The U.S. Department of Health and Human Services has announced that the agency will interpret federal civil rights law to include a ban on discrimination based on sexual orientation and gender identity, leading critics to say it could require hospitals and doctors to perform sex-change surgeries.

The HHS' Office for Civil Rights said it would interpret and enforce Section 1557 and Title IX's prohibitions on discrimination based on sex to include discrimination on the basis of sexual orientation and discrimination on the basis of gender identity.

Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age or disability in covered health programs or activities.

The move affirms that federal laws forbidding sex discrimination in health care also protect gay and transgender people. The Trump administration had defined "sex" to mean gender assigned at birth, thereby excluding transgender people from the law's umbrella of protection.

"Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences," HHS Secretary Xavier Becerra said Monday. "It is the position of the Department of Health and Human Services that everyone – including LGBTQ people - should be able to access health care, free from discrimination or interference, period."

As justification, HHS cited the 2020 U.S. Supreme Court decision Bostock v. Clayton County. In that case, the high court ruled that Title VII of the Civil Rights Act of 1964, which protects against employment discrimination, applies to sexual orientation and gender identity. 

The Supreme Court’s conclusion comes even though neither category (sexual orientation or gender identity) is mentioned explicitly in federal civil rights law.  

The HHS statement notes that while it will enforce this new interpretation, the agency will still “comply with the Religious Freedom Restoration Act” as well as “all other legal requirements.”

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