Section 1557 of the Affordable Care Act (also known as Obamacare) prohibits discrimination on the basis of sex in health coverage and care. The Department of Health and Human Services (HHS) has released the Final Rule in which it interprets congressional intent in Section 1557 to mean: “discrimination [in provision of health services] on the basis of sex includes discrimination on the basis of gender identity; failure to treat individuals in accordance with their gender identity may constitute prohibited [sex] discrimination.”
Here I have three objectives: First, to specify the federal gender identity regulations for health care and to clarify what physicians who receive federal reimbursement must do to comply. Second, to construct prospective clinical scenarios in which conflict between a patient’s gender identity claims and a physician’s conscience rights might play out within the clinical setting. And third, to demonstrate why health care providers stand in desperate need of the additional conscience protections that HHS refused to include in the Final Rule.
I. The Gender Identity Mandate (GIM): What it requires and what physicians receiving federal reimbursement must do to comply
On May 18, 2016, HHS issued the Final Rule, Nondiscrimination in Health Programs and Activities, to implement their interpretation of the prohibition of sex discrimination under Section 1557 of Obamacare (2010). What is remarkable about the regulation is the fact that it’s the first federal civil rights statute to prohibit sex discrimination in the provision of health services based on gender identity.
While it is true that Section 1557 prohibits discrimination based on race, color, national origin, sex, age, or disability in certain health programs and activities and builds on long-standing federal civil rights laws: Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975. It is also true that HHS’ characterization of sex discrimination bears no resemblance to that laid down in Title IX. According to the latter, schools receiving federal funds must provide girls and women with opportunity to compete in sports equal to that of boys and men. In other words, the prohibition of sex discrimination according to Title IX refers to biological sex, not to an individual’s “internal sense of gender.” As such, Obamacare’s GIM, expansively redefining sex discrimination to include sexual orientation, pregnancy, sex stereotyping, gender identity, and non-conforming identity (persons who think they are both male and female or neither), is an example of executive overreach.
Effective July 18, 2016, the GIM of the Final Rule applies to doctors or counselors who accept Medicaid, Medicare, CHIP, IHS, or Tricare patients, and prohibits their denial of health care services based on a patient’s gender identity. That means psychological/psychiatric counselors and physicians who prescribe hormone therapy, or who perform hysterectomies, mastectomies, plastic surgery, or genital reconstruction surgery for non-transgender patients will be required to provide the same service to transgender patients who are transitioning to the opposite sex.
It is also important to note the GIM requires covered entities—offices and clinics of physicians who accept federally-funded patients—to treat patients consistent with their gender identity, opening their bathrooms and changing facilities to patients based on their declared gender identity.
Physician infractions against the GIM carry substantial liability: the federal government could withdraw the physician’s federal funding, the Department of Justice could bring enforcement proceedings against offending physicians, and transgender patients could sue the physician for damages and attorneys’ fees. To avoid dealing with the GIM’s threats to conscience and their practice of medicine, some physicians receiving federal reimbursement have simply cancelled their Medicaid, Medicare, CHIP, IHS, or Tricare patients.
HHS gives three reasons for rejecting commenters’ suggestion to import Title IX’s blanket religious exemption into the Final Rule. First, because “Section 1557 itself contains no religious exemption.” Second, because “Title IX and its exemption are limited in scope to educational institutions.” And, third, because “a blanket religious exemption could result in a denial or delay in the provision of health care to individuals and in discouraging individuals from seeking necessary care.”
Hence HHS, adopting (to use their verbiage) “a more nuanced approach in the healthcare context,” includes a provision in the Final Rule that declares: “where application of this regulation would violate applicable Federal statutory protections for religious freedom and conscience, that application will not be required.”
II. Prospective clinical cases: How upcoming conflicts between transgender rights and health care rights of conscience could play out in the clinical setting
It is important to distinguish between, on one side, health care for transgender patients that doesn’t involve gender-transition services—i.e., medically necessary interventions that are morally unproblematic—and, on the other, health care involving elective gender-transition services that physicians could legitimately refuse based on medical and moral convictions.
An example of required or medically indicated treatment: if a transgender male patient (a biological female) comes to an oncologist for ovarian cancer treatment or comes to an internist with high blood pressure, the respective physician treats the transgender patient’s medical pathology as she would that of any other patient. Should either physician withhold necessary medical treatment on grounds the physician “wants nothing to do with patients who are transgender,” each would be guilty of blatant discrimination.
