"This is the baseline of what a presidential administration should do. It is an administration. Congress makes the laws and the president administers it," says Keisling. "Congress passed the Affordable Care Act, including Section 1557," which disallows discrimination based on race, color, national origin, sex (including sexual orientation and gender identity), age, or disability in covered health programs or activities. "The Biden administration is saying they will enforce the laws. So when a trans person is discriminated against and goes to court, they know the federal government is on their side instead of trying to go against federal civil rights laws."
The administration based its decision on a June 2020 Supreme Court ruling that found federal civil rights law prohibits discrimination against LGBTQ+ workers.
“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 in a press release. “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.”
Enforcement of Section 1557 of the Affordable Care Act means that all people have legal grounds to access health care.
"Section 1557 covers healthcare as people think of healthcare, like going to the doctor. A doctor can't say, 'You're a woman, I don't want to treat you,' or, 'Your parents are a same-sex couple, I don't want to treat you,' that actually happens, or, 'You're trans, I don't want to treat you,'" says Keisling. "But it also covers insurance."
Insurance companies have denied coverage to trans people, even when the treatment has nothing to do with gender affirmation. For example, a doctor diagnoses two people with uteruses with endometriosis. One person is a trans man and the other is a cis woman, and the doctor says both people need surgery. "The insurance companies would say, 'Well, we'll give it to the woman, but we won't give it to the man because he needs it because he's trans,'" says Keisling. "And the doctor will say, 'No, it's because he has those parts.' And the insurance company says, 'Well, we have a prohibition against trans stuff.'" Upholding anti-discrimination laws in health care makes these instances illegal.
This announcement from the Biden administration comes weeks after the Republican-led Arkansas legislature overrode a veto by Republican Gov. Asa Hutchinson and passed a bill banning gender-affirming treatments for transgender minors in the state. Similar legislation has been introduced in 19 other states.
"If it were any other children with special healthcare needs, the sky would have fallen by now, because in a sense, that's what this is. This is kids whose parents are doing the best they can with a unexpected context," says Keisling. "The idiots in the Arkansas legislature who did this probably think they're sticking it to the liberals in Washington. They are not. They are hurting young Arkansans. They are hurting Arkansas families. It's just an absolute disgrace."
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