Federal Government Approves New Rules to Protect LGBTQ+ Individuals

The Biden administration has taken several steps to protect LGBTQ+ individuals in health care and schooling.

On April 26, the Department of Health and Human Services (HHS) issued a final rule reinstating and strengthening the nondiscrimination provisions of Section 1557 of the Patient Protection and Affordable Care Act. That was preceded by a final rule under Title IX, which prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance. The rules reverse some of the limitations put in place by the Trump administration.

Section 1557 has been the source of numerous lawsuits around both regulatory rule making and the nondiscriminatory provisions themselves. The new rule, which is now in effect, extends protection against discrimination on the basis of multiple protected characteristics, including sexual orientation and gender identity.

The rule also clarifies that the nondiscriminatory provisions apply to health programs and activities that receive direct or indirect federal financial assistance from HHS, health programs, and activities administered by HHS; covered entities include state Medicaid agencies, Medicare, many health insurance plans, and most hospitals and providers, among others.

The rule “exemplifies the Biden-Harris Administration’s ongoing commitment to health equity and patient rights,” said Office of Civil Rights Director Melanie Fontes Rainer in a news release. “The robust protections of 1557 are needed now more than ever. Whether it’s standing up for LGBTQI+ Americans nationwide, making sure that care is more accessible for people with disabilities or immigrant communities, or protecting patients when using AI in health care, OCR protects Americans’ rights.”

Also in April, the Department of Education finalized a new rule under Title IX that prohibits schools from discriminating against LGBTQ+ students based on the student’s gender identity or sexual orientation. The rule also strengthens protections for people who report sexual discrimination, including sexual violence. The rule goes into effect August 1.

“For more than 50 years, Title IX has promised an equal opportunity to learn and thrive in our nation’s schools free from sex discrimination,” U.S. Secretary of Education Miguel Cardona said in a news release. “These final regulations build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights.”

The most controversial aspect of the rule has so far proven to be its new protections for transgender students. Ten states, such as Florida, Alabama, and Utah, have passed laws banning transgender students from using the bathrooms that align with their gender identities, according to the Movement Advancement Project. Some states have passed laws explicitly stating that teachers are not required to use the pronouns or names with which a transgender student identifies.

As of early May, several states had filed lawsuits challenging the Biden administration’s updated Title IX rules. The lawsuits were backed by more than a dozen states, all with Republican leaders, according to the Washington Post. The states argued that the new Title IX regulations will clash with their own laws and that the changes amount to an illegal rewriting of the original Title IX legislation.

“It should not be controversial to protect transgender students,” Jack Turban, M.D., M.H.S., told Psychiatric News. Turban is the director of the Gender Psychiatry Program at the University of California, San Francisco, and author of the forthcoming book Free to Be: Understanding Kids & Gender Identity.

Turban explained that trans-inclusive policies are rooted in evidence. He pointed to a 2019 study in Pediatrics that found that transgender youth whose restroom and locker room use was restricted were more likely to experience sexual assault compared with those who didn’t face such restrictions.

Opponents of policies that allow transgender individuals to use the bathrooms that align with their gender identities often cite safety concerns, usually claiming that such policies could endanger cisgender individuals. Yet Turban pointed to a 2018 study in Sexuality Research and Social Policy that found that such inclusive policies are not related to criminal incidents in public bathrooms, locker rooms, or dressing rooms and that, overall, safety violations in these spaces are “exceedingly rare.”

The transgender community “bears a disproportionate burden of harassment and discrimination,” Turban said. He encouraged psychiatrists to continue to push for evidence-based policies that support this community. ■