On Monday, the Biden administration’s Health and Human Services department, headed by Secretary Xavier Becerra, announced that the Office for Civil Rights would throw out the Trump administration’s view that sex is biological and “interpret and enforce Section 1557 (of the Affordable Care Act) and Title IX’s prohibitions on discrimination based on sex to include discrimination on the basis of sexual orientation and discrimination on the basis of gender identity.”
The Biden administration rolled back the June 2020 final regulations implementing Section 1557 of the Affordable Care Act by the Trump administration, which eliminated the general prohibition on discrimination based on gender identity and sex-stereotyping that the Obama administration had instituted.
The Trump administration wrote:
This final rule eliminates certain provisions of the 2016 Rule that exceeded the scope of the authority delegated by Congress in Section 1557. The 2016 Rule’s definition of discrimination ‘‘on the basis of sex’’ encompassed discrimination on the basis of gender identity (‘‘an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female’’). In line with that definition, the 2016 Rule imposed several requirements regarding medical treatment and coverage on the basis of gender identity. The same definition also encompassed discrimination on the basis of ‘‘termination of pregnancy’’ without incorporating the explicit abortion- neutrality language of 20 U.S.C. 1688 (which some commenters referred to as the Danforth Amendment) in Title IX, and it imposed a high burden of proof on providers to justify offering gynecological or other single-sex medical services.
Relying on the U.S. Supreme Court’s decision’s in Bostock v. Clayton County and subsequent court decisions, HHS Secretary Xavier Becerra stated:
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. Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. 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.
In the Bostock decision, in which Justice Neil Gorsuch and Chief Justice John Roberts sided with the leftist justices on the court, conservative Justice Samuel Alito issued a blistering dissent, writing:
There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orienta- tion” to the list,and in recent years, bills have included “gender identity” as well.But to date, none has passed both Houses.
Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President), Title VII’s prohibition of discrimination because of “sex” still means what it has al- ways meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation.
A more brazen abuse of our authority to interpret statutes is hard to recall. The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.”
Rachel Levine, Assistant Secretary for Health, who is transgender, celebrated the HHS announcement, saying, “The mission of our Department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to healthcare services to fix a broken bone, protect their heart health, and screen for cancer risk. No one should be discriminated against when seeking medical services because of who they are.”
Caroline Downey noted in National Review:
For now, the notice allows exemptions for religiously-affiliated organizations to survive, in adherence to the Religious Freedom Restoration Act (RFRA) and subsequent court rulings. This means hospitals and healthcare providers with religious objections will not be coerced to participate in transgender “transition” interventions by the Office of Civil Rights, the enforcement arm of HHS.
However, The Equality Act pending in the Senate, which President Biden has agreed to sign, poses an existential threat to the RFRA protection in matters of gender identity, sexual orientation, and abortion.