Revised HHS Regulations: Gender Surgeries Are Not a Human Right
A few days ago, the U.S. Department of Health and Human Services (HHS) finalized revised regulations, containing several elements that are important to women’s health, and to our long-term legal rights and interests. Below is WoLF’s summary and analysis of these new regulations.
The HHS regulations cover numerous topics not discussed below that are beyond the scope of WoLF’s primary organizational focus, and we take no position on those aspects. Additionally, we’ve seen a few odd social media posts falsely claiming that WoLF supports the totality of the new HHS regulation, from individuals and groups who appear to be motivated by their objection to WoLF’s work with conservatives. In fact, WoLF did not at the time have the capacity to submit formal comments to HHS about its proposed regulation, and has never previously taken a position on it. We wouldn’t take a position on any complicated major regulation when we lacked sufficient time to thoroughly investigate it, just for the sake of doing so.
BACKGROUND
The Affordable Care Act and the 2016 HHS regulations
In March 2010, former President Obama signed into law the Patient Protection and Affordable Care Act, popularly known as the ACA or Obamacare. The ACA prohibits sex discrimination by reference to Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972, among several other non-discrimination provisions. 42 U.S.C. § 18116. Title IX states:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . . .” 20 U.S.C. § 1681(a).
In June 2016, HHS working under Obama adopted regulations that include the following unprecedented interpretation of Title IX:
“On the basis of sex includes, but is not limited to, discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, and gender identity.” HHS, “Nondiscrimination in Health Programs and Activities,” 81 Fed. Reg. 31375 (May 18, 2016)(emphasis added).
HHS chose not to include “sexual orientation status alone” in its 2016 interpretation of “on the basis of sex” under Title IX, but said it would evaluate such discrimination claims based on whether “the evidence establishes that the discrimination is based on gender stereotypes.” Id. at 31390. At the same time HHS did prohibit discrimination on the basis of the “sex. . . of an individual with whom [an] individual or entity is known or believed to have a relationship or association.” Id. at 31472.
The “gender identity” and “termination of pregnancy” portions of the 2016 HHS regulations immediately attracted several lawsuits filed in federal courts by several healthcare providers and several states. Id. at 37163. Plaintiffs in those cases argued that the new regulations would require them to perform abortions or “gender transitions,” or to provide insurance coverage for those procedures, regardless of their religious objections and regardless of their own medical judgment.
Soon after, the court in one of those lawsuits issued an order prohibiting HHS from implementing the “gender identity” and “termination of abortion” language, finding that it exceeded the regulatory authority given to HHS in Section 1557 of the ACA, and further finding that this language was inconsistent with pre-existing religious exemptions relating to abortion in Title IX.
The new HHS regulations
In June 2019, HHS working under the Trump administration proposed to repeal and revise some elements of the Obama regulations, and the final revisions were published a few days ago, to become effective and enforceable on August 18, 2020. HHS, Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37179 (June 19, 2020).
As WoLF noted in its initial reaction to the announcement, this new regulation contains several elements that affect women and our rights. This post expands on the following issues:
HHS will not interpret the prohibition on sex discrimination to cover claims based on “gender identity.” Instead it will interpret sex “according to its original and ordinary public meaning,” which “refers to the biological binary of male and female that human beings share with other mammals.” Id. at 37178. This should help head off lawsuits aimed at forcing medical providers and insurers to provide or pay for medically-unnecessary and harmful and “gender transition” surgeries and exogenous hormones.
HHS will interpret the prohibition on sex discrimination to cover “women’s health issues including pregnancy, uterine cancer, and prenatal and postpartum services,” based on its reasoning that these conditions fall under “the ordinary and biological meaning of ‘sex.’” Id. at 37179-80.
HHS will not interpret the prohibition against sex discrimination to cover “termination of pregnancy.”
In addition, the 2020 regulation repealed the 2016 language concerning “association,” which would have covered same-sex associations. HHS also declined to interpret discrimination “on the basis of sex” in the new regulation to include discrimination specifically on the basis of sexual orientation. This goes against WoLF’s position that the expectation of heterosexuality is a sex-based assumption that falls within the sex-stereotyping framework set out in Price Waterhouse v. Hopkins. We’ve discussed this position in prior posts, it is confirmed in the recent Bostock ruling, and we stand by that position.
CONTEXT AND ANALYSIS
Section 1557 of the ACA did not contain a freestanding prohibition against sex discrimination; instead, it prohibited sex discrimination by reference to Title IX. Title IX itself prohibits discrimination on the basis of sex, not on the basis of “gender identity.”
