June 12, 2020
Common Sense Prevails at HHS on the Definition of 'Sex'

Common Sense Prevails at HHS on the Definition of 'Sex'

The Department of Health and Human Services (HHS) today announced it had finalized a long-awaited rule to correct the Obama Administration's distortion of a key portion of their own signature legislation, the Affordable Care Act (ACA or "Obamacare").

Section 1557 was a non-discrimination provision that prohibited discrimination in health care on the basis of sex. This was defined by a reference to Title IX, the landmark 1972 law that prohibited sex discrimination in education.

To every legislator who enacted it, and to every reasonable reader, it would have been obvious that discrimination "on the basis of sex" refers to favoring biological males over biological females, or vice versa.

The Obama Administration, however, had used that innocuous provision to smuggle in a larger -- and more extreme -- social agenda. They issued a rule interpreting sex discrimination to include "discrimination on the basis of... termination of pregnancy... sex stereotyping, and gender identity."

FRC was one of a number of organizations that strongly urged the administration -- in writing and in face-to-face meetings -- to return to the common-sense interpretation. Today, HHS finally affirmed that it has done so.

The Obama rule was a threat to the religious liberty and freedom of conscience of health care providers. Making "termination of pregnancy" a protected category could be read to require the provision of, and coverage or referral for, abortion. Making "gender identity" a protected category could be read as requiring health care providers to participate in "gender transition" medical procedures, such as prescribing puberty-blocking or cross-sex hormones or performing gender reassignment surgery. The Obama rule could even have hurt the health of transgender people themselves, by requiring health care systems to treat people in accordance with their gender identity, when their biological sex is more important for their care. Also, by prohibiting "Nondiscrimination on the basis of association," the 2016 Obama rule could have smuggled in "sexual orientation" as a protected class as well.

The Obama rule was ultimately a threat to the rule of law and the separation of powers as well. The fact that leftists in Congress have so far failed in their efforts to add categories like "sexual orientation" and "gender identity" to our nation's civil rights laws through bills like the "Equality Act" is no excuse for using the regulatory process to insert them. Although President Trump has been a critic of Obamacare as a whole, today's new rule merely takes the modest step of ensuring that the law on the books is executed the way it was written by Congress -- the only branch of government with the legislative power.

By the end of this month, the Supreme Court will be issuing rulings on the interpretation of sex discrimination in the context of employment laws. Let's hope the court exercises the same common sense that the Trump administration did today -- by recognizing that "sex means sex."