The Health and Human Services Department has proposed a rule that would codify its nondiscrimination policies after years of partisan back-and-forth and court rulings.
The federal agency on Tuesday released a proposed rule that would ban discrimination within any HHS program, service or funding opportunity based on a person’s gender identity or sexual orientation.
The clarification would reinstate an Obama-era policy that was thrown out during the Trump administration as part of a broader partisan back-and-forth related to the definition of sex discrimination. The proposed rule is based on a 2020 Supreme Court rule that held that Title VII of the Civil Rights Act of 1964 banned discrimination based on sexual orientation and gender identity, not just biological sex.
The protections would extend to HHS’ Head Start program and those programs providing assistance to people experiencing homelessness, substance abuse treatment and prevention, community mental health services, and maternal and child health services, according to the agency.
The rule also would protect against discrimination based on age, disability, sex, race, color, national origin and religion. Organizations that have religious objections may seek an exemption, according to the proposed rule.
The Trump administration pushed back against the Obama-era rule in 2016, instead opting to define “sex” based on an individual’s biology at birth. That administration used the same interpretation under the Affordable Care Act’s nondiscrimination rule. At the time, critics warned removing the protections would undo social progress and put access to medical services at risk for people who are transgender.
A flurry of state laws in recent years has limited access to gender-affirming care, including puberty blockers, hormone therapy and surgeries, and criminalized providing these treatments. HHS announced its intention to reverse that policy in 2021 and formally proposed a rule in 2022.
The proposal would create a blanket definition of sex discrimination: “Discriminating against individuals in any of the programs, activities, projects, assistance, and services on the basis of sexual orientation or gender identity necessarily involves discriminating against them on the basis of sex.”