Despite assurances from President Joe Biden’s administration, the Department of Health and Human Services’ (HHS) new rule for healthcare providers could end up forcing religious hospitals and doctors to perform child sex-change procedures, legal experts told the DCNF.
The rule, which HHS issued on April 26 under the Affordable Care Act, bars healthcare and insurance providers who receive federal funding from denying care due to a patient’s gender identity or sexual orientation. While HHS claimed that the rule “respects” federal protections for religious freedom, legal experts told the DCNF that the rule will likely force religious healthcare providers to choose between their faith and providing procedures they object to, such as sex-change surgeries for minors. (RELATED: Biden Admin Releases Finalized Rules Expanding Title IX Protection To Transgender Students)
Florida filed a lawsuit Tuesday against HHH, arguing that the rule would “force Florida to violate its own law” prohibiting hormone treatments and gender surgeries for minors.
“Biden and his federal bureaucrats are trying to go around our child-protection law to force the state to pay for puberty blockers and gender-transition surgery for children,” Florida Attorney General Ashley Moody said in a statement.
The rule is an expansion of a similar provision during the Obama administration, which was then removed in June 2020 during former President Donald Trump’s term in office. Healthcare providers cannot “deny or limit health services, including those that have been typically or exclusively provided to, or associated with, individuals of one sex, to an individual based upon the individual’s sex assigned at birth, gender identity, or gender otherwise recorded.”
Additionally, the rule removed some protections for religious groups by requiring HHS to approve religious exemption requests on a case-by-case basis, instead of providing more blanket coverage such as in Title IX, which provides religious exemptions for all educational organizations controlled by a religious entity. HHS argued in the final rule that including similar language to Title IX would “undermine” the purpose of the guidance and prevent people from accessing care.
However, the new guidance will likely be used as a “backdoor entry to a hard-left liberal wish list,” according to Sarah Parshall Perry, a senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.
“Just as it’s done with Title IX of the Education Amendment, the Biden administration has now turned any hospital that receives federal funding, into an elective abortion clinic or gender-‘affirming’ care clinic,” Parshall Perry told the DCNF. “How? By expanding the definition of ‘sex’ to include gender identity – something that’s incorporated into the text of 1557 by Biden’s nefarious Title IX rule.”
#BREAKING: The Biden Admin just decreed that doctors nationwide must perform gender transitions or suffer federal penalties: https://t.co/oDfqCfAw3X. This scheme is bad for patients, bad for religious liberty, and illegal. 🧵
— Luke Goodrich (@LukeWGoodrich) April 26, 2024
Parshall Perry also noted that the department’s failure to provide stronger protections for religious providers was telling and encouraged medical professionals to “buckle up.”
“In its initial press release on the rule, HHS said it will make a ‘case-by-case’ determination about any applicable religious liberty or conscience protections,” Parshall Perry told the DCNF. “HHS notes that a ‘case-by-case approach to such determinations . . . will allow it to account for any harm an exemption could have on third parties.’ So a word of advice to religiously affiliated hospitals, clinics, or medical professionals—buckle up. It’s going to be a bumpy ride.”
When the rule was first proposed in 2022, 20 attorneys general, headed by Jonathan Skrmetti of Tennessee, sent a letter to the department, expressing concerns about the lack of protections for religious medical professionals. The attorneys general argued that the rule would chill “the exercise of religion” by forcing the companies and providers to “justify” their exemptions and prevent religious providers from serving “minority and other underserved and low-income populations.”
“There’s not a clear, bright line if you’re a religious organization with an objection to this, unlike what older versions and Title IX had,” Justin Butterfield, the deputy general counsel at First Liberty Institute and formerly the senior advisor for Conscience and Religious Freedom at HHS, told the DCNF. “It requires these providers to explain what their religious beliefs are and see if the government agrees with them.”
Doreen Denny, a senior advisor for Concerned Women for America, told the DCNF that if religious providers are forced to go to court they will have the testimony of “whistleblowers” and evidence from recent studies “proving these procedures don’t help” to strengthen their case.
A federal appeals court ruled in December 2022 that President Joe Biden’s administration could not force private hospitals to perform sex-change operations after several Catholic healthcare groups and medical centers filed a lawsuit in 2016 over a similar rule. Butterfield told the DCNF that at the end of the day, the real concern was the “different priorities” of the current administration.
“This administration has different priorities than previous administrations and unfortunately, a lot of times people of faith are the losers in that,” Butterfield said. “There’s less interest in providing the protections for religious objections than we’ve had historically.”
HHS did not respond to the DCNF’s request for comment.
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