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LGBTQ Rights

LGBTQ rights were attacked time and time again at HHS under Trump and former Secretary Alex Azar. Its OCR formed a new conscience protection division to exempt health workers with “moral or religious objections” from participating in certain procedures, such as sex reassignment surgery for transgender patients. A leaked 2018 HHS memo outlined the department’s efforts to establish a new legal definition of sex—as assigned at birth on the basis of genitalia—under gender protection laws, meaning transgender Americans would be “defined out of existence” and no longer protected from gender discrimination in federally funded education programs. In 2020, the Trump administration removed the Obama administration’s expanded definition of discrimination under Section 1557 of the ACA. This change meant that discrimination would no longer be inclusive of stereotyping and gender identity. Just a few days later, the U.S. Supreme Court affirmed workplace protections for LGBTQ+ people in its Bostock v. Clayton County decision, which solidified the interpretation of sex discrimination as including discrimination based on sexual orientation and gender identity—and made clear that the Trump administration’s definition of discrimination violated federal civil rights law.

In accordance with broader efforts to ensure true nondiscrimination, the Biden-Harris administration must restructure and create avenues of oversight in HHS’s OCR. Inclusive gender language must be solidified not only in Section 1557 but also in all regulations and policies stemming from HHS. Specific protections for transgender populations seeking health care must be made a priority as well.