HHS Forced Sex Changes? There Ain’t No Fait Accompli For The Church Here

“Remember, O most gracious Virgin Mary, that never was it known that anyone who fled to thy protection…

Over at Get Religion, Terry Mattingly wonders why journalists have basically ignored the possibility that the HHS Department has language in their Final Rule Implementing Section 1557 of the Affordable Care Act that indicates all recipients of monies from HHS must perform gender reassignment surgeries, no religious exceptions allowed.

Like, if you wanted that kind of surgery, you’d want the folks least experienced in providing it to start honing their skills by learning on you.

The folks over at The Federalist sounded the alarm with a pretty ominous suggestion that,

The final rule states that, under Title IX, any hospital receiving funding from HHS must “treat individuals consistent with their gender identity.” The rule provides no religious exemption. In other words, religious hospitals that receive taxpayer dollars via Medicaid or Medicare will be required to perform sex-change operations or get cut off financially.

Maybe that was just click bait. Or, maybe most journalists don’t really care enough to do the (not very) heavy lifting that would be required of them to figure out that just because the Administration finalizes something doesn’t mean that the thing finalized will actually go into effect?

I don’t know. Maybe there’s not much sizzle there.

Rest assured, though, that the United States Conference of Catholic Bishops, and other religious groups with a stake in the healthcare delivery system, are way ahead of any journalists hoping scary headlines will sell some papers, and gather some eyeballs on web pages.

You see, back in November of 2015 the USCCB, the Christian Medical Association, the National Association of Evangelicals, et al, jointly scrutinized this proposed rule, commented on it during the period when the Administration opened the rule to feedback, and found that they believe it is untenable, and likely to die a quick death in the courts.

In other words, this ain’t no unhittable knuckle ball coming in hot from the Administration’s ace pitching staff. Nope. Instead, they are lined up on this totally telegraphed fat pitch, ready to hammer it right over the outfield wall.

Need an example? Here are five reasons regarding the question of Gender Identity discrimination where this rule doesn’t have enough pixie dust on it to tip the balance on the court’s clear reasoning weighing machine.

II. Gender Identity

The proposed regulations define discrimination “on the basis of sex” to include discrimination on the basis of “gender identity.” 80 Fed. Reg. at 54216 [§ 92.4]. The regulations define gender identity, in turn, to mean “an individual’s internal sense of gender, which may be different from that individual’s sex assigned at birth.” Id. For several reasons, the inclusion of “gender identity” in the definition of sex discrimination is an erroneous interpretation of the law. First, Title IX says nothing about “gender identity.” Instead, it uses the term “sex.” The ordinary dictionary definition of “sex” is the character of being male or female. Webster’s New World Dictionary (3d College ed.). Because Title IX says nothing about “gender identity,” there is no basis for including it in regulations implementing Section 1557.

Second, the legislative history of Title IX does not support the inclusion of gender identity in the definition of sex discrimination. Title IX was intended to provide equal educational opportunities for both sexes. Lothes v. Butler County Juvenile Rehabilitation Center, 243 Fed. App’x 950, 955 (6th Cir. 2007). There is no basis for concluding that Congress intended, in Title IX, to protect “an individual’s internal sense of gender” (80 Fed. Reg. at 54216) as opposed to his or her biological sex. The phrase “gender identity” was never used in congressional debate over Title IX.

Third, case law does not support the government’s interpretation. We are aware of only one Title IX case that takes up the issue, and it rejects the claim that Title IX forbids discrimination on the basis of gender identity. Johnston v. Univ. of Pittsburgh, No. 3:13-213, 2015 WL 1497753, at *12 (W.D. Pa. Mar. 31, 2015).

Fourth, though OCR claims that its interpretation of “on the basis of sex” to include gender identity discrimination is “well accepted” (80 Fed. Reg. at 54176), the authority it cites for this interpretation is weak. OCR cites: (a) settlement agreements and court filings by the Department of Justice; (b) statements by OCR and other federal agencies; and (c) a handful of court cases. Id. Settlement agreements and court filings by a party provide no authority for any legal proposition. The agency decisions and policies upon which OCR relies did not involve Title IX. In any event, such decisions and policies receive judicial deference only insofar as they are persuasive. OCR’s interpretation of Title IX to include a prohibition on gender identity discrimination is unpersuasive for reasons given here.

