Politics & Policy

Trump Administration Reverses Obama-Era Regulation That Redefined ‘Sex’

A worker arrives at the Department of Health and Human Services, Washington, D.C. October 1, 2013. (James Lawler Duggan/Reuters)
The new rule defines “sex” to mean biological sex for the purposes of Obamacare’s nondiscrimination policy.

The Department of Health and Human Services has just announced a rule undoing an Obama-administration policy that had redefined “sex” to include “gender identity” and “termination of pregnancy” for purposes of nondiscrimination under the Affordable Care Act.

Section 1557 of Obamacare prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in health-related programs or activities. Near the end of President Obama’s second term, his HHS Department released a regulation redefining “sex” for the purposes of Section 1557 to include “gender identity” and “termination of pregnancy.”

As a result of the rule that HHS released today, that regulation has been reversed and “sex” once again refers only to biological sex, as was intended in the statute.

In December 2016, the U.S. District Court for the Northern District of Texas enjoined Section 1557’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy. Last fall, the same federal judge vacated the rule, saying that it violated the Administrative Procedure Act and the federal Religious Freedom Restoration Act.

As a result of these rulings, HHS no longer could enforce the Obama-era provision, and today’s new rule brings federal policy into compliance with court rulings.

“What this regulatory reform does is update the books to reflect the reality that ‘gender identity’ and ‘termination of pregnancy’ have been deemed unlawful interpretations of civil-rights law,” Roger Severino, director of the HHS Office for Civil Rights, told National Review. “This final rule is merely conforming to that legal reality.”

Severino noted, too, that the new HHS rule “carries forward the Obama administration’s decision not to include ‘sexual orientation’ as a protected category under the definition of sex discrimination.” Some progressive advocates had urged the Obama-era HHS to add “sexual orientation” to its regulation, but it failed to do so.

Opponents of the Obama administration’s regulation had both health-care and religious-freedom concerns about its implications. Because the policy applied to any health programs or activities funded or administered by HHS, as well as any plans offered in Obamacare’s health-insurance marketplaces, it affected a huge number of health-care providers in the U.S.

By redefining “sex,” the policy required medical professionals to treat biological males who identify as women, and biological women who identify as men, according to their gender identity rather than their biological sex — a practice that can lead to improper health-care decisions.

There was, for instance, a documented case in which a biological female who identified as a male visited a hospital complaining of abdominal pain. Because the doctors were required to treat this person according to gender identity, this biological woman, who was unknowingly pregnant, ended up delivering a stillborn child.

“We agree with the court’s rationale that the plain original meaning of ‘sex’ under our sex-discrimination laws referred to the biological realities of sex, and this is particularly important for programs administered or funded by HHS, because we so often deal with the scientific reality of sex in our health and research programs,” Severino explained.

As the federal judge determined, the Obama policy also had negative implications for religious-liberty and conscience rights, particularly for health-care workers.

“There were religious-freedom concerns at play, as well as to the ability of doctors to be able to act according to their best medical judgment, as well as their conscience and religious beliefs,” Severino said.

The decision to reverse the Obama-administration regulation will almost certainly be met with fury by progressive activists and their allies in the media. When it first became public that the Trump administration was considering undoing the Section 1557 rule, the New York Times falsely asserted that “‘Transgender’ Could Be Defined Out of Existence Under Trump Administration.”

Nevertheless, the move fulfills a key promise that Trump made both on the campaign trail and throughout his time in office, voicing support for undoing Obama-era policies that redefined “sex” to include “sexual orientation” and “gender identity.” This move, though it comes near the end of his first term, is another step in showing his supporters, especially social conservatives, that he is willing to follow through.

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