Biden administration moves to restore ACA protections for LGBTQ people

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Trans youth targeted by discriminatory state laws could be helped by a new rule proposed by the Department of Health and Human Services, experts say.

The U.S. Department of Health and Human Services released a proposed rule on Jan. 5 that includes provisions that would prohibit discrimination against LGBTQ people in health care and require health care plans to cover gender-affirming care.

The text of the rule, titled "Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2023," notes that it is a result of President Joe Biden's executive order of Jan. 21, 2021, against discrimination and its order that HHS review all existing regulations and guidelines: "In consideration of this Executive Order, and as a result of our review of certain regulations, we propose to amend HHS regulations such that Exchanges, issuers, and agents and brokers are prohibited from discriminating based on sexual orientation and gender identity."

The proposed rule comes as state GOP lawmakers continue to target transgender people through discriminatory legislation, including bills that seek to limit trans youth's access to hormone treatments and puberty blockers.

The rule would affect health plans sold through Affordable Care Act health care exchanges and restore some of the protections rolled back by the Trump administration. It would clarify what insurers must do to avoid discriminating on the basis of sex under those plans and would enforce Biden administration policies following on the 2020 Supreme Court ruling in Bostock v. Clayton County that discrimination based on sex as defined in Title VII of the Civil Rights Act of 1964 includes discrimination based on sexual orientation and gender identity.

Sharita Gruberg, the vice president for the LGBTQI+ Research and Communications Project at the Center for American Progress, said, "I think this proposed rule goes a long way to helping insurers get the clarity that they need about their obligations under the law. Under the last administration, they just erased the sex provisions, and instead of implementing regulations that provided clarity to consumers and to insurers, what the last administration did was create a lot more confusion."

The focus of the new HHS rule is narrower than that of Section 1557 of the Affordable Care Act, which prohibits discrimination in health care and was gutted by the Trump administration in 2020. Multiple lawsuits challenging both the Trump administration's changes and the Obama-era regulation itself are pending. In a legal filing submitted on May 14, 2021, in one of the cases, the department said it would start its own rule-making process regarding Section 1557. Omar Gonzalez-Pagan, senior attorney and health care strategist at Lambda Legal, said the administration has indicated it will issue a proposed rule by April.

There are some scenarios in which HHS' proposed rule, which is open for comment until Jan. 27, could protect the health care of transgender youth targeted by state anti-trans laws that restrict access to gender-affirming care, depending on how those laws are written.

"If the health ban sought to prohibit a health insurance plan sold in the states from covering gender-affirming care, this regulation would apply and be in conflict with that and would preempt that to the extent that the plan is one that is sold in the health care exchange. If the insurance plan is not sold on the health care exchange, this regulation wouldn't apply," Gonzalez-Pagan said.

Gruberg said, "It definitely does help to make sure that, if you have a plan and it is provided on either the federal exchange or a state exchange that is set up using these federal plans, that they can't just refuse coverage based on gender identity. It's definitely a tool to ensure that people are getting the care that they need and again, federal law trumps state law."

While currently no state laws exist that would be covered by the new rule, lawmakers are continuing to consider anti-trans bills this year. In at least 13 states, lawmakers last year introduced or pre-filed bills that restrict health care for transgender young people that have carried over to this year, according to the American Civil Liberties Union's tracking of 2022 legislative sessions.

Only one state law banning such care was enacted in 2021: In Arkansas, the Legislature overrode the veto of Republican Gov. Asa Hutchinson of a bill prohibiting any gender-affirming care for minors. The law also included a provision that said, "A health benefit plan under an insurance policy or other plan providing healthcare coverage in this state is not required to provide coverage for gender transition procedures." The law was blocked by a federal judge in July, only a few days before it was supposed to take effect.

National anti-LGBTQ groups and influential Republicans have pushed anti-trans messages heavily in the past few years. The right-wing American Principles Project and its PAC announced a campaign in 2020 "aimed at exposing the radicalism of Joe Biden, Kamala Harris and other Democratic candidates on transgender issues." In 2021, Stephen Miller, a far-right former adviser to the Trump administration, told Politico that focusing on transgender athletes would "help [the] GOP win midterms."

Published with permission of The American Independent Foundation.