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|Kelsey Harkness (@kelseyjharkness) at The Daily Signal|
Five states and a group of religiously-affiliated hospitals and physicians are suing the Obama administration over a federal mandate that forces doctors to perform gender transition procedures on adults and children against their medical judgment.
The lawsuit, filed Tuesday in a Texas federal court, attempts to roll back a rule imposed by the Department of Health and Human Services in May that expanded the interpretation of “sex” under the Affordable Care Act to include “gender identity.”
In doing so, the Obama administration added transgender people to the list of protected classes under the Affordable Care Act, which states that individuals can’t be denied certain federally-funded health benefits because of their “race, color, national origin, sex, age, or disability.”
The move was part of a broader push by President Barack Obama to further transgender rights in the U.S.
The implications of the HHS mandate are broad. By its own estimates, HHS said the rule would “likely cover almost all licensed physicians because they accept federal financial assistance.”
For example, HHS said a doctor “specializing in gynecological services that previously declined to provide a medically necessary hysterectomy for a transgender man would have to revise its policy to provide the procedure for transgender individuals in the same manner it provides the procedure for other individuals.”
“It’s a very rare moment in history when the government would force doctors to go against their conscience and their medical judgment and perform procedures that may be deeply harmful to patients,” said Luke Goodrich, a lawyer at the Becket Fund, which is representing Franciscan Alliance, a religious hospital network, and the Christian Medical and Dental Associations, two of the parties involved the lawsuit.
Also challenging the HHS mandate is Specialty Physicians of Illinois, along with the states of Texas, Wisconsin, Nebraska, Kentucky, and Kansas, which are all led by Republican governors.
Notably, the Obama administration does not require coverage of gender reassignment procedures under Medicare or Medicaid for children or adults because a government review of the clinical evidence available for gender reassignment surgery was inconclusive on whether it was helpful or harmful to patients with gender dysphoria.
“Based on a thorough review of the clinical evidence available at this time, there is not enough evidence to determine whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria,” a report from the Centers for Medicare and Medicaid Services stated.
Instead, decisions for transition-related surgeries under Medicaid are made individually on a case-by-case basis.
“So you have doctors reaching one conclusion, and then you have politically zealous bureaucrats in the Office of Civil Rights—a different branch of HHS—saying science be damned, every private health care provider in the country has to cover this stuff in their health insurance and the doctors have to perform it,” Goodrich told The Daily Signal. “It’s deeply hypocritical.”
The lawsuit challenging the HHS mandate was filed in the U.S. District Court for the Northern District of Texas, which is the same court that temporarily blocked the Obama administration’s bathroom mandate on Sunday.
In putting a halt to the policy that mandates public schools must open their restrooms, locker rooms, and showers to transgender students based on their gender identity instead of their biological sex, U.S. District Judge Reed O’Connor argued the administration overstepped its authority.
When HHS issued the new gender identity rule on May 18, the agency cited as authority the Obama administration’s bathroom mandate, whose legitimacy is now in question.
In the HHS mandate case, plaintiffs argue that the Obama administration curtailed the voice of the people in issuing such sweeping regulations, and didn’t follow standard rulemaking procedures under the Administrative Procedure Act and multiple other federal laws. This argument is similar to the one brought by the 13 states challenging the Obama administration’s bathroom mandate in the same Texas court.
Plaintiffs are also arguing that the HHS rules violate doctors’ ability to exercise their best medical judgement and their religiously-inspired desire to care for patients.
“The new mandate forces doctors to perform gender reassignment procedures on individuals including young children, even when those procedures may be physically and emotionally harmful and may violate the doctors’ faith and medical judgment,” Goodrich said.
“These organizations care for transgender individuals all the time in lots of different respects but they cannot in good conscience or in their own medical judgment do procedures that would be harmful, so they felt like they had to get relief from the new regulation.”
Jillian Weiss, executive director of the Transgender Legal Defense and Education Fund, suggested the lawsuit against HHS was unnecessary in a statement to The Associated Press.
“The only thing a doctor is obliged to do is treat all patients, including trans patients, with dignity and respect and to make treatment decisions free from bias,” Weiss said. “If a doctor has a sound, evidence-based, medical reason to delay transition care for a specific patient, that would be respected under the regulations.”
The Daily Signal sought comment from the Transgender Legal Defense and Education Fund, but they could not be reached.
The Daily Signal also contacted HHS, which refused to comment. HHS referred The Daily Signal to the Department of Justice, which also chose not to make a statement.
Read more from Kelsey Harkness (@kelseyjharkness) at The Daily Signal, a branch of the Heritage Foundation
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