The Corner

Politics & Policy

Healthcare Dragooned to Effect Social Change

Flag at a protest against Trump administration transgender policies in New York City, 2018 (Brendan McDermid/Reuters)

The Affordable Care Act was about much more than guaranteeing all Americans access to health insurance. As wielded by the Obama Administration, the law became a means of effecting progressive social change.

Thus, Obama’s HHS promulgated a rule that equated discrimination based on gender identity to that based on sex, toward the end of requiring insurance to pay for medical interventions of patients who identify as a different sex than they were born. But that provision could also be wielded against doctors or hospitals in medical conscience disputes, for example, a doctor who refuses to prevent normal puberty in gender-dysphoric children might face charges of “discrimination.”

The Trump HHS is seriously pondering changing course by defining gender as biologically determined, causing two LGBT advocates to blow a gasket in a column published in the ever-more ideological New England Journal of Medicine. Lawyer Jocelyn Samuels, an Obama Administration official and current director of the Williams Institute at UCLA Law School, and Mara Keisling, who is with the National Center for Transgender Equality — remember, the NEJM is supposedly a medical, not a political journal — write in “The Anti-Trans Memo: Abandoning Doctors and Patients”:

In October 2018, the New York Times reported on an effort under way by the Department of Health and Human Services (HHS) to redefine gender as a “biological, immutable condition determined by a person’s genitalia at birth.” If that effort succeeds, it will, at a minimum, restrict federal nondiscrimination protections for transgender people seeking necessary medical care. Indeed, it will have damaging repercussions for both transgender and intersex Americans — vulnerable communities that have faced persistent and pervasive discrimination from health care providers, hospitals, and insurers, among others.

Do you see the strategy? Defining gender based on biology will cause “discrimination.” Hence, the authors want a law that ostensibly requires universal access to insurance, to define gender in a way that empowers activists to dragoon it into service to promote particular cultural agendas.

The authors tell a terrible story of a transgendered teen treated horribly by a mental-health facility, which may have contributed to the patient’s ultimate suicide:

In 2015, the young man was admitted for inpatient care at a hospital’s adolescent psychiatric center, where his mother made clear to hospital staff that he was a transgender boy who needed to be treated as a boy. In fact, his medical records reflected his legal name and gender change. Nevertheless, staff at the hospital repeatedly harassed and humiliated him, including by using feminine pronouns and telling him that he was “such a pretty girl.” Soon, other patients followed suit, referring to the boy as “she.”

That was cruel and inexcusable, against which there should have been ample legal redress, e.g., medical malpractice, intentional infliction of emotional distress, and other tort remedies. Administrative penalties involving licensure would also presumably apply. But a federal law requiring all Americans to have health insurance should have nothing to do with it.

Not according to the advocate authors who want the ACA to compel health care professionals to adopt their views about the transgender controversy:

It is undeniable that, as a moral matter, all patients, including transgender patients, deserve the same respect and dignity. Under the ACA, such respect and dignity are also their legal right. It is the responsibility of HHS to help providers make the right decisions and avoid needless lawsuits — not to send mixed signals that will harm patients and lead to more litigation.

Litigation that, I have little doubt, the authors or their colleagues would be happy to launch against dissenters to the reigning cultural paradigms.

The transgender controversy is a cultural flash point. As with other hot-button social issues, such as supporting gun control, opposing medical conscience, yearning for healthcare rationing, and opposing Hobby Lobby’s fight against the contraceptive mandate, the NEJM consistently strives to herd doctors and society toward the cultural left – demonstrating that for the medical establishment, healthcare isn’t just about medicine anymore.


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