The Biden administration has proposed a rule change to redefine the meaning of ‘sex’ in the Affordable Care Act to include gender identity.
According to The Department of Health and Human Services, this shift would expand upon Obama administration policies which made medical institutions liable for refusing to perform sex reassignment surgeries.
The proposal occurred after several states, including Arkansas and Tennessee, passed laws banning sex reassignment surgery or transgender hormone usage for minors. In 2020, Trump’s administration concluded that ‘sex’ in the Affordable Care Act did not extend to gender identity after numerous states and religious health organizations expressed concern that it could force medical professionals to conduct procedures that violated their conscience.
On March 31, the White House published a fact sheet outlining the positions of the Biden-Harris Administration about transgender and LGBTQ issues. It condemned laws recently passed in various states as a “proliferation of dangerous anti-transgender legislative attacks.”
On the same day, the Justice Department sent a letter to the State Attorney Generals, claiming that Section 1557 protects transgender patients from allegedly discriminatory actions such as refusing to perform what they consider “medically necessary care, including gender-affirming care.”
Health and Human Services Secretary Xavier Becerra supported the change saying, “Standing with communities in need is critical, particularly given increased attacks on women, trans youth, and health care providers. Health care should be a right not dependent on looks, location, love, language, or the type of care someone needs.”
As recently as 2021, courts have sided with religious objections to the provision, deciding that the “[Health and Human Service]’s interpretation of Section 1557 that requires the Catholic Plaintiffs to perform and provide insurance coverage for gender-transition procedures violates their sincerely held religious beliefs.”
If the rule change is approved, its implementation will likely have more legal challenges.