New Health Care Rules Ignite Fight Over Sex Versus Gender

Sarah McBride, National Press secretary of Human Rights Coalition speaks on introduction of the Equality Act, a comprehensive LGBTQ non-discrimination bill at the US Capitol in Washington, DC. on April 01, 2019. (Tasos Katopodis/Getty Images)

News Analysis

A new lawsuit that LGBTQ and atheist groups filed against the Trump administration over the meaning of the word “sex”—as opposed to “gender”—highlights the turmoil beneath the surface in the nation’s ongoing culture wars.

Left-wing social activists are particularly angry about two new regulations issued by the Department of Health and Human Services (HHS).

When President Donald Trump signed Executive Order 13798 on May 4, 2017, which was that year’s National Day of Prayer, the president promised to protect Americans’ fundamental rights of conscience and religious liberty.

Under Trump, a draft regulation, “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority,” was prepared by the Office for Civil Rights (OCR) at HHS to implement “full and robust enforcement of approximately 25 provisions passed by Congress protecting longstanding conscience rights in health care,” after receiving more than 242,000 public comments.

“Laws prohibiting government-funded discrimination against conscience and religious freedom will be enforced like every other civil rights law,” OCR Director Roger Severino said May 2, in unveiling the rule that is slated to take effect in coming months.

“This rule ensures that health care entities and professionals won’t be bullied out of the health care field because they decline to participate in actions that violate their conscience, including the taking of human life. Protecting conscience and religious freedom not only fosters greater diversity in healthcare, it’s the law.”

On the same day, Lambda Legal denounced the rule on Twitter, claiming it “invites discrimination in health care settings against #LGBTQ folks, women, religious minorities & other marginalized groups.”

“Founded in 1973, Lambda Legal is the oldest and largest national legal organization whose mission is to achieve full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and everyone living with HIV through impact litigation, education and public policy work,” according to the group’s online mission statement.

Sex or Gender

But a second newly proposed HHS regulation dated May 24, which hasn’t yet completed the public comment process, has inflamed the controversy over what counts as discrimination against LGBTQ individuals.

The rule, titled “Nondiscrimination in Health and Health Education Programs or Activities,” would reverse an Obama-era rule that defined the word “sex” to include the fuzzier concept of “gender identity.” Although many people use the words “sex” and “gender” interchangeably in everyday conversation, gender is a politically and scientifically contentious concept, whose definition isn’t universally agreed upon.

“‘Gender’ is a term that is really just an ideological weapon,” conservative activist and scholar Tina Trent, a former candidate for District 26 of the Georgia General Assembly, told The Epoch Times in an interview.

“Its original meaning was indistinguishable from ‘sex,’” said Trent, a writer and former academic who holds a doctorate in contemporary political and social movements from Emory University.

“The idea that ‘sex’ and ‘gender’ are two different things is a political, not a legal or scientific, idea. Within different federal institutions, ‘gender’ is used in different ways to serve political purposes. So, it is intentionally nebulous the way it’s used.”

The Obama rule prevented health insurers from imposing what left-wing activists considered to be arbitrary limits or restrictions on health care services, such as those that help an individual in the sex-reassignment process.

The Obama-era rule forced health insurers to pay for, among other things, transgender-related services that in previous years had been deemed cosmetic or elective, on the theory that to refuse such coverage would constitute sex-based discrimination.

Health care providers, especially hospitals operated by religious organizations, objected to paying for providing contraception or abortion-related services, as well as transgender medical procedures that can involve elective sterilization.

But if the Trump administration prevails, “sex” in this specific federal regulatory context will once again mean what it has meant since 1382, which, according to The Oxford English Dictionary, is “either of the two divisions of organic beings distinguished as male and female respectively,”

This proposed semantic shift will hurt people, according to Lambda Legal.

“The breadth of the harm this new rule will cause is impossible to exaggerate, and opens up yet another front in the Trump administration’s assault on civil rights of minorities and already marginalized, vulnerable populations,” Lambda Legal Defense and Education Fund Inc. senior attorney Jamie Gliksberg said in a statement provided by the group.

“This almost limitless invitation to discriminate will inevitably result in women, LGBT people and religious minorities facing hostile health care workers and denials of medical care at moments of greatest need, where any delay could be fatal.”

Along with Americans United for Separation of Church and State, the Center for Reproductive Rights, and other groups and individuals, Lambda Legal, filed a 74-page complaint for declaratory and injunctive relief against HHS Secretary Alex M. Azar II on May 28 in the U.S. District Court for the Northern District of California. The plaintiffs want to stop the “sex” rule from moving forward in the regulatory process, disparaging it as the “Denial-of-Care Rule.”

The plaintiffs argue that the Trump administration is creating “a wholly new regime that elevates religious objections over all other interests and values.”

“The Rule invites a much larger universe of health care workers to decline to serve patients based on religious objections, defines with unprecedented breadth the types of activities to which they may object, and fails to reconcile objections with the needs and rights of patients—even though doing so is critical in any regulatory scheme administering these laws,” they write.

“[The rule] endangers patients’ health in the name of advancing the religious beliefs of those who are entrusted with caring for them—a result sharply at odds with the stated mission of … [HHS] … which is to ‘enhance and protect the health and well-being of all Americans’ and to ‘provid[e] for effective health and human services.’”

Protecting Religious Belief

Conservatives say these claims are over-the-top.

Susan Carleson, chairman and CEO of the Alexandria, Va.-based American Civil Rights Union, told The Epoch Times she applauded the administration’s striving for linguistic clarity.

“Words have meaning,” she said. “Men aren’t women, and what the administration is trying to clarify and to do reflects the scientific fact that women are women and men and men. There is this stubborn thing called DNA.”

And the idea that religious hospitals would refuse care to gay or trans patients is patently ridiculous, according to Trent.

“The Catholic Church already provides health care to a substantial percentage of the population of the United States. No one has been denied care because of being gay, trans, or having had an abortion,” she said.

The new rule corrects the “unbelievably discriminatory” treatment the Obama administration practiced, she said, in which in “a legal cause of action arose,” when religious providers refused to do things that violate their conscience.

The purpose of the Trump administration here “is to protect health care systems that have religious beliefs, and to respect the parameters that religiously-sponsored health care institutions will or will not provide in terms of healthcare.”

“This is a beautiful realignment of the law to respect the beliefs of providers and the rights of all patients regardless of sexual identity,” Trent said.

Equality Act

The lawsuit comes almost two months after the U.S. House of Representatives passed civil rights legislation that would extend protection to LGBTQ individuals while, conservative critics say, undermining First Amendment free-speech rights and opening the door to religious-based discrimination. The proposed “Equality Act,” known as H.R. 5, was introduced March 13 by Rep. David N. Cicilline (D-R.I.).

The measure would add “gender identity” and “sexual orientation” to the classes protected against discrimination by the Civil Rights Act of 1964, which outlaws discrimination against all protected classes in employment, housing, public accommodations, education, jury service, banking and credit, and retail stores.

“In most states in this country, a gay couple can be married on Saturday, post their wedding photos to Instagram on Sunday, and lose their jobs or get kicked out of their apartments on Monday just because of who they are,” said Cicilline, an openly gay man. “This is wrong. We are reintroducing the Equality Act in order to fix this.”