HHS Addresses “Transgender Mandate” in New Rule…but Supreme Court Redefines “Sex Discrimination”
July 2, 2020
by Jonathan Imbody
The U.S. Department of Health and Human Services (HHS) announced on June 12 that it had “finalized a rule under Section 1557 of the Affordable Care Act (ACA) that maintains vigorous enforcement of federal civil rights laws on the basis of race, color, national origin, disability, age, and sex, and restores the rule of law by revising certain provisions that go beyond the plain meaning of the law as enacted by Congress.”
CMDA and Becket Express Optimism
The Christian Medical & Dental Associations (CMDA) expressed optimism that the new HHS rule, which was influenced by a CMDA court case and buttressed by CMDA polling, will help protect medical judgment and the exercise of conscience in healthcare.
“Health professionals know they must base medical decisions on biology and science, not ideology,” said CMDA’s Executive Vice President for Bioethics and Public Policy and OB/Gyn physician Dr. Jeff Barrows. “Biological gender carries very significant health implications that a physician must be able to recognize in making treatment decisions. The freedom for a health professional to base decisions on the medical science regarding biological gender also carries conscience concerns that should not be overruled by politics or ideology.
“We are hopeful that this rule will help steer consideration of gender issues in healthcare back toward science and away from politics and ideology, back to the protection of professional medical judgment and the freedom to adhere to long-observed ethical and moral standards.”
Luke Goodrich, vice president and senior counsel at Becket—the firm that represents CMDA in its case against the “transgender mandate”—added, “No doctor should be forced to perform a procedure she believes would harm a patient. The new rule will help ensure that all patients receive top-notch care without forcing doctors to perform potentially harmful procedures in violation of their religious beliefs and medical judgment.”
CMDA Lawsuit and Polling Influenced New HHS Rule
The new HHS rule was influenced by a successful and ongoing CMDA and Franciscan Alliance lawsuit aimed at stopping the previous administration’s “transgender mandate” that had trampled medical judgment and nixed conscience objections over transgender procedures and prescriptions. The old rule had interpreted “sex discrimination” under Section 1557 of the Affordable Care Act to include not just biological sex but also termination of pregnancy and gender identity, which the old rule defined as “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.”
As Director of the Office for Civil Rights at HHS Roger Severino explained in announcing the new final rule, “HHS will continue to vigorously enforce federal civil rights laws prohibiting discrimination on the basis of race, color, national origin, disability, age, and sex in healthcare, as Section 1557 provides. HHS respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress. We are unwavering in our commitment to enforcing civil rights in healthcare.”
In its announcement, HHS highlighted the impact that CMDA’s successful lawsuit had on the rules, noting, “On December 31, 2016, a federal court preliminarily enjoined, on a nationwide basis the prior administration’s attempt to redefine sex discrimination in the 2016 Rule, concluding that the provisions were likely contrary to applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act.”
HHS also cited as rationale for its new rule CMDA’s national polling of faith-based health professionals that had been submitted to HHS during the public comment period on the proposed rule.
HHS observed that CMDA “commenters, however, cited a survey showing that 97% of responding faith-based medical professionals attest that they ‘care for all patients in need, regardless of sexual orientation, gender identification, or family makeup, with sensitivity and compassion, even when [they] cannot validate their choices.’ Thus, some commenters argue, the issue is not one of refusing to care for certain patients based on identity, but instead a matter of declining to participate in a discrete set of morally controversial procedures and treatments that are available elsewhere.”
CMDA’s polling also found that 91 percent said they would stop practicing medicine apart from conscience protection.
Supreme Court Redefines “Sex Discrimination”
While the HHS final rule highlighted the common understanding of the term “sex” as referring to biological male or female, the U.S. Supreme Court just a week later issued a decision reinterpreting “sex discrimination” in employment to include discrimination based on sexual orientation and gender identity.
According to the majority opinion, authored by Justice Neil Gorsuch, if any employer “fires an individual for being homosexual or transgender,” then the employer has fired that person “for traits or actions it would not have questioned in members of a different sex.” Thus, the employer has engaged in “sex discrimination” in violation of federal law.
In his dissenting opinion, Justice Alito warned that the ruling “is virtually certain to have far-reaching consequences.” In particular, Justice Samuel Alito noted that “[h]ealthcare benefits may emerge as an intense battleground under the Court’s holding,” because the Affordable Care Act “broadly prohibits sex discrimination in the provision of healthcare.”
One example of that issue is CMDA’s transgender mandate lawsuit. Winning the religious freedom aspect of that case now takes on even greater importance.
As Justice Alito noted, “[S]ome employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs.”
Call to Courage and Spiritual Battle
Clearly some of the foundations of our faith, medical science and reality itself are under attack in the courts and in our legislatures. We know from Scripture that spiritual forces lie behind attacks on God’s immutable truth and on the design of His creation.
Ultimately our enemy is not deceived legislators, activists or judges but the false ideas and spiritual forces of deception that have blinded eyes to the truth—truth that can set us free to live according to God’s design.
Pray for our country, our courts, our lawmakers and CMDA, that we might all conform our lives to God’s truth and follow His perfect path to human fulfillment and justice.
- Freedom2Care – CMDA’s project focused on freedom of faith, conscience and speech
- CMDA/Freedom2Care national polling – on conscience and compassionate care
- Final HHS Rule – PDF
- Factsheet on HHS rule – PDF
Why does Dr. Barrows refer to “biological gender”? It appears from the context he means “biological sex,” which we all understand. Gender, originally a grammatical or linguistic term, has taken on many varied and poorly defined meanings. But what is “biological gender”? If one is discussing biology, the question is the sex of the person or organism. “Biological gender” mixes a scientific term with a sociological or political one and does not clarify the discussion.
Mr. Imbody reveals nuances behind judiciary decisions and responses by both sides of the issues. It seems that the judiciary system and the media have conflated reactive and proactive actions. That is, reactive actions including firing an employee for non-employment actions or beliefs. Proactive actions would include decisions to hire or perform an activity consistent with the “doer’s” beliefs and world view.
Firing someone or inadequately providing medical care for someone based solely on that person’s belief system, as opposed to that person’s inconsistent actions, is clearly an injustice and inconsistent to loving others, including “enemies.” However, forcing someone to hire or perform services inconsistent with that person’s beliefs, world view and training is, in essence, involuntary servitude.
Kudos to CMDA for supporting freedom from involuntary servitude for physicians and all others.