Discrimination in basic human services is an all too common experience for LGBTQ+ families – including in public education and healthcare. This is why we at Family Equality are excited to see the the Biden Administration proposing rules for the Department of Education and the Department of Health and Human Services that will protect children and families against discrimination.
These new rules are consistent with a Supreme Court ruling from 2020 called Bostock v. Clayton County, which ruled that federal civil rights protections apply to sexual orientation and gender identity. While some opponents of equality for LGBTQ+ people, have been fighting against attempts to enforce this ruling, the new rules will ensure that schools and health care providers that receive federal funding will not be able to discriminate based on sexual orientation and gender identity.
Biden administration looking for feedback
At this stage, the Administration is looking for feedback before finalizing the new rules, and the policy team at Family Equality wrote comments to express support and offer suggestions.
The Biden Administration’s new proposed rule for Title IX was announced on the 50th Anniversary of the landmark Title IX law which prevents schools that receive federal funding from discriminating based on sex and requires these schools to protect students from sex-based harassment. The proposed rule states that Title IX’s ban on sex-based discrimination and harassment applies to sexual orientation and gender identity. This means that schools cannot discriminate against LGBTQ+ students and families and have an obligation to make sure that their school is not a hostile environment for LGBTQ+ people.
The proposed rules would also ensure protections for pregnant and parenting students. This is very necessary in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization which stripped Americans of their constitutional right to abortion access.
What is Family Equality doing to help?
Family Equality submitted a comment supporting the new proposed rules related to Title IX and offered suggestions to help implement the rule to ensure that LGBTQ+ students and families in schools are informed of their rights and able to access the support that they need.
In July, the Department of Health and Human Services announced proposed rules to strengthen protections found in Section 1557 of the Affordable Care Act. Section 1557 prevents healthcare providers (including insurance companies) from discriminating based on race, color, national origin, sex, age, and disability.
The proposed rules confirm that 1557’s prohibition of discrimination based on sex includes sexual orientation and gender identity. It makes it clear that insurance companies cannot discriminate against individual seeking gender affirming care and protects LGBTQ+ parents from discrimination when they are seeking fertility or other reproductive healthcare.
Doctors can not refuse to treat a child of LGBTQ+ parents
Importantly, these rules expressly protect people from being discriminated against based on association, which would mean that a doctor could no longer refuse to treat the child of LGBTQ+ parents simply because of the sexual orientation or gender identity of the parents or caregivers. This would be a huge step forward in protecting the health and safety of children and would provide great relief to LGBTQ+ parents by ensuring that their children will not be denied important medical treatment.
Family Equality submitted a comment letter supporting these proposed rule changes and suggested some ways that the Department could clarify the language of the rule.
In light of the relentless attacks on LGBTQ+ students and families in schools and transgender youth seeking gender affirming care and the recent setbacks we’ve faced in access to abortion and reproductive healthcare, it is encouraging to see the Biden Administration take steps to ensure that LGBTQ+ people and families are included in important nondiscrimination protections. All families deserve equal access and no child should be denied an equal education or necessary health treatment.
The Biden Administration should move swiftly to finalize these rules and ensure that the millions of LGBTQ+ families in the United States will have access to the crucial lifeline of federal anti-discrimination protections.
— Nikhil Vashee, Director of Education Law and Policy, Senior Policy Counsel