WASHINGTON — Thousands of healthcare providers and eight states are challenging a new federal rule that requires doctors to perform gender transition procedures or treatments even on children.
The latest transgender directive from the Obama administration mandates physicians carry out such gender-altering measures even if they believe they could prove harmful or would violate their religious and ethical beliefs. Healthcare providers who refuse to abide by the regulation might face imposing fines and the loss of their jobs.
The transgender mandate from the Department of Health and Human Services (HHS) follows a May directive from the Departments of Education and Justice that instructed public schools and universities to permit transgender students to use the restrooms and locker rooms of their gender identity instead of their biological sex. While that guidance does not have the authority of law, it implicitly threatens the loss of federal aid if a school does not obey.
Ethicist Russell Moore, who opposes the transgender school directive, expressed opposition to the HHS mandate as well.
“Though confusion over gender and sexual identity is real and should be met with compassion, it would be a travesty for the federal government to steamroll consciences in the name of ideology,” said Moore, president of the Ethics & Religious Liberty Commission.
“My hope is that this federal mandate is repealed, and neither children nor their doctors are made pawns of a political ideology,” said Moore in written comments.
A Christian association of more than 10,000 physicians and a Roman Catholic hospital system asked a federal court Oct. 21 in Wichita Falls, Texas, to block enforcement of the HHS regulation, an implementation of the 2010 health-reform law that became effective July 18. They joined with the eight states in the motion for the court to issue at least a preliminary injunction against the rule.
In their motion, the challengers contend the HHS regulation violates the U.S. Constitution, including the First Amendment’s freedom of speech clause, and federal laws, including the Religious Freedom Restoration Act.
The rule “forces doctors and hospitals to perform controversial and potentially harmful medical procedures that purport to permanently alter an individual’s sex — even when doing so would violate a doctor’s religious beliefs and medical judgment, and even when the government’s own programs exclude the procedures as potentially harmful,” they say in the motion.
HHS exempted the federal government’s Medicare and Medicaid programs from the regulation’s requirement because its panel of experts said the literature “is ‘inconclusive’ on whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria.” Gender dysphoria refers to the discomfort a person may feel with his biological sex.
The rule applies to all private doctors, healthcare providers and health insurance plans that accept federal funding, including Medicare and Medicaid, but does not provide a religious exemption to conscientious objectors. It apparently would affect more than 900,000 physicians and virtually all hospitals. Foes of the regulation estimate it will cost citizens and healthcare providers nearly $1 billion.
As it did in its guidance to schools, the Obama administration redefined “sex” in the HHS rule to include gender identity, which it describes as “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,” according to the motion.
By redefining sex to include gender identity and declaring it is sex discrimination to refuse to perform gender transition procedures, “Thus, with a single stroke of the pen, HHS has created massive new liability for thousands of doctors unless they cast aside their convictions and perform procedures that can be deeply harmful to their patients,” the motion says.
Lori Windham, senior counsel of the Becket Fund for Religious Liberty, said in a written release, “It is absurd for the government to think it can better decide what is best for a child over parents or a medically trained professional. Doctors should be free to use their best medical judgment and do what is in the best interest of a child, free from political agendas and interference by bureaucrats.”
The Becket Fund is representing the rule’s challengers, which consist of the Christian Medical and Dental Associations; the Franciscan Network, a group of Catholic hospitals; and the states of Arizona, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, Texas and Wisconsin.
More than 45 members of the U.S. House of Representatives sent an Oct. 6 letter to HHS Secretary Sylvia Burwell expressing their concerns about the regulation and asking her to reply to a dozen questions.
The Human Rights Campaign — the country’s largest gay and transgender rights organization — applauded the rule. President Chad Griffin said in a written statement the regulation “is critical to help end discrimination against transgender and gender nonconforming people in healthcare and insurance.”
A new website started in opposition to the HHS rule — www.transgendermandate.org — reports two studies show overwhelming numbers of children who report gender dysphoria grow out of that discomfort and live healthy lives despite not having surgery or life-long hormone treatments. One study showed this to be true in 77 to 94 percent of children and another in 73 to 88 percent of children.
On Oct. 18, federal judge Reed O’Connor, who serves in the Wichita Falls, Texas, district, declined to narrow a nationwide injunction that he issued against the Obama administration’s transgender directive to schools.
— by Tom Strode | BP