But Title IX has also included an exemption for “religious organizations with contrary religious tenets” since its adoption in 1972 (20 U.S.C. § 1681), and it has required “[n]eutrality with respect to abortion” since 1988 (20 U.S.C. § 1688). Further, U.S. courts have consistently interpreted the First Amendment as providing some form of protection or neutrality as to religious beliefs and practice generally.
“Gender health care”
Many left-leaning organizations and media outlets decried HHS’ repeal of its “gender identity” regulation, largely based on a serious misunderstanding of both the regulation and underlying law. Some even breathlessly claimed, as did Women’s Place UK, for example, that “[t]his not about specific transgender health treatments, but about protection from discrimination in relation to any healthcare.” These claims are false and lack any support in either the text of the new HHS regulations, HHS’ extensive response to public comments, or the underlying public documents.
As HHS admitted in adopting its 2016 regulation, “[n]one of the commenters supporting a religious exemption asserted that there would be a religious basis for generally refusing to treat LGBT individuals for a medical condition, for example, refusing to treat a broken bone or cancer; rather, commenters asserted that the regulation should exempt faith-based providers from providing particular services, such as services related to gender transition, that are inconsistent with their religious beliefs.”
We found no evidence for the claim that these entities seek the right to deny people who claim to be LGB or transgender “any healthcare.”
Simply put, there is no general right in U.S. law for healthcare providers to deny service for arbitrary reasons. Further, claims of widespread discrimination on the basis of “gender identity” are overwrought.
In reality, gender proponents have been campaigning as early as 2008 to categorize “gender transition” surgeries and hormones and “gender affirming therapy” as basic or essential care, and to characterize the refusal to perform or pay for these things as motivated by prejudice and discrimination. Commenters who supported the 2016 HHS regulation cited self-report surveys where people who self-identified as transgender claimed they suffered discrimination when providers refused to perform medically-unnecessary surgeries.
For example, at least thirty-five reproductive health and gender-identity organizations who filed comments on the 2016 regulations cited a survey highlighting the following rather disturbing testimonial of a woman who identifies as a “trans man,” as a specific example of “transphobic” discrimination:
(Emphasis added.) In response, HHS in 2016 promised that it would accept this type of discrimination claim, and resolve it based on the provider or insurer’s reasons for declining to assist with “gender transition”:
We clarify that [the HHS Office for Civil Rights’] approach in applying basic nondiscrimination principles. . . relating to coverage for specific health services related to gender transition. . . will evaluate whether a covered entity utilized, in a nondiscriminatory manner, a neutral rule or principle when deciding to adopt the design feature or take the challenged action or whether the reason for its coverage decision is a pretext for discrimination. For example, if a plan limits or denies coverage for certain services or treatment for a specific condition, [the HHS Office for Civil Rights] will evaluate whether coverage for the same or a similar service or treatment is available to individuals outside of that protected class or those with different health conditions and will evaluate the reasons for any differences in coverage.
81 Fed. Reg. at 31433 (emphasis added).
In plain English: under the 2016 HHS regulation, if a provider performed or an insurance plan paid for a mastectomy or hysterectomy to save a woman from a life-threatening condition, but denied mastectomies or hysterectomies motivated solely by a quest for “gender transition,” the provider could be found guilty of unlawful sex discrimination.
And indeed, the National Center for Transgender Equality’s fact sheet explaining the 2016 HHS regulation asserted that the regulation would force healthcare providers and insurers to provide and pay for “transition-related” cross-sex hormones, hysterectomies, orchiectomies, and other surgeries if they also provide or pay for such procedures under other circumstances (i.e., when they are actually medically necessary). This removes any serious doubt as to why gender proponents pushed for the HHS to include “gender identity” in the regulation.
It may seem charitable to adopt regulations that prohibit healthcare providers from denying ordinary and medically-necessary treatment and services simply because a patient doesn’t conform with sex stereotypes, or because they have certain beliefs and feelings about gender. But that was neither the intention nor the effect of the 2016 regulations.
Again: there is no general right in U.S. law for healthcare providers to refuse to provide medically-necessary services for arbitrary reasons. Nor is their reliable evidence of “transphobic” discrimination in the healthcare setting. Much of the supposed evidence instead describes healthcare staff “misgendering” patients or using their legal names, treating people according to their sex rather than their “gender identity,” lacking familiarity with what proponents call “transgender care,” and declining to provide or pay for “gender transition” surgeries and hormones.
Moreover, regulations that use the language of “gender identity” aren’t merely an “imperfect mechanism” for addressing discrimination claims; they are decidedly harmful because they erode women’s rights and interests—especially here, where the HHS purported to interpret the term “on the basis of sex” in Title IX to include “gender identity.” WoLF therefore fully supports the repeal of the “gender identity” provision from HHS’ regulations.