An example of elective gender-transition therapy: a transgender male patient (a biological female) requests a hysterectomy as part of gender transition therapy. The attending physician declines to perform the hysterectomy based on her philosophical, medical, or moral convictions. Provision of the requested surgery contradicts the objective nature of sexuality, constitutes an inappropriate treatment for gender dysphoria—treating gender confusion, in the words of Dr. Paul McHugh, “as a right in need of defending rather than as a mental disorder that deserves understanding, treatment and prevention”—and fails to serve the patient’s best interests.
As already noted, the GIM requires physicians prescribing hormone therapy, or performing hysterectomies, mastectomies, plastic surgery, or genital reconstruction surgery for non-transgender patients to provide the same services to transgender patients. Hence, by way of extrapolation, any practitioners who find themselves in the following clinical situations could be coerced into choosing between the untenable options of acting against their conscientious judgments by providing the transition therapies or acting in accord with their consciences by refusing the therapies while risking the loss of federal reimbursement, the cost and penalties from a patient-initiated lawsuit, and/or exclusion from the practice of medicine.
· An OB/GYN or endocrinologist, a Medicare/Medicaid/Tricare (M/M/T) reimbursement recipient, routinely gives hormone therapy for non-transgender men or women deficient in hormones whose normal levels are necessary for reproductive and general health. But, for moral and medical reasons, the physician conscientiously refuses to give these same hormones as transition therapy for transgender male and female patients.
· An OB/GYN, a recipient of M/M reimbursement, performs hysterectomies for non-transgender women who have pathologically diseased uteri. However, the gynecologist refuses to do the same surgical procedure for a transgender male patient (a biological female) since it would involve the harm of mutilation—the removal of a perfectly healthy uterus—and it would assist in providing gender reassignment surgery that, in the physician’s best medical judgment, fails to adequately address the patient’s gender dysphoria.
· A general surgeon or surgical oncologist, an M/M/T reimbursement recipient, performs bilateral mastectomies for medical reasons (breast cancer in one or both breasts) or for prophylactic reasons (in women carrying BRCA1, 2, or 3 genes). However, the surgeon refuses to perform a bilateral mastectomy for a transgender male patient (a biological female) because, in her best medical and moral judgement, the surgery constitutes mutilation, is contrary to the objective meaning of sexuality, and would not adequately treat the patient’s gender dysphoria.
· A pediatrician/pediatric endocrinologist, a Medicaid/CHIP reimbursement recipient, gives development blockers—GnRH agonists—to young children who are sexually developing too early, but conscientiously refuses to give the same to a prepubescent transgender patient on the grounds that (1) these drugs have been shown to stunt children’s growth and risk causing sterility, and (2) their prescription ignores studies suggesting 70-80 percent of gender dysphoria in prepubescent children eventually disappears.
· A child psychologist, a CHIP recipient, advises children struggling with issues of gender maladjustment but refuses to counsel a transgender child to begin real life experience with his/her identified gender. The psychologist’s refusal is based in his best judgment that such counsel would fail to address the underlying psychological/psychiatric etiology of the child’s gender dysphoria and ignores, to the child’s peril, the studies that show gender dysphoria eventually disappears in 70-80 percent of prepubescent children.
· A reconstructive urologist/plastic surgeon, an M/M/T reimbursement recipient, does reconstructive phalloplasty for male patients who have suffered pelvic trauma (e.g., their genital organs have been injured through an accident or as a result of a botched circumcision). However, the same urologist refuses to perform a phalloplasty for a transgender male (a biological female) on grounds that gender reassignment surgery is a form of mutilation (surgical malpractice) and does not resolve the psychological/psychiatric etiology of the patient’s gender dysphoria.
· A cosmetic plastic surgeon, an M/M reimbursement recipient, performs rhinoplasty on women who have an abnormally large nose, chondolargynoplasty on women who have a protruding larynx, and breast augmentations for women with abnormally small breasts. He refuses these same services to transgender females (biological males) because, in his prudent medical judgment, a sex change is biologically impossible and gender reassignment surgery violates the principle of medical ethics, non nocere (do no harm), by perpetuating the patient’s psychiatric disorder of gender confusion.
III. Current legal, judicial and political precedents dictate health care providers need additional conscience protection in the wake of Obamacare’s GIM.
