Published August 30, 2022
The medical profession should care about the Biden Education Department’s proposed Title IX regulations on sex discrimination in federally funded education programs and activities. And I don’t mean just medical students and schools.
Let me explain.
A different federal law, Section 1557 of the Affordable Care Act, which prohibits sex discrimination in federally funded health-care programs or activities, does so by incorporating Title IX’s prohibition against sex discrimination. Thus, whatever Title IX regulations say about sex discrimination in the education context will have a direct impact on the medical profession.
In June 2022, on the 50th anniversary of Title IX, the Department of Education announced proposed regulations that would fundamentally rewrite the historic civil-rights law.
If adopted, Biden’s Title IX regulations would greatly expand the scope of what is considered sex discrimination. Perhaps most significantly, sex discrimination would be radically defined and expanded to include discrimination based on “gender identity” and “termination of pregnancy” (which covers elective abortions). Not only would this proposal have a negative impact on women’s bathrooms, dorm rooms, and sports teams, but with Title IX’s direct implications on 1557’s interpretation and enforcement, it could have dire consequences for the medical profession.
Indeed, other recently proposed regulations directly on 1557 by the Department of Health and Human Services (HHS) would mirror the definition of sex discrimination in the proposed Title IX regulations.
Under the proposed 1557 regulations, it would be illegal to “deny or limit health services sought for purposes of gender transition or other gender-affirming care that the covered entity would provide to an individual for other purposes if the denial or limitation is based on a patient’s sex assigned at birth, gender identity, or gender otherwise recorded.” In short, doctors and hospitals would be required to provide patients, including children, with puberty blockers, cross-sex hormones, and gender transition surgeries. And insurance providers would be required to cover these expensive drugs and procedures.
These mandates are appalling considering medical interventions for “transitioning” can cause significant and irreversible harms, such as removal or mutilation of healthy body parts, infertility, and loss of sexual function. This so-called “gender-affirming care” can condemn patients to a lifetime of medical complications and treatments.
As increasingly common testimonies of “detransitioners” reveal, medical transition is often rushed, with attendant risks and long-term impacts glossed over or ignored. Indeed, it is questionable whether children (or even young adults) can truly give informed consent for such medical interventions when they are too young to understand and appreciate the significance of losing their ability to have children, breast-feed, or experience sexual intimacy.
Nevertheless, in accord with the Biden administration’s preferred gender-ideology policy priority, the federal government is pushing medicalized “transition” of children through executive order, agency “guidance,” and federal regulations, specifically under Title IX and 1557.
But what about legal protections for medical judgment, conscience, or religious beliefs?
While HHS acknowledges and promised to comply with federal conscience and religious-freedom-protection laws that protect medical professionals from having to perform or assist with abortion or sterilization (which includes sterilizing gender-transition interventions), this promise rings hollow. The proposed 1557 regulations opt to not incorporate Title IX’s “abortion neutrality” provision, and HHS under Secretary Xavier Becerra has been characterized by a pro-abortion and anti-conscience-rights agenda, even going so far as to abandon a nurse illegally forced to participate in an abortion against her known conscience objection.
The proposal also states that while an individual assessment that gender-transition treatments are not appropriate in a particular case is permissible, “a provider’s belief that gender transition or other gender-affirming care can never be beneficial for such individuals (or its compliance with a state or local law that reflects a similar judgment) is not a sufficient basis for a judgment that a health service is not clinically appropriate.”
HHS is using a nondiscrimination law to push a medical standard of care. But (as my colleague, Mary Rice Hasson, and I detail here) there is no consensus within the medical community over the appropriate standard of care for patients, especially children, who have gender dysphoria or identify as transgender.
Doctors, nurses, hospitals, pharmacies, and others that do not want to be beholden to the Biden administration’s radical gender ideology or federally funded abortion agenda can oppose the proposed regulations by submitting written public comments (here and here). The Title IX comment deadline is Monday, September 12, while the 1557 comment deadline is Monday, October 3. (See this helpful guide on public comments on agency regulations.)
Only opposing 1557 regulations will not be enough, as HHS or a single federal court anywhere in the country could hold that since 1557 explicitly incorporates Title IX, the Department of Education’s interpretation of that statute is dispositive to interpret and apply 1557.
These regulations will have disastrous implications for the medical profession. Now is the time for the medical community to speak up and speak out.
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.