HHS Transgender ‘Interpretation’ May Threaten Conscience Rights – Joe Carter

The Story

A new discrimination policy adopted by the Department of Health and Human Services could pose a threat to the conscience rights of healthcare workers.

The Background

On May 10, the Department of Health and Human Services (HHS) announced that the Office for Civil Rights will interpret and enforce Section 1557 and Title IX’s prohibitions on discrimination based on sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity. Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in covered health programs or activities.

HHS says this update was made because of the U.S. Supreme Court’s decision in Bostock v. Clayton County and subsequent court decisions. In the case of Bostock v. Clayton County, the Supreme Court ruled that the “plain meaning” of “because of sex” in Title VII necessarily included discrimination due to sexual orientation and gender identity.

“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That’s why today HHS announced it will act on related reports of discrimination,” said HHS Secretary Xavier Becerra.

“Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences,” he added. “It is the position of the Department of Health and Human Services that everyone—including LGBTQ people—should be able to access health care, free from discrimination or interference, period.”

Why It Matters

In announcing the change, HHS implies that some gay and transgender people are being denied basic healthcare because of their sexual orientation or gender identity. “All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk,” said Dr. Rachel Levine, assistant secretary for health. “No one should be discriminated against when seeking medical services because of who they are.”

If nurses are refusing to help fix the broken bones of gay men and doctors are refusing to screen for cancer on any individuals who identify as transgender, then such a change would be warranted. But no one—including at HHS—has shown that such discrimination is occurring. The true issue is healthcare workers who refuse to perform potentially harmful gender-transition procedures on their patients.

The true issue is healthcare workers who refuse to perform potentially harmful gender-transition procedures on their patients.

As Luke Goodrich has pointed out, multiple federal courts have concluded: “There is no medical consensus that sex reassignment surgery is a necessary or even effective treatment for gender dysphoria.” He also notes the government’s doctors during the Obama administration agreed that “there is not enough evidence to determine whether gender reassignment surgery improves health outcomes for [patients] with gender dysphoria.”

More recently, a study commissioned by England’s National Health Service found “very low” evidence for the effectiveness of “puberty blockers” and cross-sex hormones. Doctors are rightly skeptical about performing such procedures.

Many Christian healthcare workers are also hesitant to perform harmful procedures that violate human dignity and transgress God’s boundaries. Should they be concerned? In this latest announcement, the HHS says its interpretation will comply with the Religious Freedom Restoration Act (RFRA) and “all other legal requirements.”

While it is comforting to hear that a federal agency is willing to comply with federal law, it doesn’t change the fact that the Biden administration is working directly to undermine that same law. For example, it supports passage of the so-called Equality Act, which explicitly states: “The Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) shall not provide a claim concerning, or a defense to a claim under, a covered title, or provide a basis for challenging the application or enforcement of a covered title.”

On abortion, the Biden administration has argued that medical decisions should be left to the physician and the woman, with minimal to no government interference. But on transgenderism, the government is eager to intervene and force doctors to go against their medical opinion and possibly violate their conscience to perform harmful procedures.

Because of the RFRA, the new interpretation likely won’t force healthcare workers to comply right away. But to preempt the threat, Becket Law, a nonprofit religious-liberty law firm, has said it will ask a federal court for a permanent injunction that protects patients, aligns with current medical research, and ensures doctors aren’t forced to violate their religious beliefs and medical judgment.

Such action is unfortunately necessary since the Biden administration has shown that when LGBT rights conflict with Christian conscience, it thinks believers should lose.

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