“Termination of pregnancy”
When HHS proposed to include “termination of pregnancy” in its interpretation of discrimination “on the basis of sex,” it sparked a fierce debate about how that provision would be implemented in practice, particularly because HHS had refused to incorporate Title IX’s exemptions on the matter of religious beliefs and abortion. Reproductive health organizations urged HHS not to include religious exemptions or “conscientious objection” provisions, and many of them appeared to believe that the HHS had the authority to override or diminish such exemptions in its regulations.
As a practical matter, when U.S. doctors do not wish to learn or perform abortions for whatever private reason they may have, they have never been required to do so. Medical providers in most U.S. states are explicitly exempted from laws under which they might otherwise be forced to provide abortions against their religious tenets.
Exemptions for healthcare providers asserting “conscientious objections” are also found in many other countries’ laws, including England, Scotland, and Wales (under the conscientious objector exemption in the Abortion Act of 1967), as well as Italy, Spain, Norway, France, Brazil, and so forth. Similar laws and policies allow individual pharmacists to refuse to issue prescriptions for emergency contraception (the “morning after pill”) in the U.S., the U.K., and presumably many other countries.
Clearly, the widespread applicability of religious exemptions and conscientious objector provisions does not mean they are harmless. By their nature they create obstacles for women seeking abortions, ranging from minor to insurmountable. They typically fall most heavily on women in rural areas and women with low incomes, who have less access to medical facilities and face longer delays or other financial obstacles to obtaining abortions. This is becoming more serious as the number of hospitals controlled by religious entities is on the rise. Restrictive laws threaten women’s lives if they lack strong protections to guard women’s health, including, for example, mandatory requirements to make timely referrals to the nearest willing abortion provider or pharmacist. There will always be a need to balance the competing rights and liberties of individual patients and individual doctors, and women must insist that the laws and policies governing this balance prioritize the lives of women.
But conscientious objector rights can’t be revoked by administrative agencies like the HHS, and it’s not even clear that doing so is a smart goal. Instead, what’s needed are strong protections to ensure that women’s health is prioritized and protected at the same time a conscience objection is raised, not only when invoked individually but also in light of their cumulative effect on abortion access. Beyond the law, women who live in rural areas, have low incomes, or face other social disparities need social and financial support structures to ensure they have access to healthcare, including contraception and abortion.
In explaining its decision to repeal the “termination of pregnancy” provision in its 2020 regulation, HHS asserts that “this [new] rule does not change the legal ability of providers to offer abortions,” contrary to claims by “commenters who predict that the finalization of this rule will significantly reduce abortion access or cause resulting health consequences.” 85 Fed. Reg. at 37193. We tend to agree. Repealing the “termination of pregnancy” language had no effect on other existing legal restrictions that are outside of HHS’ jurisdiction.
Given that the ACA incorporated the sex discrimination protections in Title IX, and Title IX contained pre-existing religious exemption and abortion-neutrality provisions, it seems apparent that the Obama administration wrote a check it couldn’t cash when it attempted to include “termination of pregnancy” in its interpretation of sex discrimination, without also incorporating exemptions for religious entities, and without specifying that no one would be required to perform or pay for abortions if that’s contrary to their moral beliefs. Viewed in context, one might wonder whether HHS officials included that language even while knowing it to be legally doomed. Such a political stunt would have enabled them to pretend they were doing something useful on abortion, after having undermined efforts to get strong protections for abortion access into the ACA itself.
This demonstrates why women can’t rely on political promises and strategies that shortcut the legal process.
CONCLUSION
WoLF fully supports the HHS decision to remove “gender identity” from its interpretation of sex discrimination. People who claim to identify as transgender remain either male or female, and sex discrimination laws apply to them accordingly. But we disagree that anyone has the moral right to obtain medically-unnecessary and harmful “gender affirming” surgeries or hormones. No healthcare provider should face punishment or discrimination for refusing to go along with such demands. Nor should people be required to fund these procedures and prescriptions through their taxes or insurance premiums.
WoLF further agrees that discrimination on the basis of sex-stereotypes falls within legal prohibitions against sex discrimination. Organizations who claim to represent the interests of people who identify as transgender should seek protection under those established principles, instead of pushing for “gender identity” laws that erode women’s rights, privacy, and safety.
Regarding abortion, WoLF cannot support HHS’ repeal of the “termination of pregnancy” provision, but nor can we claim to be surprised that it was first overturned by federal courts and ultimately withdrawn by the current administration. Women need protections for abortion access that are legally and politically durable, and the 2016 HHS regulation simply failed in this respect.
Women must demand that all of our political representatives and their agency appointees respect women’s access to abortion services, while protecting children and vulnerable adults from “gender identity” snake oil.