The New York Times recently published apparently leaked information about plans at the U.S. Department of Health and Human Services (HHS) to adjust a 2016 transgender mandate. The adjustment involves reverting to the original Congressional statutory meaning of “sex discrimination” as discrimination based on biological sex.

Under the hyperbolical headline, “Transgender’ Could Be Defined Out of Existence Under Trump Administration,” the “news” story in the Times opined,

“The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth, the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people under federal civil rights law.”[1]

A TIME magazine article quoted Diana Flynn, litigation director for Lambda Legal: “If this administration wants to try and turn back the clock by moving ahead with its own legally frivolous and scientifically unsupportable definition of sex, we will be there to meet that challenge.”[2]

The supposedly radical and “legally frivolous and scientifically unsupportable definition of sex” that LGBT activists are protesting and HHS is considering is this: Male and female sex are biological facts determined by chromosomes.

Following the incendiary tone of the Times, the Associated Press headlined its story, “Fury Over Reported Federal Plan Targeting Transgender People.” The AP wrote that “LGBT leaders across the U.S. reacted with fury” and reported that “activist leaders, speaking amid posters reading ‘#Won’tBeErased’, later addressed a protest rally outside the White House.”[3]

The rhetoric of activists and their media allies exceeds hyperbole. HHS is not remotely capable or desirous of defining anyone out of existence. HHS is simply bound to follow the law as it is written by Congress—not as imagined or wished by activists and ideologues.

To that end, HHS has been working on a new rule to correct a radical regulatory overreach involving a radical misconstrual of the clear intent of Congress in laws concerning “sex discrimination.” Prodding that correction is a December 31, 2016 federal court ruling in favor of the Christian Medical & Dental Associations and others, including five states, who had sued HHS to halt an Obama transgender mandate regulation that violated both medical judgment and religious freedom.

Leapfrogging a political agenda over science and religion

In the waning weeks of their power, the previous administration threw caution and medical research to the wind with a reckless regulation that leapfrogged a political agenda over sound science. Were it not for the federal court’s preliminary injunction, doctors and health organizations nationwide today would be forced to comply with a coercive transgender mandate.

In May 2016, HHS issued a new rule[4] that would require physicians and hospitals to perform potentially harmful transgender medical procedures whether or not those procedures fulfilled patients’ best interests according to medical judgment.

To arrive at that conclusion, first the administration reinterpreted decades-old law prohibiting sex discrimination (such as in boys’ versus girls’ sports in schools) as applying to “gender identity issues.” Congress, however, had given no evidence when passing the anti-discrimination law of envisioning any such radical application.

Having redefined the law to suit an ideological agenda, HHS officials then moved to eliminate doctors’ medical judgment, requiring every health professional and institution to perform potentially harmful transgender medical procedures do or else be deemed guilty of “discrimination” and subject to face serious penalties.

Ideology trumps freedom of conscience and speech

Not satisfied with mandating that health professionals violate their medical judgment, HHS officials went a step further, dictating even the speech of health professionals:

“For example, a provider’s persistent and intentional refusal to use a transgender individual’s preferred name and pronoun and insistence on using those corresponding to the individual’s sex assigned at birth constitutes illegal sex discrimination if such conduct is sufficiently serious to create a hostile environment” [emphasis added].[5]

Other examples of the coercive nature of the new rule, quoted from the text of the regulation and accompanying commentary by HHS officials, include (emphases in italics are added and my comments are bracketed):

• “…a covered entity may not deny or limit health services [e.g., hormone treatments or hysterectomies] that are ordinarily or exclusively available to individuals of one sex, to a transgender individual based on the fact that the individual’s sex assigned at birth, gender identity, or gender otherwise recorded is different from the one to which such health services are ordinarily or exclusively available.”
• “We believe that it is important to ensure that civil rights protections are extended to transgender individuals to afford them equal access to health coverage, including for health services related to gender transition.”
• “…an exclusion or limitation [that] systematically denies services and treatments for transgender individuals is prohibited discrimination” [e.g., a policy declining to do transgender surgeries on children].

Rule ignores research-based medical caution

From a medical perspective, the brash new rule flew in the face of the administration’s own medical board which, based upon medical research, had advised against requiring coverage of gender transition surgical procedures under Medicare and Medicaid.

