The Corner

Health Care

HHS Removes ‘Gender Identity’ from Meaning of ‘Sex Discrimination’ in Obamacare

HHS Secretary Alex Azar listens during a roundtable discussion in the Cabinet Room at the White House in Washington, D.C., June 15, 2020. (Leah Millis/Reuters)

The Department of Civil Rights in the Department of Health and Human Services has issued a final rule regarding medical conscience. I fear it is not long for this world.

First, its terms may conflict with the meaning of the word “sex” as redefined recently by Supreme Court Justice Neil Gorsuch in Bostock v. Clayton County. From a summary of the action by lawyer Timothy J. Fry at McGuire Woods:

The final rule eliminates provisions of the 2016 definition of discrimination “on the basis of sex” which encompassed discrimination on the basis of gender identity (“an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female”) and “sex stereotyping.”

The rule also eliminates a provision of the same definition that included discrimination on the basis of “termination of pregnancy.” HHS reasoned that these were legislative changes going beyond the meaning of Title IX of the Education Amendments of 1972 discrimination “on the basis of sex” and cited certain court rulings enjoining the 2016 rule.

Oops. HHS might have wanted to rewrite that, since Bostock held explicitly that under the 1964 Civil Rights Act, discrimination based on “sex” includes sexual identification and sexual orientation.

The rule also clarifies existing protections of medical conscience.

The final rule clarifies protections for providers with conscience-based objections to certain services (such as abortion services or assisted suicides). Such protections already exist in federal law, but the final rule explicitly incorporates by reference such protections, which were not included in the 2016 rule prohibiting discrimination in federal healthcare programs.

I hope I am mistaken, but as far as I know, individuals are not protected under federal law from participating in assisted suicide — although Obamacare specifically does not fund its provision — and based on my reading, this regulation does not add new protections in this specific area. Whatever conscience rights medical personnel might have will probably have to be protected by state statutes where assisted suicide is legal.

As stated above, I do not anticipate that these changes will stick. The sex-discrimination provision is surely doomed. The Left and the bioethics movement adamantly oppose medical conscience, and lawsuits will soon be flying like locusts, so expect injunctions. And if Trump loses the election, whatever is left of the entire rule will go the way of executive actions that conflict with the ideology of an incoming administration.

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