HHS bans discrimination over orientation, gender identity

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The U.S. Department of Health and Human Services (HHS) announced Monday that the Office for Civil Rights will interpret and enforce Section 1557 and Title IX’s prohibitions on discrimination based on sex to include orientation and gender identity.

This is a change from the Trump era when many federal departments stopped enforcing or revoked bans on discrimination. HHS had stopped enforcing protections in 2019.

In a statement, HHS stated that the change came after the U.S. Supreme Court’s decision in Bostock v. Clayton County.

“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. That’s why today HHS announced it will act on related reports of discrimination,” said HHS Secretary Xavier Becerra.  “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.”

Research shows that one quarter of LGBTQ people who faced discrimination postponed or avoided receiving needed medical care for fear of further discrimination.

“The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” said Dr. Rachel Levine, Assistant Secretary for Health.  “No one should be discriminated against when seeking medical services because of who they are.”  

Lambda Legal welcomed the change.

“We applaud HHS for taking this important and necessary step, which is ever more important during the global Covid-19 pandemic,” said Omar Gonzalez-Pagan, Senior Attorney and Health Care Strategist for Lambda Legal. “However, the significant step taken today is just one step in what is a long road to undo the undermining of health care protections for all people under the Trump administration. Today’s announcement does not address significant aspects of the Trump-era rule that we and others have challenged in court.”