Latest Obamacare lawsuit shows reach of the transgender rights debate

Posted September 19

A federal lawsuit filed against the Department of Health and Human Services by five states and two faith-based organizations shows that the transgender rights debate extends far beyond the highly contentious restroom debate. (Deseret Photo)

The transgender debate has never been confined to public restrooms. And a recent federal lawsuit filed against the Department of Health and Human Services by five states and two faith-based organizations shows how far-reaching the government's interpretation of the word "sex" could be.

The lawsuit filed Aug. 23 alleges that a newly adopted regulation intended to prevent discrimination based on sex in federally funded health care programs "would force doctors to ignore science and their medical judgment and perform gender transition procedures on children."

At the core of the legal action is the government's expanded definition of the word "sex" that came in a May 13 "Dear Colleague" letter in which the Obama administration clarified its interpretation of Title IX — a federal law that prevents sex-based discrimination at federally funded schools — to affirm that transgender people are also protected under the law.

The letter instructed schools to allow transgender students to use restrooms, locker rooms, housing and other facilities with which they identify.

"The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations," the letter read. "This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity."

The dispute over the latest HHS mandate is latest example of how the government's interpretation of Title IX could go beyond the scope of federally funded education programs, legal experts say.

"Any government action that depends on interpretation of the word 'sex' in any federal statute, regulation, or policy could be affected by the Department of Education's interpretation of 'sex' in Title IX," Harvard Law School professor Jeannie Suk Gersen told Deseret News. "Even if one agency’s interpretation is not binding on other agencies for the purposes of other statutes, it may still be influential on other agencies."

The "Dear Colleagues" letter prompted a swift legal challenge from 13 states over what has been popularly labeled the bathroom regulation. A federal judge in Texas last month temporarily blocked the regulation and is weighing whether to make that injunction permanent.

That same judge, U.S. District Court Judge Reed O’Connor, has also been assigned the more recent lawsuit over the ACA's transgender mandate filed by the Franciscan Alliance, a faith-based hospital network, the Christian Medical and Dental Associations, an umbrella group of medical professionals, and Texas, Wisconsin, Kansas, Kentucky and Nebraska.

New interpretations and standards

There are a number of U.S. laws that bar gender discrimination, including the Fair Housing Act, the Equal Pay Act of 1963, the Family and Medical Leave Act and the Civil Rights Act of 1964: Title VII, among others.

While it is unclear how the government's expanded interpretation of sex to include gender identity will play out in light of differing federal rules and regulations, legal experts have published their best guesses following the release of the "Dear Colleagues" letter.

"(It) may provide insights for employers on how the DOJ might interpret transgender issues under employment discrimination laws, as that department has stated in the past that it considers Title VII to apply to gender identity and expression," the law firm Jackson Lewis explained in a primer on the issue.

It's also possible that private schools could be impacted as well, as any institutions that accept federal money could "inadvertently be subject to Title IX," according to lawyers with Liebert, Cassidy and Whitmore.

"While generally Title IX does not apply to private schools, schools can inadvertently be subject to Title IX if they accept federal funds," the firm explained. "More importantly, even if Title IX does not apply, it may be creating new best practices and therefore new standards for all schools."

Transgender rights in health care

The Obama administration announced in May that it views Section 1557 of the Affordable Care Act, which protects individuals from "discrimination in health care on the basis of race, color, national origin, age, disability and sex," as also offering protections based on "gender identity and sex stereotyping."

But some doctors and organizations concerned that the regulation puts them in a potentially compromising situation hired The Becket Fund for Religious Liberty to challenge the regulation.

"The rule requires covered employers, and their healthcare providers and professionals, to perform (or refer for) medical transition procedures (such as hysterectomies, mastectomies, hormone treatments, plastic surgery, etc.), if a physician or healthcare provider offers analogous services in other contexts," reads the complaint.

Luke Goodrich, deputy general counsel at The Becket Fund, told the Deseret News that the mandate is "broad" and that it requires doctors to potentially work against the best interests of their patients.

"One of the most troubling aspects of it is that it requires doctors to perform gender reassignment procedures on, including on young children, even when those procedures may be physically and emotionally harmful to the child and violate the doctor's faith and medical judgment," Goodrich said.

He added that the rule reportedly covers nearly every doctor in the country — around 900,000 physicians, to be exact. It also requires that insurers cover treatments for transgender people.

"The way it works is that any entity that gets any sort of HHS funding is covered by the regulation, so that includes Medicare and Medicaid and then pretty much every doctor in the hospital takes Medicare and Medicaid patients, so that's how most of them get swept in," Goodrich said.

He said that under the regulation, a doctor who performs a hysterectomy on a woman with uterine cancer would also be required to do a hysterectomy on a biological woman who is looking to transition to become a man.

