EPPC Scholars Submit Public Comment Opposing HHS Section 1557 Proposed Transgender Mandate in Healthcare


Published October 3, 2022

On October 3, 2022, EPPC scholars Roger Severino, Rachel N. Morrison, and Mary Rice Hasson submitted a public comment opposing a proposed rule by the U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights and Centers for Medicare & Medicaid Services that would impose a radical transgender mandate in health care.

Under the proposed regulations, HHS would redefine “sex discrimination” prohibitions under Section 1557 and other insurance provisions of the Affordable Care Act to require doctors to perform and insurers to cover a dangerous and expensive array of “gender identity” treatments and surgeries, including for minors.

The proposed regulations would trample the conscience and religious freedom rights of medical professionals. They also threaten the rights of providers and insurers to decline to assist or pay for elective abortions.

The EPPC scholars wrote:

“The Proposed Rule would radically remake American healthcare by replacing science-based medicine with ideology-driven mandates. As proposed, the Rule is arbitrary and capricious, exceeds statutory authority, and is unlawful and unconstitutional. The primary proposed changes are unsupported by substantial evidence. The Proposed Rule contradicts long-standing scientific understandings of human biology and thereby endangers public health. The Proposed Rule turns the clock back on girls’ and women’s rights, tramples parental rights, harms children’s interests, dismantles sex-based patient protections, and violates religious freedom and conscience rights of medical professionals, hospitals, and religious institutions. The Proposed Rule inverts our civil rights law and should be withdrawn and abandoned.”

The comment raises additional points about the Proposed Rule’s destructive impacts in the real world:

  • “The Proposed Rule will drive out faith-based hospitals and medical providers which will especially hurt poor and rural communities.”
  • “The Rule would require pregnant women who identify as men to be treated “consistent with the individual’s gender identity” which can and has led to disaster.”
  • “The Rule will predictably result in the infliction of devastating permanent physical and psychological harm to children who doctors will reasonably feel bound to place on puberty blockers and cross-sex hormones and to sterilize through the removal of healthy reproductive organs for fear of being sued for “gender identity discrimination” under the Proposed Rule.”
  • “The risks of inflicting severe physical and psychological trauma to families by not only encouraging, but mandating, medical “transition” and social conversion of children, ostensibly to another sex, cannot be understated and includes an elevated risk of suicide.”

The EPPC scholars conclude: “It will be the height of arbitrariness and capriciousness to finalize such a dangerous rule in the face of these and the many other grave harms identified in this comment when they are not only not mandated by Congress, but go against the very statute the Proposed Rule purports to enforce.”

Read EPPC’s press release about EPPC’s and others’ comments here.

Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she works on EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.

Roger Severino is a Senior Fellow at the Ethics and Public Policy Center, where he works on EPPC’s HHS Accountability Project. Mr. Severino is a national authority on civil rights, conscience and religious freedom, the administrative state, and information privacy, particularly as applied to health care law and policy. He is a regular contributor to National Review Online and tweets at @RogerSeverino_.


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