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Redefining “Sex” in the Transgender Debate

On August 23, doctors, hospitals and five states filed a lawsuit [1] against the government, challenging a new regulation [2] implementing Obama’s Affordable Care Act (Obamacare). The new rule requires physicians who accept federal funds to perform transgender surgeries on children and adults, even if doing so conflicts with a physician’s professional medical judgement or belief that such a procedure would be harmful, dangerous or not in the best interests of a patient’s health.

The Plaintiffs in the case, Franciscan Alliance, Inc., v. Burwell, are Franciscan Alliance, Inc., Specialty Physicians of Illinois, LLC, the Christian Medical & Dental Associations and the states of Texas, Wisconsin, Nebraska, Kentucky and Kansas.

Redefining “Sex”

The new rule, finalized by the Department of Health and Human Services (HHS) in May, redefines the word “sex” for Obamacare’s anti-discrimination statute.

Plaintiffs point out that the term “sex” is used by Congress in federal laws to “refer to an individual’s status as male or female, as determined by a person’s biological sex at birth.” However, this new rule redefines “sex” – without Congressional approval – to include “an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.”

The rule expands the definition of sex to include “gender identity,” stating that the “gender identity spectrum includes an array of possible gender identities beyond male and female.”

This was not the definition of “sex” when Obamacare was reviewed and approved by Congress in 2010. In fact, all proposed legislation redefining “sex” this way has been specifically and repeatedly rejected by Congress. In addition, dozens of attempts to amend the Civil Rights Act to include “sexual orientation” and “gender identity” from 1974 to the present have all similarly been rejected. Furthermore, federal courts have also repeatedly ruled against efforts to redefine sex.

Physicians And Hospitals

Under the rule, a doctor would be charged with illegal discrimination for declining to perform a transgender procedure performed in other contexts. For example, if a doctor performs a hysterectomy or a plastic surgery in other contexts, he must also provide it in transgender cases, even if it is medically harmful to the patient—and thus in direct conflict with the Hippocratic Oath to “do no harm.” Not to perform the procedure would be labeled as discrimination.

Plaintiffs argue that these procedures carry severe medical risks and can result in permanent, long-term physical and emotional consequences.

These consequences can be even more detrimental and complicated for children. Research [3] shows that 77-94% of children experiencing gender dysphoria will grow out of their dysphoria naturally. Physicians should be free to advise parents and patients accordingly and to perform appropriate treatment based on their own medical judgement, not by government decree.

For many doctors, such as plaintiff Franciscan Alliance, it is also against their religious beliefs to perform a procedure on a patient that the doctor knows or believes to be harmful. But there is no religious exemption in the new rule.

The new rule will apply to all doctors and hospitals which accept federal funds including Medicaid and Medicare. As such, HHS estimates it will “likely cover…almost all licensed physicians” in America. Similarly, the new rule will also extend to virtually all hospitals in the country.

Insurance Companies

The new rule also requires private health insurance companies to cover transgender procedures. Tellingly, the government excludes itself from covering transgender procedures under Medicaid and Medicare because its own panel of medical experts [4] concluded that there is “not enough evidence to determine whether gender reassignment surgery improves health outcomes for [patients] with gender dysphoria.”

The Centers for Medicare and Medicaid Services (CMS) found [4] transgender procedures to be high risk with unclear, hotly-debated therapeutic value. Plaintiffs argue that it is hypocritical for the government to require private insurance companies to cover transgender procedures while excluding coverage from its own insurance programs.

Whose Power?

Under the new rule, doctors are not free to act and speak according to their professional medical judgement, moral conscience and religious beliefs. This is a violation of the First Amendment rights to religious freedom and freedom of speech, the Fifth Amendment rights to due process and equal protection, and the federal Religious Freedom Restoration Act.

Furthermore, under the Administrative Procedure Act (APA), an action by a government agency is unlawful if it is “contrary to constitutional right, power, privilege, or immunity; or in excess of statutory jurisdiction, authority, limitations or short of statutory right.”

The new rule violates the APA in two ways: (1) the HHS’ expansion of the definition of “sex” to include “gender identity” was unauthorized by Congress, and even contradicts Congressional decisions on this issue; and (2) it effectively seizes the authority of the States to regulate the medical profession and its medical facilities.

This transgression of state sovereignty invades the powers reserved to the States in the Tenth Amendment, running afoul of the Constitution’s principle of federalism.

Ultimately, Plaintiffs argue that this is a question of power: Can a government agency redefine “sex” without Congressional authority and inflict requirements on the medical profession, an area reserved to the jurisdiction of the states?