Published May 20, 2021
For those who naively thought President Joe Biden would choose science over his culture-warrior base, it is time to think again. Last week, Secretary of Health and Human Services Xavier Becerra and Assistant Secretary of Health Dr. Rachel Levine announced the Department of Health and Human Services (HHS) will interpret “sex discrimination” prohibitions under Obamacare to include sexual orientation and gender identity.
This policy attempts to undo a 2020 regulation I put in place as head of the HHS Office for Civil Rights under President Donald Trump. That regulation restored “sex” to its original, and still common-sense, public meaning—namely, that sex is based on an immutable, biological, genetic, binary and objective understanding of male and female. Nowhere does this scientific understanding of sex matter more than at HHS which, for good or ill, funds much of our health care system and medical research.
Indeed, HHS’s National Institutes of Health (NIH) matter-of-factly states that “every cell has a sex,” but after last week’s announcement, this fact constitutes wrongthink. As of this writing, NIH still requires its 80,000 research grant applicants to account for sex as a biological variable in all animal and human studies. That’s because it knows that a person’s immutable sexual biology explains in significant part why men and women respond differently to medication, vary in their experience and manifestation of pain, and have disparate susceptibility to illnesses, from heart disease and cancer to psychological conditions such as depression and anxiety. Sex in medicine and research is to be replaced by subjective “gender identity,” male and female by a never-ending spectrum, biology by placeholders assigned at birth and mothers by “birthing persons.” In short, ideology is supplanting science, and it won’t be long before NIH will be required to get even more “woke” than it already is.
HHS claims its announcement is about making sure bigoted doctors won’t refuse to set a broken bone in an emergency room simply because they don’t like transgender patients. Such doctors, of course, don’t exist today (if they ever did), because they would quickly lose their licenses and be sued out of business. The real point of the announcement is to threaten to cut Medicare and Medicaid funds from any qualified doctor or hospital that declines to remove healthy reproductive organs from people with gender dysphoria, including minors. It will likely require insurance companies to use pooled premiums to subsidize a range of questionable treatments—which may include sterilizing elective surgeries, breast implants in men, tracheal shaves, professional voice training to deepen or raise pitch and a lifetime of cross-sex hormones. It means scientists and doctors must accept that a person’s sex is whatever the person says it is, regardless of the effect on research or standard medical practices.
Sound unlikely? Consider the actual case from 2019 of a person admitted to an emergency room with severe abdominal pain and tracked according to a male gender identity. Unbeknownst to the triage staff, the patient was actually a woman in late-stage labor. The result was the stillbirth of a very real human child who possibly could have been saved but for gender identity politics distorting the truth of the situation. These and other dangers await if we abandon biology in health care, but HHS under Biden is plowing ahead regardless.
Precisely how many genders are we now required to recognize? Which cross-sex treatments will doctors be forced to administer? And will HHS allow any religious exemption? There is no way to know, because the announcement doesn’t say. It seems Becerra and Levine want to intimidate scientists, health care providers and insurers into bowing to gender identity politics without having to explain their actions to the public. Why bother with soliciting, reading and painstakingly responding to hundreds of thousands of public comments on this issue—as the Trump administration did—when an agency can simply change the rules governing Americans’ health care through a simple press release?
This move is not just bad policy; it’s unlawful. Announcing immediate enforcement of gender identity policy contradicts an existing federal district court injunction and flouts the Administrative Procedure Act’s requirement of public notice and comment for rule-making changes of this magnitude.
Becerra argues that Justice Neil Gorsuch’s (misguided) opinion in last year’s Supreme Court case Bostock v. Clayton County settled the “gender identity” question, but it did not. That decision limited its redefinition of sex discrimination to the context of employment, and certainly did not overrule the injunction that prohibited the Obama and Trump HHS from doing exactly what the Biden HHS is now doing. Bostock actually presumed a binary, not infinitely malleable, understanding of sex—and did nothing to relieve HHS of its duty to go through the formal rule-making process.
Since the Bostock decision, the U.K. High Court of Justice has banned the use of puberty blockers for children because of the long-term health and psychological risks. Here in America we’ve seen transgenderism in children explode after being egged on by the media, education and big business resulting in clustering of girls identifying as boys beyond all statistical probability, and the rise of biological boys who identify as girls dominating girls’ athletics. People of good will, especially parents and women, have had enough and they are pushing back with pro-child, pro-woman and pro-conscience legislation at the state level, demanding, at the very least, a pause in the transgender culture wars. But not Biden, Becerra and Levine. They see now as the time to strike and consolidate their gains well before the next presidential election. But I suspect they will come to discover that biological realities cannot be so quickly or easily erased.
Roger Severino is Senior Fellow at the Ethics & Public Policy Center where he directs the HHS Accountability Project. He was Director of the HHS Office for Civil Rights from 2017 to 2021.