A current federal proposal by the U.S. Department of Health and Human Services surfaced concerns that doctors could be punished for believing there are only two genders rooted in biological sex, female and male. The proposed rule is aimed at banning discrimination against transgender individuals under President Obama administration's Affordable Care Act.
Section 1557 of the Affordable Care Act cites decades long-established federal laws that prohibit any individual from being denied benefits or discriminated against in any health program or federally funded activity on the basis of race, color, nationality, sex, disability and age. However, Office of Civil Rights staffers are now interpreting "sex" to include "gender identity" and "sex stereotypes," reports the Catholic News Agency in New Boston Post.
Consequences of changes in sexual interpretations could be wide-reaching.
The proposed regulation defines "sex stereotypes," as "expectations that gender can only be constructed within two distinct opposite and disconnected forms (masculinity and femininity), and that gender cannot be constructed outside of this gender construct (individuals who identify as neither, both, or as a combination of male and female genders)."
Gender identity is defined as "an individual's internal sense of gender, which may be different from an individual's sex assigned at birth." As a result, doctors and medical institutions could be penalized if they are not willing to perform or facilitate sex reassignment surgeries and other "gender transition" treatments for individuals who identify as transsexual.
Critics of the suggested regulation have stated it is a radical proposal that could result in severe penalties for physicians, who cannot, in good conscience, comply.
Jonathan Scruggs, the legal counselor with Alliance Defending Freedom, called the proposed regulation an "unparalleled overreach by bureaucrats who want to advance a specific agenda."
"Everyone knows that under Title IX, sex means biological sex," he told the Catholic News Agency.
Scruggs said he believes HHS has exceeded its authority and is going against the intent of Congress.
"The government should not be in the business of trying to redefine sex. HHS is supposed to apply the law faithfully, not go beyond the terms of the law," he said.
Roger Severino, director of the De Vos Center for Religion and Civil Society at The Heritage Foundation, questioned the impact the rule could have on religious liberty and rights of conscience. "(W)hat about an individual's moral convictions and religious freedom?" he asked. "Will they be respected and preserved?"
Apart from religious beliefs, many doctors oppose sex reassignment surgeries for medical reasons, claims New Boston Post. Statistics show that individuals who have these surgeries can face serious psychological consequences and are at a significantly higher risk of suicide. Once a pioneer in sex reassignment surgery, Johns Hopkins University has since ended the practice, finding that it was actually damaging to those who undergo it, cites the Post.
If finalized, the proposed regulation would be binding on all health insurers that offer plans under the Affordable Care Act, including those participating in health insurance exchange plans. The regulation also would apply to approximately 133,000 health care facilities, all state Medicaid programs, all private insurers that receive federal funding, as well as almost all physicians in the United States who accept some form of federal reimbursement.
Failure to comply with the new regulation could result in a loss of government funding and other legal penalties.