Analysis, LGBTQ+, Life and Living, Opinion

Ahead of State of the Union, Here Are Four Big Actions the Biden-Harris Administration Can Act on This Year to Improve LGBTQ+ Equality

Proposed Four Rulemaking Actions Changes Would Address Nondiscrimination Protections

by Delphine Luneau 

Washington, D.C.-(ENEWSPF)- As President Joe Biden prepares to deliver his annual State of the Union address on Thursday, the Human Rights Campaign (HRC) — the nation’s largest lesbian, gay, bisexual, transgender, and queer (LGBTQ+) civil rights organization — is highlighting four rulemaking actions that the Biden-Harris administration can take this year to advance LGBTQ+ equality, thereby fulfilling promises to a community that is under constant legislative threat.

Taking these steps would further extend the administration’s record as the most pro-LGBTQ+ administration in history. The individual rules stand to make real improvements in the lives of everyday people.

The proposed four rulemaking actions, which are in various stages of the rulemaking process, would:

  • Clarify and strengthen nondiscrimination protections for gender identity and sexual orientation under Section 1557 of the Affordable Care Act (Department of Health and Human Services)
  • Make clear that nondiscrimination protections under Title IX include sexual orientation and gender identity in federally funded educational settings (Department of Education)
  • In a separate rulemaking process from the above, spell out the application of nondiscrimination protections under Title IX concerning school athletics (Department of Education)
  • Require that Veterans Affairs hospitals cover and provide gender-affirming healthcare for transgender veterans (Department of Veterans Affairs)

“LGBTQ+ people are powerful and resilient, but from access to health care to sports participation to classroom discrimination, members of the community, especially transgender people, are under attack,” said Human Rights Campaign President Kelley Robinson. “The Biden-Harris administration can still do a great deal to stem that flood of hate and discrimination, and in the process make life measurably better for our community.”

Major Four Proposed Rulemaking Actions Pending Before Federal Departments

Nondiscrimination Protections Under the Affordable Care Act: 

In July 2022, the Department of Health and Human Services issued a notice of proposed rulemaking. These would clarify and strengthen the ACA’s nondiscrimination provisions. If finalized as proposed, the updated regulation implementing Section 1557 of the ACA would provide explicit protections based on sexual orientation and sex characteristics. The updated regulation would also improve protections for gender identity, which is already enumerated.

Title IX Nondiscrimination Protections (In Education Settings): 

This proposed regulation will add sexual orientation and gender identity as enumerated protected characteristics within the Title IX regulation. The proposed rule would reverse the May 2020 changes to Title IX that limited federally funded educational institutions’ obligation to address sexual harassment and assault. The updated rule would also reinforce protections based on sexual orientation and gender identity. Even before the final regulations on the implementation of Title IX, LGBTQ+ students are legally protected in federally funded educational programs.

Title IX Nondiscrimination Protections (In Scholastic Athletics Settings):

The Department of Education proposed this rule in April 2023, clarifying that blanket bans on the participation of transgender students violate Title IX.

Health Care for Transgender Veterans: 

Veterans Affairs Secretary Denis McDonough announced in 2021 that the administration would move to offer gender-affirming surgical services for transgender veterans. The Department of Veterans Affairs has yet to launch the rulemaking process for this proposal. It must publish the proposed rule text and open a public comment period.

What’s at Stake: Waves of Legislative Attacks Across the Country Target LGBTQ+ People

Anti-Trans Health Care Laws: 

Since 2021, 23 states have passed laws banning access to best-practice, medically necessary health care for transgender youth. As reported by The Williams Institute, there are more than 300,000 high school-aged (ages 13-17) transgender youth in the United States today. Many of these need gender-affirming care. According to the Kaiser Family Foundation, 38% of trans youth live in states that limit their health care access.

Some lawmakers have also signaled a willingness to go after health care for trans adults as well. Policies in states such as Florida have already led to the interruption of some people’s care. In an online conversation between conservative lawmakers, Republican Michigan state Rep. Josh Schriver said, “In terms of endgame, why are we allowing these practices for anyone? If we will stop this for anyone under 18, why not apply it for anyone over 18?”

Anti-LGBTQ+ Education Laws: 

LGBTQ+ students, educators, and families have been under relentless legislative assault over the past few years. Curriculum censorship laws have been passed in 13 states, including nine states that have passed forced student outing laws and five states that have passed “Don’t Say LGBTQ” laws.

Anti-Trans School Sports Laws: 

Anti-equality lawmakers in state legislatures have been incredibly aggressive in targeting trans youth. They primarily target those who want to participate in educational sports activities with their friends and classmates. They want to be on teams consistent with their gender identity. Currently, 24 states have laws on the books preventing trans youth from playing.

The Human Rights Campaign is America’s largest civil rights organization. It works to achieve equality for lesbian, gay, bisexual, transgender and queer people. HRC envisions a world where LGBTQ+ people are embraced as full members of society.