Western European nations may be rethinking access to “gender-affirming care,” but the Biden administration is going full steam ahead.
The Health and Human Services Department unveiled its final rule expanding the definition of “sex” under Section 1557 of the Affordable Care Act to include “gender identity,” raising alarm about healthcare providers being compelled to provide sex-change drugs and procedures despite rising concerns about their use.
HHS Secretary Xavier Becerra called the decision reversing the Trump-era policy “a giant step forward for this country toward a more equitable and inclusive health care system,” while conservatives accused the administration of placing politics above medical science.
“Just days after the Biden administration gutted protections for women and girls in Title IX, they have now moved to inject radical gender ideology into hospitals and medical centers nationwide,” said Terry Schilling, president of the American Principles Project.
He predicted healthcare providers will be “forced to provide sex-change drugs and surgeries to all comers, including minors, or be forced out of business.”
The Alliance Defending Freedom called the newly released rule “a vast overreach that turns medicine upside-down,” accusing the administration of ignoring congressional intent.
“Congress never voted to redefine sex in the Affordable Care Act to add gender identity,” said Julie Marie Blake, ADF senior counsel. “The rule harms families and children by promoting dangerous, life-altering ‘gender-transition’ procedures that remove healthy body parts or block puberty. The Biden administration’s egregious rule would alter the United States’ medical system for the worst.”
The department countered that providers “do not have an affirmative obligation to offer any health care, including gender-affirming care, that they do not think is clinically appropriate or if religious freedom and conscience protections apply.”
The final rule, announced Friday, comes amid an international backlash on gender-transition drugs and surgeries for minors. The Cass Review, a landmark four-year U.K. study into gender medicine released earlier this month, found “remarkably weak evidence” to support such treatment.
Western European countries including Finland, Norway and Sweden have placed limits on such treatment for those under 18, while the National Health Service England banned puberty blockers as of April 1 for gender transitions.
More than 20 states have banned gender-identity drugs and surgeries for adolescents and teens, a position at odds with the Biden administration and its support for “critical, medically necessary care for transgender youth.”
The new rule comes as health officials are raising alarms about the harm of gender transitions, especially for kids. At least 22 states now ban them for kids. The UK is closing its only gender-identity clinic for kids, as the risks outweigh the benefits. https://t.co/jpfROBpq0m“>https://t.co/jpfROBpq0m
— Luke Goodrich (@LukeWGoodrich) https://twitter.com/LukeWGoodrich/status/1784006731959292044?ref_src=twsrc%5Etfw“>April 26, 2024
Solidarity HealthShare President Chris Faddis raised concerns about the rule’s potential to drive out religious providers who refuse to violate their faith by prescribing puberty blockers, cross-sex hormones and sex-change surgeries.
“By expanding the definition of ‘sex’ to include ‘gender identity,’ physicians and medical staff can no longer opt out of performing morally objectionable procedures, like transgender surgeries, without the risk of losing critical federal funding,” he said. “This shameless targeting of faith-based healthcare systems and providers is unacceptable, but sadly not unexpected given this administration’s track record of hostility towards people of faith.”
The rule allows a medical provider to apply for a “religious freedom and conscience exemption,” and receive a temporary exemption while the Office for Civil Rights decides on the application, the department said.
The Human Rights Campaign criticized the religious exemption, saying the “the only way to end discrimination is to prohibit denial of care,” but praised the final rule as a “major, and hard-fought, win for improved health care access for LGBTQ+ Americans.”
That includes specifically prohibiting denial of coverage for hormone-replacement therapy as well as “verbal or physical abuse of LGBTQ+ patients,” the HRC said.
Under the rule, the department will also for the first time “will consider Medicare Part B payments as a form of Federal financial assistance for purposes of triggering civil rights laws.”
The Trump administration’s 2020 rule returned “the government’s interpretation of sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology,” but a federal judge blocked the change pending the outcome of a lawsuit filed by LGBTQ groups.
Luke Goodrich, Becket Fund vice president and senior counsel, predicted that the rule change won’t survive legal scrutiny.
“A similar rule from the Obama Admin was nixed by federal courts 2x,” Mr. Goodrich said on X. “Now the Biden Admin is reimposing the same rule on doctors and hospitals who aren’t protected by earlier lawsuits. It won’t work.”
