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Trump Administration Proposes Revision Of Obama-Era Definition Of Sex Discrimination

HHS proposed a new rule that would remove ‘gender identity’ and ‘termination of pregnancy’ from the 2016 rule’s definition of ‘on the basis of sex.’


On Friday, the U.S. Department of Health and Human Services (HHS) proposed a new rule that would revise the definition of discrimination “on the basis of sex” under Section 1557 of the Affordable Care Act to no longer include “gender identity” and “termination of pregnancy.”

With the passage of the ACA, the law directed HHS in Section 1557 to apply existing civil rights laws to health care, including Title IX, which prohibits discrimination on the basis of sex in federally funded programs. In 2016, the Obama administration’s HHS redefined discrimination “on the basis of sex” to include “termination of pregnancy” and “gender identity,” which they defined as one’s perception of being “male, female, neither, or a combination of male and female.”

Consequently, religious organizations challenged the ruling in 2016, and a federal court put the rule under injunction, prohibiting HHS from enforcing it. Lawsuits are ongoing in several states, challenging the Section 1557 definition. A complaint filed in the U.S. District Court for the Northern District of Texas argues that “by redefining a single word used in the Affordable Care Act…HHS has created a massive new liability for thousands of healthcare professionals unless they cast aside their medical judgment and perform controversial and even harmful medical transition procedures.”

Now the Trump administration’s HHS wants to reverse the definition of “on the basis of sex” to be congruent with the definition used by statutory law and other federal agencies, including the Department of Justice. Roger Severino, director of HHS’s Office for Civil Rights, said the plain meaning of the law HHS is tasked with enforcing does not match the Section 1557 definition.

“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” he said. “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives. The proposed rule would accomplish both goals.”

The new proposed rule would also remove the phrase “termination of pregnancy,” because that fails to include Title IX religious and abortion exemptions. Instead, HHS is proposing to use the same language as Congress, which states that, “Nothing in this chapter shall be construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion.”

Earlier this month, HHS announced a new rule protecting conscientious objections for health-care providers whose religious beliefs conflict with procedures such as abortion or assisted suicide. Critics of Friday’s proposed rule argue this will allow health-care providers to discriminate against transgender patients.

Severino said HHS’s goal is to further the health and well being of all Americans, and that this rule does not change that.

“The rules have to be done in concert with existing law. It does not mean that entities are in any way restricted in providing health care,” he said. “This rule does not go in and tell people how to practice medicine. It is about non-discrimination.”