As reported in connection with CMDA’s successful lawsuit to stop the transgender mandate,

Along with physical impacts like heart conditions, increased cancer risk, and loss of bone density, the peer-reviewed longitudinal studies of children with gender dysphoria (that HHS accepted as valid) found that fewer than 1-in-4 children referred for gender dysphoria continued to experience that condition into adulthood. Some grew out of it, but many of the children ended up realizing that they were not transgender but instead gay or lesbian.[6]

Prioritizing ideology precludes reasonable accommodation of dissent

HHS officials refused pleas by faith-based organizations, submitted during the rule’s public comment period, for specific religious freedom exemptions from the transgender mandate:

“[We] decline to adopt a blanket religious exemption in the final rule as any religious concerns are appropriately addressed pursuant to pre-existing laws such as RFRA [Religious Freedom Restoration Act] and provider conscience laws.”[7]

Existing law is only as good as its enforcement. Unfortunately, victims of illegal discrimination because of their religious beliefs could only depend for relief upon the Office of Civil Rights at HHS—the very agency that declined to provide explicit religious freedom exemptions.

Court intervenes on behalf of CMDA and others

Faced with a frontal assault on the conscience freedoms and medical judgment of its over 19,000 members, the non-profit Christian Medical & Dental Associations teamed up with the Franciscan Alliance health organization and the states of Texas, Wisconsin, Nebraska, Kentucky and Kansas to file suit in federal court to stop the madness. Becket, which successfully defended the Little Sisters of the Poor in a landmark Supreme Court case against the Obamacare contraceptives mandate, represented the health organizations in federal court.

Thankfully, the federal court agreed with the plaintiffs and intervened to issue a preliminary nationwide injunction to stop implementation of the mandate.[8]

In his ruling handed down on December 31, 2016, U.S. District Judge Reed O’Connor observed,

“[The Christian Medical & Dental Associations’] approved Ethics Statement affirms the ‘obligation of Christian healthcare professionals to care for patients struggling with gender identity with sensitivity and compassion’ but states clear opposition to medical assistance with gender transition and abortion. CMDA members treat transgender individuals for health issues ranging from the common cold to cancer, and several members have already received requests for transition-related procedures that they cannot provide without violating their religious beliefs.”

Judge O’Connor also addressed the issue of expanding Congress’s intent for the statutory (Title IX) definition of “sex discrimination”:

“It is also clear from Title IX’s text, structure, and purpose that Congress intended to prohibit sex discrimination on the basis of the biological differences between males and females.”

The federal court concluded that “the Rule imposes a substantial burden on Private Plaintiffs’ religious exercise,” noting that under the Religious Freedom Restoration Act, “the government bears the burden to show the Rule satisfies strict scrutiny—i.e., ‘demonstrate that the application of the burden to the person represents the least restrictive means of advancing a compelling interest.'”

The court ruled in favor of CMDA and the other plaintiffs and issued a nationwide preliminary injunction to stop the coercive transgender mandate:

“Defendants [HHS] are hereby enjoined from enforcing the Rule’s prohibition against discrimination on the basis of gender identity or termination of pregnancy.”

Since that decision, the U.S. Department of Health and Human Services has assured the court and plaintiffs that it is working to amend the Obama administration’s rule that triggered the lawsuit. Publication of a new rule is considered imminent.

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[1] ‘Transgender’ Could Be Defined Out of Existence Under Trump Administration,” New York Times, October 21, 2018.

[2] “‘I’m Protecting Everybody,’ President Trump Says After Reports His Administration Wants to Strip Transgender Protections,” TIME magazine, October 22, 2018. Accessed online November 1, 2018 at http://time.com/5431443/donald-trump-transgender-protections/.

[3] “Fury Over Reported Federal Plan Targeting Transgender People,” The Associated Press, October. 22, 2018. Accessed online October 24, 2018 at https://www.nytimes.com/aponline/2018/10/22/us/politics/ap-us-transgender-rights-.html.

[4] “Nondiscrimination in Health Programs and Activities Proposed Rule, Section 1557 of the Affordable Care Act,” U.S. Dept. of Health and Human Services, May 18, 2016. Accessed online September 4, 2018 at https://www.federalregister.gov/documents/2016/05/18/2016-11458/nondiscrimination-in-health-programs-and-activities.

[5] Department of Health and Human Services, p. 31406.

[6] www.transgendermandate.org, Becket Law, accessed August 17, 2018.

[7] “Nondiscrimination in Health Programs and Activities,” Department of Health and Human Services, 45 CFR Part 92 RIN 0945–AA02, p. 31435.

[8] See “Court strikes down harmful transgender mandate,” Becket Law, https://www.becketlaw.org/media/court-strikes-harmful-transgender-mandate/. Accessed August 17, 2018.