Only one of the court decisions cited by OCR arose under Title IX, and that decision, as noted above, rejects the claim that sex discrimination includes gender identity. Johnston, supra, 2015 WL 1497753, at *12. Three other cases cited by OCR arose under Title VII of the Civil Rights Act of 1964. But Section 1557 says nothing about Title VII. If Congress had intended to track Title VII, it would have mentioned that title instead of, or in addition to, Title IX.

To be sure, courts sometimes rely on interpretations of Title VII’s prohibition of sex discrimination in the workplace in construing Section 901 of Title IX. But any reliance on Title VII runs headlong into the fact that most courts have rejected the claim that “gender identity” is a protected class under that title. Title VII’s prohibition of “sex discrimination,” for example, does not make transsexual individuals a protected class, does not preclude reasonable workplace rules requiring different dress and grooming standards for men and women, and does not preclude the reservation of restrooms and locker rooms based on biological sex. Use of the term “gender identity” is therefore over-inclusive because it goes beyond what Title VII proscribes by way of sex discrimination. On the other hand, if OCR intends merely to follow Price Waterhouse, see n.5, supra, then the use of the term “gender identity” is under-inclusive because claims of sex stereotyping, as courts have construed that term, do not require a showing of discrimination based on gender identity. For these reasons, the term “gender identity” is a poor fit with Title VII’s ban on sex discrimination. For the same reasons, it is a poor fit with Title IX and
Section 1557.

Fifth, if ACA prohibits discrimination on the basis of gender identity, as OCR claims, then efforts in the current Congress to enact the Equality Act, a bill that would, among other things, forbid discrimination on the basis of gender identity by health care providers and in health care programs funded by the federal government, would be inexplicable. There would be no proposal in the current Congress to prohibit gender identity discrimination in federally-funded health care programs if federal law already prohibited it.

For these reasons, the final regulations should not define sex discrimination to include discrimination on the basis of gender identity. This is not to suggest that any person should be excluded from health services. An orthopedic practice group, for example, would be acting unprofessionally if it refused to treat a person’s fractured limb because of his or her political affiliation, marital status, family size, matriculation, intellectual interests, sexual practices, gender identity, or any number of other reasons. The point of the regulations, however, is not to create a code of professional ethics but to implement a particular provision of ACA, and that provision says nothing about any of these categories.

Read their entire analysis on all the other provisions of Section 1557 right here. If you’re pressed for time, let me skip you right to their conclusion.

When the regulations were first proposed, they were “hailed as groundbreaking.” That is a strike against them. OCR’s task is not to break new ground, but to carry out an Act of Congress. As discussed here, the proposed regulations fail to do that.

We respectfully submit that in the final regulations, OCR: (a) must make clear that Section 1557 does not require the provision of, referral or coverage for, abortion; (b) must not define sex discrimination to include gender identity discrimination; (c) must not require coverage of gender transition services; (d) must revise its overly broad interpretation of sex stereotypes; (e) must clarify that Section 1557 does not forbid discrimination on the basis of sexual orientation; and (f) must include a religious exemption that is at least as broad as the one in Title IX (but without restriction to an educational setting). The exemption, at a minimum, should state that the prohibition on sex discrimination shall not apply to a religious organization if such application would not be consistent with the religious tenets of such organization.

Without these changes, the regulations, for the reasons stated in this letter, are unlikely to survive scrutiny in the courts.

Thank you in advance for your careful consideration of these comments.

That was their opinion before the rule was finalized, which was, ironically, 3 days before the recent victory of the Little Sisters of the Poor at the SCOTUS.

If the USSCB’s, and their partner’s, opinion is correct, the Administration might be facing a whole ‘nother  fait accompli, all over again. Donald Verrelli probably hopes he’s retired from the ballpark before he has to defend this thing.

Maybe the journalists will care then? Stay tuned.

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