Biden admin. omits Obamacare transgender provisions from nondiscrimination rule

In a surprise move this week, the Biden administration omitted language that would have included “gender identity” and “sexual orientation” as specifically protected categories from the final version of an update to Obamacare nondiscrimination provisions, as the Washington Examiner reports.

In doing so, the administration essentially discarded its own proposal from earlier this year in which those terms would have been added to the categories of race, color, national origin, sex, age, and disability, which already enjoy special status when it comes to prohibitions on discrimination in federally funded healthcare programs.

The Biden proposal would, practically speaking, have restored sexual orientation and gender identity protections put in place during former President Barack Obama’s administration and which were subsequently removed during the tenure of former President Donald Trump, as Roll Call noted.

Also affording a degree of relief to religious liberty advocates across the country was the administration’s decision not to include a proposal which would have prevented insurers from restricting coverage for certain health benefits based on gender identity when treating gender dysphoria if clinical evidence suggests transgender patients require it.

This would have meant, for example, that if an insurance carrier covered hormone treatment in the context of a non-transition-related case, the plan would also have had to cover the same treatment for someone suffering from gender dysphoria. To not do so, according to the abandoned proposal, would presumptively amount to prohibited discrimination.

Religious liberty advocates had long expressed concern that the rule would have forced carriers to pay for gender transition services of all sorts, regardless of their moral or religious objections.

Rachel Morrison of the Ethics and Public Policy Center described the administration’s decision as something of a shock, telling the Examiner, “CMS’s decision to drop its plans to mandate insurance coverage of irreversible and sterilizing medical and surgical gender transition procedures, including for children, is huge.”

“For an agency to completely abandon a proposal at the final stage, especially one that aligns so closely with the administration’s priorities, is practically unheard of,” Morrison added.

It is worth noting that the final version of the rule left the door open for future adjustments, saying that the sexual orientation and gender identity language will be revisited “at a later time,” but at least for now, common sense – or panicked political pragmatism from a rapidly sinking administration – seems to have won the day.