Proposed new healthcare regulations threaten the religious liberty, freedom of conscience, and independent medical judgment of healthcare professionals. On September 8, 2015, the Office for Civil Rights (OCR) in the Department of Health and Human Services (HHS) published a notice of proposed rulemaking that would implement certain nondiscrimination provisions of the Patient Protection and Affordable Care Act (ACA, or Obamacare) in ways that Congress never intended—and never could have imagined.
As we explain in a new Heritage Foundation report, the proposed regulations would create serious conflicts of conscience for many organizations, hospitals, physicians, and other individuals involved in healthcare. By prohibiting differential treatment on the basis of “gender identity” in health services, these regulations propose to penalize medical professionals and healthcare organizations that, as a matter of faith, moral conviction, or professional medical judgment, believe that maleness and femaleness are biological realities to be respected and affirmed, not altered or treated as diseases.
The proposed regulations create special privileges based on gender identity that will lead to unreasonable and costly litigation for physicians, hospitals, insurers, and others involved in healthcare. They would effectively require controversial procedures, such as “sex-reassignment” surgery, that respected medical professionals argue have not been proven to be effective in treating serious mental health conditions. Rather than respect the diversity of opinions on sensitive and controversial healthcare issues, the proposed regulations endorse and enforce one view.
Redefining “Sex” to Include Gender Identity and Possibly Sexual Orientation
Section 1557 of the Affordable Care Act (ACA) guarantees that no individual can be denied benefits in a health program that is either federally run or federally funded because of their membership in well-established categories of civil rights law, including race, color, national origin, sex, age, or disability. As passed by Congress, Section 1557 of the ACA does not create special privileges for new classes of people or require insurers and physicians to cover or provide specific procedures or treatments. The OCR, however, interprets Section 1557 as if it does.
The OCR’s proposed regulations redefine discrimination on the basis of “sex” to include “sex stereotyping,” “gender identity,” and “termination of pregnancy,” among other things. Under these guidelines, if a covered physician administers treatments or performs surgeries that can further gender transitions, that physician must provide them for gender transitions on the same terms, and insurance must cover it, regardless of the independent medical judgment of the physician. Furthermore, the OCR has proposed no religious accommodation or exemption to its gender identity mandate or any other aspect of its proposed regulations.
Thus, the regulations propose to force many physicians, hospitals, and other healthcare providers to participate in sex-reassignment surgeries and treatments, even if it violates their religious beliefs or their best medical judgment. Moreover, because they apply so broadly, the regulations would also force employers, individuals, and taxpayers to fund coverage for such procedures even if doing so conflicts with their sincere beliefs.
Scope and Impact of the Proposed Regulations
The proposed regulations would apply to any “health programs or activities any part of which receives Federal financial assistance administered by HHS” as well as any health programs or activities administered by HHS or those established under Title I of the ACA, including federally facilitated and state-based insurance exchanges.
This includes any “hospital, health clinic, group health plan, health insurance issuer, physician’s practice, community health center, nursing facility, residential or community-based treatment facility, or other similar entity” that receives HHS funds.
- approximately 133,000 healthcare facilities;
- “almost all practicing physicians in the United States . . . because they accept some form of Federal remuneration or reimbursement”;
- all state Medicaid programs; and
- all private insurers that receive any type of federal financial assistance or whose products are purchased with the help of a federal subsidy on an Obamacare exchange. Such insurers must make all of their health insurance products comply with the proposed regulations.
Because the federal government now subsidizes and manages such a large part of the medical insurance market, the proposed regulations would make it nearly impossible for private employers and individuals to find a health plan that does not cover gender transition treatments and procedures. It would also make it nearly impossible for medical professionals to work free from these regulations.
Reasonable Judgments about Biology Are Not “Discriminatory”
Many people reasonably believe that maleness and femaleness are objective biological realities that are integral to who we are as human beings. On the basis of religious teachings, moral reasoning, scientific evidence, and medical experience, many have strong grounds to hold that one’s sex is an immutable characteristic that should be respected, not rejected or treated as a disease. Accordingly, many involved in providing medical care and those enrolled in health insurance plans have serious objections to participating in or paying for sex-reassignment surgeries or gender transitions. Yet the regulations would label these kinds of reasonable beliefs as “discriminatory” and seek to forbid their being followed in the coverage or provision of healthcare services.
The OCR nevertheless argues that Section 1557’s uncontroversial bar on “sex discrimination” should be redefined controversially to cover gender identity and possibly sexual orientation. But differential treatment based on actions related to gender identity or sexual orientation does not constitute “sex” discrimination under a plain reading of Section 1557, and no evidence indicates that Congress departed from the common, objective definition of sex when drafting Section 1557.
Without clear congressional authorization, the OCR is not justified in replacing the commonsense understanding of sex as a permanent reality grounded in biology with its view that sex is something merely “assigned at birth” and that a person’s gender may actually be “neither, both, or a combination of male and female,” regardless of biology, and based solely on one’s subjective “internal sense of gender.”
The Unsettled Question of Proper Treatment of Gender Dysphoria
Serious concerns raised by respected physicians about the propriety of sex-reassignment operations should give HHS and the OCR pause before forcing individuals, physicians, hospitals, and insurers to participate in or cover such procedures. As we explain in our new report, there are a variety of reasonable medical opinions about the best treatment for gender dysphoria—a deep-seated desire to appear and be treated as a member of the opposite sex. Permanently altering, resecting, or amputating well-functioning organs of the human body is a controversial form of treatment. The federal government should not take sides in these debates through unaccountable agency action and then coercively impose that judgment on all medical professionals.
