Doctors, hospitals, and insurance companies may soon face lawsuits for treating male and female patients according to their biological sex, thanks to a health care rule finalized in May as part of the Affordable Care Act.
On the same day President Barack Obama announced his controversial transgender school bathroom policy last month, a somewhat more sinister mandate was finalized by the Department of Health and Human Services (HHS) with consequences for health care providers, insurance companies, and American taxpayers.
The rule contains an explicit definition of gender identity that states a person can claim to be male, female, neither, both, or some combination of the two, said Roger Severino, director of the DeVos Center for Religion and Civil Society at the Heritage Foundation.
“It’s now federal policy that you could be both male and female in some combination,” he said. “That’s a pretty radical statement, and impossible to know what it really means.”
If a medical doctor, based on biological evidence, sees a male patient, but the patient claims to be a female, the doctor must treat the patient as a female. Failure to do so could leave the doctor vulnerable to lawsuits, lost federal funding, and federal investigation by the Office of Civil Rights, the HHS arm implementing this policy.
Elective Surgeries Get Precedence Over Life-Saving Surgeries
The regulations provide an example of how a doctor could discriminate against a transgender patient, Severino said. If two people are both candidates for a hysterectomy, one a woman with uterine cancer and the other a woman who wants fewer woman parts to look more like a man but is otherwise perfectly healthy, the doctor could be found to be discriminating against the second woman by choosing to treat the woman with cancer instead. The rule states all the second woman would need to attempt to force the surgeon to perform an elective hysterectomy is a note from a psychologist affirming her desire to become a man, Severino said.
This essentially takes away a physician’s independent medical judgement, Severino said: “[doctors] shouldn’t be put in the position to violate their conscience or their medical judgment… Lawyers, not doctors, will decide if something is medically appropriate.”
According to HHS’ Office of Civil Rights, the rule (Section 1557) emanates from the nondiscrimination provision of the Affordable Care Act that prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities. The rule claims to build on federal civil rights laws like the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.
The rule will take effect on July 18. A HHS summary sheet describes the rule’s intent: “The rule makes clear that sex discrimination prohibited under Section 1557 includes discrimination based on an individual’s sex; pregnancy, childbirth, and related medical conditions; gender identity; and sex stereotyping. Individuals cannot be denied health care or health care coverage based on their sex, including their gender identity.”
Do a Sex Change Or Else
The rule applies to all medical professionals who receive at least one dollar of federal money, or money that’s administered by the federal government, one expert said. Even for insurance companies that offer several plans, if just one of those plans is on the federal marketplace all of the company’s plans must comply with Rule 1557.
Severino and Ryan T. Anderson, a senior research fellow at the Heritage Foundation, published an extensive report on Rule 1557 in fall 2015 during a review period between the HHS’ proposal of the rule and its final implementation. Among other things, it notes the regulations could open health-care professionals and insurers to extensive legal liability if they decline to provide or pay for sex transition treatments, even if they are deemed medically unnecessary or unwise. Yet the medical community is not settled on the best treatment for those suffering from gender dysphoria and seeking sex-eradication surgery or hormonal treatment, Severino said, so rules about how and when those medical treatments should be administered are premature.
Those who have studied the rule agree it is both extremely specific in some respects, such as its definition of gender identity, and extremely vague in other ways. For example, the consequences of a doctor’s decision not to treat a patient seeking to look like the opposite sex range from loss of federal funding to civil lawsuits to potential criminal investigation. Many doctors will likely be wondering if they’ll get sued for having and standing by their professional medical opinions.
We Don’t Care About Your Religion
The regulations also threaten the freedom and independence of health care professionals who “believe maleness and femaleness are biological realities to be respected and affirmed, not altered or treated as diseases,” the Heritage report states. People with religious beliefs that contradict this regulation have no legal options but compliance or filing lawsuits, said Matthew Kacsmaryk, a deputy general counsel at the First Liberty Institute.
“Before, we were dealing with a nebulous possible collision between a sexually revolutionized view of gender identity and the binary male/female view held by every Abrahamic faith: Jewish, Druze, Christian, Muslim, Mormon,” he said. But the new rule makes the collision inevitable: “The rule expressly states that sex stereotypes and illegal sex discrimination may be rooted in the binary view of the human species, that God created them male and female.”
The First Liberty Institute, along with nine other major religious and medical associations, published a coalition public comment objecting to the proposed rule last fall. It included suggestions for changing the mandate in response to HHS’s call for opinions after its preliminary draft was published, which Kacsmaryk said is on the Obama administration’s “bucket list” of aggressive sexual revolution items: “The administration and the rule are outside the reach of the next election, where they could be held to account for this radicalism.”
Unlike some mandates associated with Obamacare, this rule provides no provision or safeguard for religious persons or providers. A Catholic hospital system that tries to adhere to Roman Catholic teaching about humans being either male or female by refusing to perform a hysterectomy on a healthy woman who wants to become a man may be held in violation, Kacsmaryk said, because there are no exceptions for religious institutions in this rule. The only option is to sue, as Hobby Lobby and the Little Sisters of the Poor did over Obamacare’s requirement that employers pay for employees’ abortifacients.
“The burden shouldn’t be on the people to sue for their rights,” Severino said.
Rule Vague about Forced Abortions
After the rule was officially approved and announced May 13, several websites claimed the law’s lack of religious protections and inclusion of the phrase “termination of pregnancy” as a type of discrimination mean that all medical agencies that receive any kind of federal funding would be forced to perform abortions.
The coalition letter 10 religious and medical groups sent HHS last fall summarizes several reasons why the rule cannot legally force anyone to perform an abortion, citing earlier Affordable Care Act laws that do not mandate abortion coverage and the Weldon and Danforth amendments, which specifically address the right of health-care providers to refuse to perform abortions.
Despite standing federal law, Severino said the rule seems intentionally vague on this point.
“They just say ‘we know there’s a policy out there [that prohibits doctors from being forced to perform abortions], what we mean is it’s discriminatory to take into account termination of pregnancy,’” he said. “That’s why it’s scary.”
Rule 1557 is a major step by the Obama administration, Severino said.
“This is not diversity but displacement, the imposition of a different morality via administrative regulation,” Kacsmaryk said. “You must constantly affirm the sexual revolutionary view of the human person or you will be on the wrong side of federal law.”