The regnant interpretation of state public accommodations-sexual orientation/gender identity laws threaten health care rights of conscience.
Decisions in high-profile cases involving alleged sexual-orientation discrimination in public accommodations set an ominous precedent for any upcoming gender-identity discrimination cases within health care.
First, in North Coast Women’s Care Medical Group Inc., v. San Diego County Superior Court, the California Supreme Court ruled in favor of the lesbian patient who claimed sexual-orientation discrimination because two physicians conscientiously refused to provide intrauterine insemination to facilitate her pregnancy within a same-sex relationship. The court ruled that, under California’s Unruh Civil Rights Acts (which includes a public accommodations-sexual orientation/gender identity, or PA-SOGI, law), religious liberty did not protect the conscientiously objecting physicians from patient claims:
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
The opinion in North Coast suggests that, in upcoming gender-identity lawsuits, conscientiously objecting health care professionals in California and around the country will not be free to follow their consciences. That is to say, doctors who conscientiously refuse gender-transition services in clinical scenarios similar to those under discussion will be subject to fines and penalties for following their moral and medical convictions.
Second, the following court decisions in high-profile sexual-orientation discrimination cases involving claims from gay couples against conscientiously objecting wedding vendors do not bode well for the outcome of future gender-identity discrimination suits against clinicians who conscientiously refuse to provide gender-transition services:
(A) The Supreme Court of New Mexico ruled that the First Amendment does not protect photographer Elaine Huguenin’s right to decline to take pictures of a same-sex commitment ceremony.
(B) Oregon’s Bureau of Labor and Industries issued a ruling that Melissa and Aaron Klein, in their refusal to bake a cake for a same sex couple’s reception, violated Oregon’s PA-SOGI law.
(C) Washington State’s attorney general filed suit against Baronelle Stutzman because, by refusing to arrange flowers for a gay couple’s wedding ceremony, she violated the states PA-SOGI law.
From these sexual-orientation discrimination cases, we can reasonably predict that court decisions in transgender patient-initiated lawsuits would likely favor the plaintiff over the conscientiously objecting health care professional.
The US Constitution cannot fully protect health care rights of conscience.
It is true that the First Amendment expressly constrains government from enacting laws that infringe upon the free exercise of religion. However, as the Supreme Court’s 1990 decision in the landmark case of Smith indicates, state laws of general applicability—like PA-SOGI laws—that impinge upon religious liberty may nevertheless be valid and may very well prevail.
The decision in Smith, then, would not necessarily support the First Amendment religious liberty of conscientiously objecting health care professionals against claims from their transgender patients based on Obamacare’s GIM and state PA-SOGI laws.
The US Congress cannot fully protect health care rights of conscience.
Conscience protection for physicians provided by current federal statutes is narrowly defined. The Church Amendment, for example, states that hospitals or individuals who receive federal funds in various health programs and who object because of moral or religious convictions will not be required to participate in abortion and sterilization procedures. But, as you can see, the objectionable gender-transition therapies just highlighted in the prospective clinical cases do not involve abortion and would only be secondarily opposed on the basis of their sterilizing effect on the patient.
However, a physician who conscientiously refuses to provide gender-transition therapies might appeal to section 300a-7(d) of the Church Amendment:
No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.
Nevertheless, it seems to me that one cannot reasonably rely on such an appeal for conscience protection in federal or private gender-identity lawsuits, given that the decision in the North Coast case failed to do so.
The Hyde/Weldon Conscience Protection Amendment forbids state or federal governments from forcing physicians, nurses, hospitals, health insurance companies, and other health care entities to perform, pay for, provide coverage of, or refer for abortions. This federal conscience-protection statute would not, therefore, protect physicians who conscientiously refuse to offer gender transition interventions.
In 1993, the US Congress reacted to the implications of Smith by enacting, in bipartisan fashion, the Religious Freedom Restoration Act (RFRA). The act provides in part that:
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person
(1) Is in furtherance of a compelling governmental interest; and
(2) Is the least restrictive means of furthering that compelling governmental interest.
This restriction on government authority applies even if the burden results from a rule of general applicability.
However, in City of Boerne v. Flores, the US Supreme Court, in an opinion by Justice Anthony Kennedy, struck down the federal RFRA as an unconstitutional use of Congress’ enforcement powers as it applies to the states. Hence, according to the Supreme Court, RFRA remains applicable to the federal government, but it does not apply to the states. Kennedy’s decision gainsays the insistence of HHS that the federal RFRA would protect physicians who conscientiously object to provision of gender-transition therapies.
