The Biden administration took action Monday to require hospitals to perform sex-change procedures and offer other other transgender medical services or face anti-discrimination lawsuits, restoring an Obama-era policy that had been ended by President Donald Trump.
The Department of Health and Human Services announced that its Office of Civil Rights will interpret and enforce laws that prohibit discrimination based on sex to include sexual orientation and gender identity, in line with the recent Supreme Court 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," HHS Secretary Xavier Becerra said. "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."
The Supreme Court's 6-3 decision in Bostock established that federal laws that prohibit sex discrimination in employment also protect gay and transgender people. Days before that ruling last year, the Trump administration acted to protect the conscience rights of medical professionals who object to transgender or abortion procedures by interpreting "sex" to mean biological sex in health care law. Trump's policy was a reversal of an Obama-era rule that interpreted the Affordable Care Act to include gay and transgender people as protected classes. A federal judge blocked the Trump rule from taking effect, but the Trump administration argued that because health care law is a separate matter from employment discrimination law, it still had the power to define "sex" as biological sex in matters related to health care.
Now the Trump rule is officially gone and the Obama-era rule has been reinstated by President Joe Biden. Hospitals, clinics, and other medial providers are once again subject to government sanctions if they deny sex-change surgeries, such as hysterectomies, or hormone treatments to people who identify as transgender, while offering those procedures for other medical conditions.
"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," Dr. Rachel Levine, the first transgender person to be confirmed as assistant secretary for health, said. "No one should be discriminated against when seeking medical services because of who they are."
Reacting to the announcement, social conservative groups warned that hospitals and medical professionals could be forced to provide sex-change procedures to anyone who demands one, even children, or face legal action.
"Make no mistake: the policy announced by HHS today is not about 'fix[ing] a broken bone' or 'screen[ing] for cancer risk.' No American was being denied access to these treatments for identifying as 'LGBTQ,'" American Principles Project President Terry Schilling said. "Rather, this policy is really about forcing hospitals and medical professionals to adhere to leftist ideology regarding sexuality and gender—and in particular to provide sex-change procedures to all comers, including children."
Matt Bowman, senior counsel at Alliance Defending Freedom, said that Biden's administration is "arbitrarily" redefining "sex" via administrative action.
"This action promotes dangerous procedures for minors, threatens to compel medical professionals to contradict their best medical judgment about what promotes patient health and to violate their oath to 'do no harm,' and threatens to strip professionals of their ability to continue serving vulnerable populations," said Bowman.
Editor's note: This article was updated on 5/10/2021 at 4:18 p.m. ET with a statement from the Alliance Defending Freedom.