to gay and transgender people.

Because of this, the HHS Office for Civil Rights will now begin investigating complaints of sex discrimination on the basis of sexual orientation and gender identity once more.

“This is a critical moment for the LGBTQ community to know there are people fighting for them,” Robert Garofalo, MD, MPH, division chief of adolescent medicine at Lurie Children’s Hospital in Chicago, tells Verywell.

Paula Neira, JD, MSN, an attorney and the clinical program director of the Johns Hopkins Center for Transgender Health, tells Verywell that the action by the Biden administration potentially increases the consequences for healthcare providers, health systems, and insurance companies that discriminate.

Experts expect some state governments to legally challenge this rule.

Restricted Access to Health Care Under Trump

The Trump administration’s rollback of protections against discrimination in health care opened the door for a host of anti-transgender bills nationwide.

According to information from Fenway Health, since the rollback, over 250 anti-transgender bills have been filed, with eight signed into law and another 10 awaiting governors’ signatures. Examples include:

• Arkansas, North Dakota, and South Dakota have enacted laws permitting healthcare providers to deny service to LGBTQIA+ people
• Arkansas enacted a law prohibiting the provision of gender-affirming health care (hormone therapy) to transgender and gender-diverse youth
• Lawmakers in Montana passed a bill restricting access to gender-affirming health care for youth, but it has not yet been signed into law
• An additional 35 bills have been filed that would restrict access to gender-affirming health care for youth; a bill filed in Alabama would make it a felony to do so

Denying medically appropriate health care to transgender youth leads to immediate harm, LaPointe says. Additionally, a 2020 study by researchers from The Fenway Institute and Massachusetts General Hospital found that lack of access to gender-affirming health care increases the odds of lifetime suicidal ideation.

Another 2020 study by researchers at The Fenway Institute published in LGBT Health found that frequent exposure to media coverage related to the filing of anti-transgender bills was associated with an 18% increase in symptoms of depression and a 26% increase in anxiety.

“As a physician, and as a queer person, I’m stymied that we continue to have this discussion,” Garofalo says. “Without these protections, we know that access to health care on the margins—which are the populations we’re talking about here—may choose to not seek out health care because they are worried about being turned away or being othered.” 

More Work Needs to Be Done

“We’re celebrating this as a win, and yet all it does is open a door,” Garofalo says. “There’s still a lot to do to make sure everyone feels welcome coming through the door and is treated with empathy, cultural competency, and cultural respect.”

Many healthcare providers need to take personal steps to improve their care for people in the LGBTQ+ community.

“Healthcare providers may not be malicious, but may just not know how to provide culturally competent care for this population,” Christy Mallory, the legal director at the Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy at the UCLA School of Law, tells Verywell. “That’s sometimes exacerbated by the fact that people in the many people in the LGBTQ community tend to be insured at lower rates and many rely on Medicaid and other public benefits.” 

LaPointe says many LGBTQ+ individuals may not even know that some private practices and academic medical centers may have healthcare providers who are themselves part of the community or simply enthusiastic to treat this community. “And the options have expanded with telehealth,” LaPointe says. “At Fenway, telehealth has vastly expanded our reach, especially where there may be no providers for someone to turn to.”