Paul McHugh, MD, University Distinguished Service Professor of Psychiatry at the Johns Hopkins University School of Medicine and former Psychiatrist-in-Chief at Johns Hopkins University Hospital, has written extensively about the serious medical and psychological questions surrounding sex-reassignment surgery. When Dr. McHugh arrived at Johns Hopkins in the 1970s, the hospital had become one of the leading centers for sex-reassignment surgery in the country. Yet few follow-up studies were being conducted with patients receiving sex-reassignment operations as treatment for gender identity disorder (now called gender dysphoria in the Diagnostic and Statistical Manual of Mental Disorders).
McHugh encouraged Jon Meyer, who was a colleague, psychiatrist, and psychoanalyst, to conduct research on the psychological well-being of patients after sex-reassignment surgery to see if the procedure led to any improvements. The results, as McHugh describes them, left much to be desired:
[Meyer] found that most of the patients he tracked down some years after their surgery were contented with what they had done and that only a few regretted it. But in every other respect, they were little changed in their psychological condition. They had much the same problems with relationships, work, and emotions as before. The hope that they would emerge now from their emotional difficulties to flourish psychologically had not been fulfilled. We saw the results as demonstrating that just as these men enjoyed cross-dressing as women before the operation so they enjoyed cross-living after it. But they were no better in their psychological integration or any easier to live with.
Seeing little to no positive impact on the psychological health of transgender adults, McHugh could not justify continuing to surgically alter or remove healthy and fully functioning organs at the patients’ requests. McHugh concluded that Johns Hopkins’s practice of sex-reassignment surgeries, instead of helping patients, “was fundamentally cooperating with a mental illness,” and the hospital stopped prescribing and performing the procedure.
Concurring with the observations made at Johns Hopkins, a 2011 long-term study of individuals who underwent sex-reassignment surgery documented sustained mental hardships of transgender individuals. Conducted over a thirty-year period in Sweden, the study found that ten to thirty years after sex-reassignment surgery “the most striking result was the high mortality rate,” due in significant part to post-operative transgender individuals having suicide rates nearly twenty times higher than their peers.
McHugh addressed the question of proper treatment in the context of civil rights:
policy makers and the media are doing no favors either to the public or the transgendered by treating their confusions as a right in need of defending rather than as a mental disorder that deserves understanding, treatment and prevention. . . .
Claiming that this is [a] civil-rights matter and encouraging surgical intervention is in reality to collaborate with and promote a mental disorder.
The proposed regulations make no mention of the professionals who argue that there are serious medical and psychological concerns surrounding sex-reassignment surgery and gender-transition treatments. Yet both the preamble and the proposed regulations appear to operate on the presumption that the question of sex-reassignment surgery is settled, even though respected physicians and researchers believe it is not the proper treatment for gender dysphoria.
Whether or not practitioners agree with Dr. McHugh and other medical professionals’ concerns about such procedures, they should retain the freedom to practice medicine according to their best judgments without governmental penalty.
Yet Another Example of Regulatory Overreach Under Obamacare
Section 1557 of the ACA is meant to extend existing protections against discrimination in federal programs to healthcare or health insurance programs that receive federal funds or are run by the federal government. The healthcare law does not create special privileges, new protected classes, or new rights to particular procedures. The proposed regulations are therefore unnecessary and outside the proper scope of agency rulemaking. The OCR has nevertheless proposed another regulatory scheme under Obamacare that will inject Washington bureaucrats into intimate medical decisions without adequate justification.
Medical professionals should remain free to operate according to their best medical judgments. No American should be forced to violate his or her moral and religious beliefs, especially in morally fraught issues in healthcare. Individuals, employers, and all Americans should be able to choose healthcare and health insurance that best fits the needs of their families and respects their beliefs. Likewise, the federal government should not force taxpayers to subsidize medically and ethically controversial procedures. Yet the proposed gender identity mandate would violate all of these principles.
This is not the first time, nor likely to be the last, that federal agencies have used the power given to them under Obamacare to promulgate rules that trample on the conscience rights of Americans. Just a few weeks after this proposed rule was published, the Supreme Court agreed to hear numerous cases challenging a different Obamacare regulation that forces religious nonprofits to provide coverage of abortion-inducing drugs and devices, contraception, and sterilization in their employee health plans—under threat of heavy fines. By centralizing control of healthcare decisions in the hands of unaccountable bureaucrats and forcing individual citizens to obtain government-approved insurance, the sweeping healthcare law poses an unprecedented and profound threat to the liberty of Americans.
To truly protect individual liberty and freedom of conscience, and fully respect the medical independence of physicians, Obamacare must be repealed. Patient-centered healthcare reform that puts decision-making back in the hands of individuals, families, and physicians would lower costs, increase access, and respect the freedom of conscience of both consumers and medical providers.
Roger Severino is director of the Richard and Helen DeVos Center for Religion and Civil Society, of the Institute for Family, Community, and Opportunity, at the Heritage Foundation. Ryan T. Anderson, the Editor of Public Discourse, is the William E. Simon Senior Research Fellow at the Heritage Foundation and author of Truth Overruled: The Future of Marriage and Religious Freedom.