HHS Rule Removes Nondiscrimination Protection for Gender Identity

June 14, 2020 Updated: June 14, 2020

The U.S. Department of Health and Human Services (HHS) finalized a rule June 12 that follows on federal court rulings finding the Obama administration overreached when it issued an unusual rule prohibiting discrimination in health care and health insurance on the basis of patients’ “internal sense of gender.”

“HHS respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress,” Roger Severino, director of the Office for Civil Rights at HHS, said in a statement.

“We are unwavering in our commitment to enforcing civil rights in healthcare.”

The new rule, according to the agency, could save hospitals, insurers, and others $2.9 billion over five years by relieving them of regulatory burdens.

“Now more than ever, Americans do not want billions of dollars in ineffective regulatory burdens raising the costs of their healthcare. We are doing our part to reel in unnecessary costs that add economic burdens to patients, providers, and insurers alike,” Severino said.

The new rule unveiled by Severino deals with nondiscrimination provisions in Section 1557 of the Affordable Care Act, the Obamacare statute. That law declared it unlawful to discriminate on the basis of “race, color, national origin, sex, age, or disability in certain health programs and activities.”

In 2016, the Obama administration published an HHS rule interpreting “sex” to mean sexual identity or gender, which it defined as “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.”

Finding the rule was probably contrary to applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act, a federal court preliminarily enjoined it at the end of 2016. The court finalized its judgment in October 2019, striking down the offending provisions of the rule. A second federal court concurred.

Consistent with those court rulings, this new rule would reverse the Obama-era rule that expanded “sex” to include the fuzzier concept of gender identity.

A lack of linguistic clarity has clouded the issue in recent years as the concepts of sex and sexual identity, or gender, a politically and scientifically contentious concept whose definition isn’t universally agreed upon, have become difficult to separate. Despite the distinct meanings of the two words, many institutions and individuals use “gender” to mean biological sex, especially on fillable forms and documents.

The new rule, according to HHS, continues to provide for enforcement of federal civil rights laws on the basis of race, color, national origin, disability, age, and sex, and “restores the rule of law by revising certain provisions that go beyond the plain meaning of the law as enacted by Congress.”

The Trump administration’s reasoning is that if Congress wanted to forbid discrimination based on gender or sexual identity, as opposed to biological sex, it would have done so explicitly.

Critics say the new rule would endanger vulnerable transgender people.

“I can’t help but wonder if the timing [of this rule] is by design so that this is something that people won’t pay attention to,” Tia Sheree Gaynor, a political science professor at the University of Cincinnati, told NPR.

But James Shupe, who dramatically repudiated the transgenderism movement months ago, disagreed. Shupe, who now says the idea that one can change one’s sex is a fraud, made history when he won legal recognition for his “non-binary” sex designation and then rescinded the status and restored the sex on his birth certificate to “male.”

The new rule is “correct … because a government agency should not be a party to lying to patients,” Shupe told The Epoch Times.

“For example, I’m biologically male. … So everyone in the medical field should have been honest with me about that instead of playing along with the ruse that I was a female.”

“Will doctors turn patients away? Some will and some have always been doing so. It should be their right, especially in the religious freedom arena. No doctor should have to perform a surgery on a healthy person against their will to enable a sexual fetish or to pretend that it’s going to alleviate a mental health problem. A doctor creating a fake vagina for me is no different than asking a doctor to implant horns in my head so I can identify as a dragon.”

The new rule comes as the justices of the Supreme Court consider a transgender employment rights case they heard in October 2019 called Harris Funeral Homes v. Equal Employment Opportunity Commission (EEOC). The court’s current term is scheduled to end in coming weeks and a decision is expected in the case any day now.

At issue in the case is whether discrimination against transgender individuals is covered by the sex-discrimination provision in Title VII of the Civil Rights Act of 1964. The word “sex” didn’t appear in the original draft of the law but was added late in the legislative process to a section prohibiting employers from discriminating on the basis of “race, color, religion, or national origin.”