How to Battle Biden’s Regulatory Leviathan and Win (Even on LGBT Issues)

Published April 29, 2022

National Review Online

It seems like every other week, a new gender-identity announcement has come out of the Department of Health and Human Services (HHS). See here, here, here, here, here, here, here, and here. This flood was expected after President Biden appointed a leftist, Xavier Becerra, as HHS Secretary and transgender-activist par excellence, Dr. Rachel (formerly Richard) Levine, as Assistant Secretary of Health. But a funny thing happened on the way to transforming HHS into the Department of Health and Gender Services. The Centers for Medicare & Medicaid Services (CMS), an HHS sub-agency, just abandoned its plans to force millions of people to pay for other people’s transgender treatments by declaring them “essential health benefits” under proposed Obamacare insurance regulations. You may be wondering how this surprising about face came to pass. It was because a dedicated coalition of advocates discovered this radical proposal to transform health care and used nothing but their knowledge and voices to block it.

Here’s how we did it.

Literally one of the first things Biden did after entering office was sign an Executive Order giving every federal agency 100 days to submit a plan to “promulgate new agency actions” to further the LGBT agenda, including with respect to “access to healthcare.” In keeping with this promise, last October, HHS bragged that it had launched a pilot program requiring transgender insurance coverage in Colorado that included “eye and lid modifications, face tightening, facial bone remodeling for facial feminization, breast/chest construction and reductions, and laser hair removal.” So, if you are in Colorado, there is a good chance your insurance premiums are helping to pay for breast implants and chin tucks for biological men.

As I told the Washington Post at the time that, “This is a liberal administration and governor colluding to mandate coverage for a lifetime of cross-sex hormones and removal of healthy organs, including for minors. . . . Their end game is clear, to push these dangerous experimental treatments on kids and unwilling families as a national insurance mandate.”

I hate to say I told you so, but . . . allow me to direct you to January 5 of this year, when CMS posted a 408 page proposed regulation innocuously titled “Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2023.”

Normally, these sorts of regulations contain lots (and lots) of boring technical insurance changes that only an ERISA lawyer could love. But not with this administration. It took this anodyne regulation as a golden opportunity to impose the “essential health benefits” transgender-insurance mandate nationwide. Quietly unveiling such a major change in such an unlikely place — during the holiday season no less — is bad enough, but giving the public a mere 22 days (instead of the typical 60) to submit comments on the regulation reeks of cynicism and disrespect. The Biden people clearly hoped the American public wouldn’t notice, and most people didn’t. But not everyone.

Because I had successfully worked to restore the scientific and biological understanding of sex at HHS while a senior official there during the Trump administration, I had a personal interest in this issue and wasn’t about to let this one slip by without a fight.

So, after rallying like-minded folks and several long nights of drafting, I, along with my EPPC colleagues Rachel Morrison, Ryan Anderson, and Mary Hasson, submitted formal comments to the agency opposing the rule, as did my colleagues at the Heritage Foundation, five Senate and 20 House Republicans, the Christian Employers Alliance, the Christian Medical & Dental Associations, the Family Policy Alliance, the Family Research Council, the Southern Baptist Ethics & Religious Liberty Commission, as well as the United States Conference of Catholic Bishops, Christian Legal Society, National Association of Evangelicals, National Association of Catholic Nurses, U.S.A., The National Catholic Bioethics Center, and Thomas More Society (jointly).

We objected to the rule enshrining bad medicine into law, especially concerning children. We objected to the rule’s coercion. We objected to its exorbitant costs. We objected to the breaks with proper procedure. We also substantiated all the above with evidence.

In the face of this coordinated response, and to my genuine surprise, yesterday, HHS caved. It completely abandoned the transgender-insurance portions of the proposed rule, saying that they would deal with the issue in a future rulemaking under antidiscrimination provisions known as Section 1557 of Obamacare. This allowed HHS to finalize the bulk of the technical, boring parts of the rule without having to respond to our comments. Unbeknownst to most citizens, federal agencies are required by law to read, evaluate, and respond to substantive comments submitted on before the deadline for major rules. Here, HHS choose to raise the white flag, at least for now, in order to avoid having to deal with the many weighty objections we raised, even though the proposed rule was explicitly justified as furthering a presidential priority. Our comments caused internal debate and dissension within the Biden administration about priorities and resources resulting in the scrapping of the original plans. This tremendous victory was achieved solely because a group of us exercised our rights to petition the government for a redress of grievances. See Amend. I, U.S. Const.

Will this radical administration try to impose a transgender mandate again in the future? Absolutely. But now, they will have to start the process all over again, and when that time comes we will be ready, and next time, we’re bringing friends.

Roger Severino is a senior fellow at the Ethics and Public Policy Center, where he heads the HHS Accountability Project.

Roger Severino is a former senior fellow at the Ethics and Public Policy Center.

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