This article will present a comprehensive analysis of anti-LGBTQ policies enacted under the Trump administration, Biden’s response to these homophobic and transphobic policies and what the NWHN would like to see next.
The 1557 Rule
On June 19th, 2020, Trump finalized changes made to Section 1557 of the Affordable Care Act. The 1557 rule prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in healthcare programs. Under the Trump Administration, sex-based protections were limited to a person’s assigned sex at birth. Roger Severino, former HHS Office for Civil Rights Director, explained reasoning for changing the rule: “When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform.”
The new rule allowed doctors to deny care to trandgender patients and interferes with a transgender person’s ability to access health insurance. Mari Brighe, a freelance writer and transgender woman, commented on the new rule, “We (transgender people) walk into any given health care situation not knowing whether doctors are going to treat us well, whether we're going to get high quality care, whether any given, random health care person is going to be terrible to us." The rule change disproportionately impacted Black trans people who not only experience transphobia when interacting with the healthcare system but systemic racism. To this point, Tia Sherèe Gaynor, a political science professor at University of Cincinnati, said, “it's layers of oppression — it's transphobia on top of racism on top of economic oppression."
Upon arriving in office, Xavier Becerra, the Secretary of Health and Human Services under President Biden, expanded the interpretation of sex-based discrimination to include gender identity and sexual orientation. The rule will now protect queer and transgender individuals from discrimination when accessing healthcare. Meaning, a doctor or insurance provider cannot deny care based on a person’s sexual orientation or gender identity. There is already significant amount of distrust between the LGBTQ+ community and the healthcare industry, so it is important for the current president to continuously affirm queer health protections.
Healthcare and Religious Freedoms
Former HHS Office of Civil Rights Director, Roger Severino, made it clear that his top priority as the Director of OCR was advancing religious freedoms. In May, 2019, Severino implemented a rule that would enable doctors or institutions such as religiously-affiliated hospitals to deny care if it conflicted with their religious beliefs. Under this rule doctors could deny services such as abortion, sterilization, hormone therapy or assisted suicide if they have relgious objection. Commenting on the purpose of this rule, Severino said, “This rule ensures that healthcare entities and professionals won't be bullied out of the healthcare field because they decline to participate in actions that violate their conscience, including the taking of human life.” The United States constitution makes it clear that religious freedoms are important and that the federal government has a vested interest in protecting those freedoms. But for many in the queer community, the phrase ‘religious freedoms’ is a dogwhistle used by savvy politicians who do not want to appear bigoted for restricting LGBTQ rights.
To counteract the overwhelming anti-LGBTQ sentiment that saturated executive policies under the Trump Administration, Biden is committed to having the most diverse cabinet in history. Biden appointed former Mayor of Southbend, Indiana, and presidential candidate Pete Buttigieg to be the Secretary of Transportation. Buttigieg made history, when he became the first openly-gay person to win electoral votes as a major-party presidential candidate. Dr. Rachel Levine, Pennsylvania’s former Secretary of Health, became the first openly trans federal officer to be confirmed by the senate. Levine is the current assistant secretary for health in the Department of Health and Human Services. On Levine’s Confirmation Biden said, “[Levine] will bring the steady leadership and essential expertise we need to get people through this pandemic — no matter their ZIP code, race, religion, sexual orientation, gender identity or disability — and meet the public health needs of our country in this critical moment and beyond." Biden also nominated Shawn Skelly, who is transgender, to be the assistant secretary of defense readiness, Sue Felton, a lesbian, to be the assistant secretary of defense for manpower and reserve affairs, and Gina Ortiz Jones, a lesbian, to become the next undersecretary of the Air Force.
Transgender Military Ban
In April of 2019, Trump implemented a transgeder military ban that effectively prohibited people who changed their assigned sex at birth to another sex from enlisting in the armed forces. According to BuzzFeed News, current active-duty service members could not be kicked out of the armed forces due to the grandfather clause. The ban also penalized active-duty service members, “who appear or act transgender by failing to meet the grooming, uniform and other military standards from their biological sex.” The Pentagon defended its enforcement of trasngender military ban by claiming that trasngender people had a “deficiency”. This claim was rebuked by the American Medical Association in an official statement: “The AMA has said repeatedly that there is no medically valid reason — including a diagnosis of gender dysphoria — to exclude transgender individuals from military service. Transgender service members should, as is the case with all personnel, receive the medical care they need. There is a global medical consensus about the efficacy of transgender health care, including treatment for gender dysphoria.”
In January, Biden repealed the transgender military ban. The executive order states: “It is my conviction as Commander in Chief of the Armed Forces that gender identity should not be a bar to military service. Moreover, there is substantial evidence that allowing transgender individuals to serve in the military does not have any meaningful negative impact on the Armed Forces." The new Secretary of Veteran’s Affairs also announced that the department is moving to include gender confirmation surgery through its health-care coverage. The National Center for Transgender Equality estimates that there are approximately 134,000 transgender veterans and 4,000 veterans would be interested in this surgery.
1964 Civil Rights Act
In 2019, the Trump Administration filed a brief with the Supreme Court, arguing that LGBTQ workers were not protected under the 1964 Civil Rights Act. Solicitor General Noel J. Francisco and other Department of Justice attorneys claimed the 1964 Civil Rights Act provides protections on the basis of race, color, relgion, sex and national origin but does not specify protections for sexual orientation. They argued that sex-based discrimination is specific to a person’s biological sex, assigned at birth. Under the Trump-era interpretation of the 1964 Civil Rights Act, an employer could discriminate against a queer or transgender person. Ultimately, in a 6-3 decision the Supreme Court concluded that sex discrimination, as outlined in the 1964 Civil Rights Act, can be extended to sexual orientation and gender identity.
Biden reaffirmed the Supreme Court’s decision in an executive order. The executive order states: “Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love… All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” The executive order empowers federal agencies to to enforce federal laws that prohibit discrimination on the basis of sexual orientation and gender identity. These protections extend to housing, employment, education, housing, health care, and credit.
As evidenced by the roundup detailed above, Biden has continuously affirmed his support for the LGBTQ+ community throughout his first six months in office. But - the LGBTQ+ community not only wants to recover the rights they lost under the Trump Administration, but to forge new, more permanent protections moving forward. The NWHN believes lawmakers and the Biden administration need to take 3 crucial steps towards protecting LGBTQ+ rights:
1. First, the senate needs to pass the Equality Act, a bill that would prohibit discrimination on the basis on sexual orientation or gender identity. 150+ grassroots organizations have announced their support for the Equality Act, and national organizations like the Human Rights Campaign and Freedom for All Americans have amplified calls to pass the bill on social media.
2. Second, Biden needs to fulfill his promise and protect LGBTQ+ couples from being discriminated against by federally funded foster agencies. In June, 2021, the Supreme Court ruled in favor of a Catholic foster agency that refused to work with same-sex couples. As a religious non-profit organization, the Supreme Court decided that the agency was within their First Amendment rights to deny service, but the Biden administration could prohibit non-religious, federally funded foster agencies from discriminating against LGBTQ+ couples.
3. Third, Biden needs to end discriminatory laws that prohibit LGBTQ+ individuals from donating blood. Organizations such as GLAAD and the HRC are dedicated to seeing the FDA lift unnecessary blood donation restrictions on the LGBTQ+ community. In April, 2020, the FDA changed the deferral period for men who have sex with men from 12 months to 3 months. The fight against LGBTQ+ discrimination is ongoing, and does not end with the conclusion of Pride Month. The LGBTQ+ community experiences discrimination 12 months a year, and therefore, policymakers need to address these issues all year.