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New proposed HHS rule to remove gender identity

Religious liberty and pro-life advocates have praised a newly proposed federal regulation to revise an Obama administration rule that required doctors to perform gender transition procedures as well as abortions.

The Department of Health and Human Services (HHS) issued a proposed regulation May 24 to rescind a 2016 rule that defined discrimination “on the basis of sex” to include gender identity and abortion. The redefinition of “sex” by the Obama-era HHS described gender identity 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.”

Emilie Kao, a specialist in religion and civil society at the Heritage Foundation, said the Obama administration’s rule “would have forced physicians to offer sex-reassignment procedures and abortions despite strong ethical and medical concerns. No American should be forced to violate deeply held beliefs, especially in hotly debated issues in health care.”

Mike Chupp, chief executive officer designate of the Christian Medical Association, welcomed the intent of the new rule and said in a written release, “We physicians know that prescriptions and medical procedures differ based on biological sex and that we must base our medical decisions on objective biology — not ideology.”

Ethicist Russell Moore and other religious freedom or pro-life leaders applauded the new rule’s protection of conscience rights and faithfulness to congressional intent in passing the Affordable Care Act, the 2010 health-care law the regulation helps implement.

Moore, president of the Ethics & Religious Liberty Commission (ERLC), thanked HHS “for restoring common sense and a natural reading of the English language to this regulation.”

“The previous administration’s rule here was beyond troubling,” Moore said in an ERLC news release. “The previous rule lorded over consciences irresponsibly with a regulatory fiat disconnected from the legislation approved by the people’s elected lawmakers.”

Health care, Moore said, “should be protecting and honoring human life, including that of unborn children, not endangering it. We should also respect the consciences of nurses and physicians not to be forced to participate in taking innocent human life.”

The 2016 HHS rule mandating the performance of and insurance coverage for gender transitions — even on children — and abortions never took full effect. A federal judge in Texas granted a nationwide injunction against the regulation, which lacked conscience protections for health-care workers who have religious or ethical objections to performing such procedures. A federal court in North Dakota also blocked enforcement of the rule, which applied to all private doctors, healthcare providers and health insurance plans that accept federal funding.

The newly proposed regulation “would apply Congress’s words using their plain meaning when they were written, instead of attempting to redefine sex discrimination to include gender identity and termination of pregnancy,” HHS said in a fact sheet issued May 24. The proposal would return “to the government’s longstanding interpretation of ‘sex’ under the ordinary meaning of the word Congress used,” according to the fact sheet.

The Trump administration’s Department of Justice has said in court the federal government takes the position that “sex” refers to biological sex. The U.S. Supreme Court announced April 22 it would consider in its next term whether federal, non-discrimination protections regarding “sex” cover people who identify as gay or transgender.

Planned Parenthood — the country’s leading abortion provider — and advocates for lesbian, gay, bisexual and transgender (LGBT) rights criticized the proposed rule.

Leana Wen, president of Planned Parenthood, called the proposal “yet another attack on women and [LGBT] people from the Trump-Pence administration — populations that already face discrimination and limited access to care. Health care is a human right for all, and no one should be denied that right because of who they are.”

The new rule would save about $3.6 billion over the 2016 regulation in its first five years, according to HHS.

— by Tom Strode | BP

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