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New Obama administration rule will fuel prosecution of health professionals who follow biology over ideology

By Jonathan Imbody | June 23, 2016

by Jonathan Imbody

If you as a health professional or your healthcare institution stick to the scientific view of male and female as biologically determined, the Obama administration and lawyers around the country now have a new weapon with which to stick it to you.

Any health professional or institution that receives federal (HHS) funding treats or counsels transsexual patients, prescribes hormone therapy, performs procedures related to sexuality or has a gender-specific bathroom, changing facility or shower area will suddenly encounter sweeping new dictates designed to enforce a non-biological, ideological view of human sexuality.

Action Opportunity: If you as a health professional and/or your healthcare institution have been or may be affected by these new regulations, please use the Christian Medical Association's Freedom2Care form to let us know.

The U.S. Department of Health and Human Services (HHS) soon will begin enforcing new Obama administration rules on sexual orientation and gender identity discrimination, designed to control your professional practice and constrain the exercise of your conscience.

Effective July 18, 2016, new federal transgender regulations will apply to the healthcare services provided by virtually every physician, hospital and healthcare professional in the country. And they apply to the health insurance provided by many employers, including not only healthcare professionals but also many educational institutions.

The new regulation is breathtakingly broad, applying to "any entity that has a health program or activity, any part of which receives Federal financial assistance from the Department, any health program or activity administered by the Department, or any health program or activity administered by an entity created under Title I of the ACA [Affordable Care Act]."

After consulting with legal experts in this area, here's the lowdown on this new weapon in the aggressive assault on science and sanity regarding sexuality.

What do the new rules require?
The new rules purport to implement a ban on sex discrimination under Section 1557 of the Affordable Care Act. But they dramatically expand the definition of “sex” to include sexual orientation, gender identity, sex stereotypes, and abortion decisions. Thus, the rules say that it is “discrimination” to provide healthcare services or coverage to the general population while declining to provide the same services or coverage to a transgender individual who wishes to transition to a different sex. So, for example, services and situations impacted by the regulations include, but are not limited to:

  • Treating or counseling a gender-questioning individual
  • Prescribing hormone therapy
  • Performing hysterectomies, mastectomies, plastic surgery or genital reconstruction surgery
  • Offering a gender-specific bathroom, changing area or shower
  • Providing health benefits such as insurance or working with an insurance company that does

In the case of the above-mentioned services, all health professionals and institutions under the new regulations may be required to provide the same service to a transgender individual who wishes to transition to the opposite sex.

Covered employers (including virtually any employer that receives HHS funding and provides health benefits to employees) or healthcare issuers (like Aetna) that provide insurance coverage for gender-applicable healthcare services may be required to cover the same services when requested for gender transition (e.g., a hysterectomy for a woman seeking to transition to living as a man);

Covered entities (like hospitals, nursing homes, and physicians’ offices) must treat individuals consistent with their gender identity. That means, for example, that various facilities such as hospital rooms, nursing home apartments and shower and changing must be opened to individuals based on their declared gender identity.

Who is subject to the rules?
The new rules apply to any entity that receives any funding provided by or administered by HHS. This includes any healthcare professional who accepts Medicare or Medicaid. It also includes a wide variety of HHS funding, such as:

  • Federal financial assistance, including wages, loans, grants and scholarships on behalf of students
  • Grants
  • Loans
  • Credits
  • Subsidies
  • Contracts (other than procurement contracts, but including an insurance contract)
  • Services of federal personnel
  • Real property
  • Proceeds from a transfer of property
  • Tax credits under Title I of the Affordable Care Act
  • Subsidies for health-related insurance

Qualified healthcare professionals impacted by the regulations include, but are not limited to:

  • Physician offices
  • Hospitals
  • Nursing homes
  • Insurance providers
  • Counseling centers
  • Plastic surgeons

What penalties could I suffer?
The new rules expose covered entities to significant liability, including:

  • Loss of federal funding
  • Enforcement proceedings brought by the Department of Justice
  • Private lawsuits brought by individuals for damages and attorneys’ fees

One hospital system has already been sued by the ACLU under the new rules, even though they do not officially take effect until July 18, 2016.

Is any exemption provided for my religious convictions?
No. HHS was asked to include a religious exemption due to the obvious implications for religious healthcare professionals but declined to do so. While HHS very aggressively expanded and reinterpreted existing law regarding discrimination based on sex, the department took a decidedly passive approach regarding discrimination based on religious convictions. The rule simply states that existing religious freedom laws should suffice.

What can I do to protect my professional and moral decision-making?
This new regulation remains to be tested in the courts. Courts may view sympathetically assertions of religious freedom and speech protections. Courts also may view antagonistically the fact that unelected federal bureaucrats have taken for themselves a legislative role, blatantly twisting the clear meaning of existing federal law on sex discrimination.

Protect Yourself: If you as a health professional and/or your healthcare institution have been or may be affected by these new regulations, please use the Christian Medical Association's Freedom2Care form to let us know. Please specify how you are impacted and if you or your institution receives any federal funding, including Medicare and Medicaid and the other funding sources listed above.

You will have the option of either keeping your comments confidential or adding them to others' comments viewable on the Freedom2Care website.

Note: While the Christian Medical Association (CMA) often advances its public policy objectives by working with like-minded legal organizations, CMA is not qualified to provide legal counsel and advises members to obtain legal counsel before pursuing any claim.

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