While some doctors, based on religious grounds, would be uncomfortable performing such a surgery, Goodrich contends, the regulation bars physicians from deeming transgender procedures experimental or not medically necessary.

"(The regulation says doing so) is outdated and no longer the standard of care, so it's expressly overriding individual doctor's medical judgment," the attorney said.

The plaintiffs are also calling the regulation "blatantly hypocritical," as the U.S. government does not require Medicare or Medicaid to cover gender transition procedures, yet is placing such a demand on private physicians.

He noted that the Center for Medicare and Medicaid Services, a branch of HHS, has not opted to make a national coverage determination — a sweeping decision to cover a service or procedure — for gender reassignment surgery. However, while a large-scale national policy has not been put into place, coverage is permitted depending on an individual's personal circumstances.

Rather than placing mandates on doctors, the solution to the regulatory matter, Goodrich said, is to allow doctors and patients — and not "bureaucrats in Washington" — to make medical decisions.

Constitutional claims

The complaint argues that the Obama administration has changed the definition of "sex" from its original designation of a person's gender at birth to an "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 … at birth."

Text of the rule makes it clear that doctors cannot deny services based on sex "without a legitimate nondiscriminatory reason."

In offering up a number of examples illustrating how the regulation works, HHS noted that providers who have protocols in place for dealing with domestic violence victims, for example, must make sure that those protocols are the same for both men and women. The same goes for other services such as gynaecology.

The Becket Fund complaint alleges that the regulation violates the First Amendment, claiming that it is vague and not tailored to a compelling government interest, violates religious exercise and freedom of association protections and “imposes an unconstitutional condition on plaintiffs’ receipt of federal funding.”

The lawsuit also alleges that it violates the Religious Freedom Restoration Act, a law that bans the federal government from substantially burdening religious exercise without a compelling reason and in the least restrictive way.

"The regulation creates government-imposed coercive pressure on the plaintiffs to change or violate their religious beliefs," the text reads.

Additionally, the lawsuit alleges that the regulation violates the 14th and Fifth Amendment clauses of due process and equal protection, while also substantially burdening states with “exorbitant and unfunded costs” and offering no ability to opt out.

Under the rule, the plaintiffs claim that states are required to force health care professionals at state-run facilities to take part in transition procedures, including plastic surgery, hormone therapy, hysterectomies and reassignment surgery — and to cover said procedures in health care plans.

“By effectively co-opting the plaintiffs’ control over their budgetary processes and legislative agendas through compelling them to assume costs they cannot afford, the new rule invades their sovereign sphere,” the lawsuit states. “The new rule violates the Tenth Amendment of the Constitution of the United States, and runs afoul of the Constitution’s principle of federalism, by commandeering the state plaintiffs and their employees as agents of the federal government’s regulatory scheme at the states’ own cost.”

The lawsuit is not the first time religious objectors have sued the government over ACA mandates.

The federal government was repeatedly sued over the contraception mandate in the ACA, resulting in the Supreme Court's landmark Hobby Lobby ruling that found the mandate violated RFRA by not accommodating business owners whose religious beliefs prevented them from providing certain forms of birth control under employee health plans.

Critics of the lawsuit

Critics of this latest lawsuit say the plaintiffs are bent on "denying health care to trans patients."

The Human Rights Campaign, a LGBTQ civil rights organization, released a statement specifically targeting Texas Attorney General Ken Paxon for his state's role as plaintiff in the case.

"Ken Paxton’s continued attacks on transgender Americans are politically motivated, designed to intimidate and simply beyond the pale," HRC communications director Jay Brown said in a statement. "After months of demonizing and targeting transgender students, it seems he has decided that all transgender people must be the target of his machination."

Brown continued, "We strongly oppose Paxton’s harmful lawsuit, and the courts should see it for what it is — a shameful, cheap political attack."

Others contend physicians' allegations against the new rule are unfounded.

Jillian Weiss, director of the Transgender Legal Defense and Education Fund, said the regulation is really about ensuring equality.

"The only thing a doctor is obliged to do is treat all patients, including trans patients, with dignity and respect and to make treatment decisions free from bias," Weiss said, according to the Associated Press. "If a doctor has a sound, evidence-based, medical reason to delay transition care for a specific patient, that would be respected under the regulations."

Goodrich pushed back against claims that the plaintiffs are seeking to deny medical care to transgender people.

"The plaintiffs in this lawsuit … have, for years, gladly and with tremendous expertise and compassion, provided a huge range of medical services to transgender individuals," he said. "They are very eager to provide care to everyone."

He said his clients are "motivated by a desire to love and serve and care for patients" and that, as a result, they cannot offer procedures that they believe would be harmful to their patients.

As latest transgender battles over regulations are unfolding, North Carolina and the federal government are also locked in a legal battle over a law that the state passed requiring people use bathrooms associated with their biological genders.

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