“Right to privacy” protections threaten health care rights of conscience.
The Due Process Clause of the Fourteenth Amendment has become a significant constitutional vehicle for Supreme Court decisions that define a “substantive sphere of liberty”—“a right to privacy”—within the penumbras of the Constitution, a right that extends to a broad range of personal decisions: prevention of pregnancy, sexual relationships, abortion, same-sex marriage, and now, in all likelihood, gender change.
The US government is taking the side of gender ideology (sex as gender identity) over that of biology (sex as biology).
HHS and the Obama administration make several ideological assumptions in the GIM. First, they completely endorse the solipsistic argument that, because the individual’s feeling of gender is a subjective sense, something that exists in the person’s mind or emotions, it cannot be questioned by outsiders. Second, they categorize any attempts to change the “personal truth” of anyone questioning their gender, including underage children, as tantamount to abuse. Third, they consistently suppress inconvenient truths from long-term studies: transgendered persons, beginning 10 years after their sex reassignment surgery, experience increasing mental difficulties and suffer a suicide morality rate 20 times that of non-transgendered persons.
The transgender bathroom and homeless shelter regulations from a myriad of federal agencies—the Department of Education, the Department of Housing and Urban Development, the Department of Justice—ideologically aligned as they are with the GIM regulations, are a thumb on the scale favoring the civil liberty rights of transgender individuals over the conscience rights of public service providers like the physicians highlighted here.
Given this federalized gender ideology, US citizens must unite on behalf of conscience protection in all public services, including health care delivery, for at least two reasons. First, gender identity-based conscience coercion is just lying in wait within Obamacare’s GIM. Second, our current legal, judicial, and political environment views an appeal to conscience as nothing more than a pretext for discrimination.
It is incumbent on conscientious citizens, therefore, to urge their representatives in government to support the passage of conscience protection legislation and to align with their sympathetic state lawmakers to pass comprehensive state health care conscience protections statutes like those on the books in Mississippi and Louisiana.
 45 Code of Federal Regulations β 92 at Federal Register, Vol. 81, No. 96 (May 18, 2016).
 Ibid., commentary on β 92.206, p. 31428: “A majority of commenters strongly supported the requirement that covered entities provide equal access to health programs and activities without discrimination on the basis of sex and treat individuals consistent with their gender identity.” Considerable ink has been spilled in showing that Congress defined “sex” in the sex discrimination prohibition of Section 1557 of the ACA as biological sex not as gender identity.
 Ibid., comments section, p. 31455: “Although a large number of providers may already be subject to state laws or institutional policies that prohibit discrimination on the basis of sex in the provision of health services, the clarification of the prohibition of sex discrimination in this regulation, particularly as it relates to discrimination on the basis of sex stereotyping and gender identity, may be new” (italics mine). Substitute “may be new” with “are new” and that would square with reality. The GIM is the first Federal civil rights statute that defines sex discrimination in the provision of health services to include any conscientious physician’s health service refusal that (according to HHS interpretation) is gender identity-based.
 Ibid., β 92.4, p. 31467: “Gender identity means an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth. The way an individual expresses gender identity is frequently called ‘gender expression,’ and may or may not conform to social stereotypes associated with a particular gender. A transgender individual is an individual whose gender identity is different from the sex assigned to that person at birth.”
 45 Code of Federal Regulations β 92, Executive Summary, p. 31380.
 Ibid., β 92.206, p. 31428: “. . ., a covered entity may not deny, based on an individual’s identification as a transgender male, treatment for ovarian cancer where the treatment is medically indicated.”
 McHugh [http/www.wsj.com/articles/paul-mchugh-transgender-surgery-isnt-the-solution-1402615120 ]
 45 Code of Federal Regulations β 92, “Summary of Regulatory Changes,” p. 31433 exemplifies the same prejudicial assumption that appeals to conscience are mere pretexts for discrimination: “OCR [Office of Civil Rights] will evaluate whether a covered entity utilized, in a nondiscriminatory manner, a neutral rule or principle when deciding to adopt the design feature or take the challenged action or whether the reason for its coverage decision is a pretext for discrimination. . . . Covered entities will be expected to provide a neutral, nondiscriminatory reason for the denial or limitation that is not a pretext for discrimination.”