Critics fear HHS rule will encroach on doctors’ judgment for transgender procedures

Critics fear HHS rule will encroach on doctors' judgment for transgender procedures

Biden administration’s
move to add gender identity as a protected category to anti-discrimination rules in healthcare has prompted concerns that physicians will be subject to government pressure to administer gender transition care despite their own medical judgment.

Department of Health and Human Services
issued a
new proposed rule
this week to revise anti-discrimination guidelines for every health entity that receives financial assistance directly or indirectly through HHS, which can include state or local health agencies, hospitals, health insurers, physician’s practices, pharmacies, and nursing facilities. The new proposed rule would return to the 2016 version’s definition of sex discrimination to include gender identity and sexual orientation. The Trump administration had rewritten the 2016 rule to exclude protections for transgender people, considering only biological sex, not gender identity.


Conservative policy advocates argued that the rule, which covers all healthcare plans and providers who receive federal funding, will impede doctors’ freedom to use their best medical judgment in determining whether to administer gender transition services.

“It’s just absurd that they’re trying to use a nondiscrimination statute to push medical treatments and establish a medical standard of care and medical consensus on the issue of transitioning treatments,” said Rachel Morrison, a policy analyst at the conservative Ethics and Public Policy Center.

Per the rule, the belief that administering gender-affirming care is never beneficial is insufficient grounds for arguing that a health service is not clinically appropriate.

“For example, issuers have historically excluded services related to gender-affirming care for transgender people as experimental or cosmetic. … Characterizing this care as experimental or cosmetic would be considered evidence of pretext because this characterization is not based on current standards of medical care,” the rule

“If a doctor accepts the gender ideology that there are occasions to remove healthy reproductive organs, they have the ability to say yes or no with a particular patient based on their medical judgment,” said Roger Severino, the vice president of domestic policy at the Heritage Foundation. “If you’re a doctor that thinks it is never appropriate to remove healthy reproductive organs from children, you’re required to perform it. It flips the practice of medicine on its head.”

Severino, who served as the director of the Office of Civil Rights at HHS under former President Donald Trump, wrote
the 2020 version
of the law that removed “gender identity” from the protected category in anti-discrimination laws in healthcare.

Opponents of gender transition healthcare argue that the procedures involved, such as puberty blockers for children, hormone therapy, and surgery, are experimental and could be dangerous. Dr. Jane Orient, executive director of the conservative Association of American Physicians and Surgeons, called the treatments “radical and new and extreme” that have “irreversible long-term consequences.”

The issue of making this type of healthcare accessible to children through the Children’s Health Insurance Program is particularly contentious. In addition to arguing that providing gender transition procedures to children is experimental and radical, healthcare professionals have also pointed to evidence that
some children later regret
having undergone the procedures. Proponents point to
of the effects of gender transitions on more than 30,000 youth concluding that access to those procedures is associated with better mental health outcomes. Meanwhile, a lack of access is associated with higher rates of depression, suicidality, and self-harming behavior.

Dueling research pointing to the positive and negative effects of administering transition procedures to children opens the door for more doctors to point to evidence to support their reason for objecting. The prevailing medical consensus is that making transition procedures widely accessible, including to children, is beneficial to people experiencing gender dysphoria and that to deny that is inherently discriminatory.

“What’s a denial that’s nondiscriminatory? It’s something that is based on clinical evidence. There’s a lot of space right now in things like puberty blockers and other kinds of kind of gender-affirming services that are evidence-based and others that are not,” said Allison Hoffman, an expert on healthcare law and policy at the University of Pennsylvania law school. “Some of what you’ll get in that contention is an argument over what is science and what is not science. It’s an area where, obviously, public opinion is evolving. It’s also an area where scientific knowledge and understanding are evolving.”

Before the rule is finalized, HHS will accept comments from the public concerning the 300-page rule over the next 60 days. A deluge is anticipated.

“I expect there to be hundreds of thousands of comments submitted,” Severino said. “And the opposition is going to be substantial because people have woken up to the fact that ideology is replacing science and medicine, and it’s going to end up hurting thousands of kids.”


The agency must then consider and respond to those comments and issue a final rule. The process will take time, and until the rule is finalized, most of the Trump-era rule remains in effect.


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