Xavier Becerra, secretary of the U.S. Department of Health and Human Services (HHS), is wasting no time in pushing the radical Biden administration agenda. Today, HHS announced that it will begin interpreting and enforcing both Section 1557 of the Affordable Care Act and Title IX's prohibition of "sex discrimination" to include sexual orientation and gender identity.
During the Obama administration, HHS issued a regulation redefining sex along these same lines, but it was never implemented due to litigation. Then, during the Trump administration, HHS finalized a rule that maintained robust protection of civil rights, as well as a scientific understanding of the word "sex."
The Trump-era rule was a great victory for science-based health care. If patients, including those who identify as transgender, are to receive appropriate care, medicine must be based in science. Here are a few examples of the poor patient care that results when science is not foundational to medicine:
- A biological woman who identified as a man and was listed as a man on medical records was assessed for kidney disease as a man. This resulted in treatment missteps that nearly resulted in death.
- A biological woman who identified as a man appeared to be a masculine, overweight man to hospital staff. Therefore, they had no reason to think the patient was pregnant and in labor. Sadly, the patient did not receive immediate care and delivered a stillborn baby. The doctor noted that the male classification "threw us off" from the patient's actual medical needs.
Today's HHS announcement will only lead to more incidents of poor patient care like the ones noted above. It could also lead to medical professionals who understand the medical harms of hormones and surgery for "gender transition" purposes being silent about these harms, out of fear of being sued and punished for "discrimination." Furthermore, it could lead to significant erosion of the conscience rights of medical professionals who have moral objections to "gender transition."
As noted by Roger Severino, former Director of the Office of Civil Rights at HHS, "Becerra is trying to change the fundamental practice of medicine and science by the stroke of a pen [... and, ...] "instead of respecting scientists and doctors who recognize objective biological realities in their professions, [he is branding] them as bigots at risk of losing HHS funds."
This new HHS policy is an update based on the Supreme Court's Bostock v. Clayton County decision (which redefined "sex discrimination" in employment law), and an executive order regarding this case. Earlier this year, in response to the court's decision, President Biden issued an executive order that mandated the adoption of Bostock's redefinition throughout the federal government -- not just in areas having to do with employment -- and specifically mentioned Title IX of the Education Amendments of 1972, as does this HHS announcement.
This HHS announcement is just another step in an already long line of actions by this administration to obliterate women's sports. Another executive order issued by Biden called for the promotion of the LGBT agenda in schools. Meanwhile, the Department of Education (ED) has withdrawn the previous administration's letter of findings against the Connecticut Interscholastic Athletic Conference for violating Title IX by allowing biological boys to compete in women's sports, and archived a Trump administration memo on Bostock stating that "sex" in Title IX was still defined biologically. In addition, the Biden Department of Justice issued a memo applying Bostock to Title IX.
Today's announcement states that HHS will follow the Religious Freedom Restoration Act (RFRA), our nation's flagship religious liberty statute. However, this administration supports multiple, ongoing legislative efforts to gut RFRA. Thankfully, that hasn't happened yet, and there is also legislation at the federal and state levels to protect both women's sports and minors from medical experimentation. It remains to be seen what the Biden administration's broad application of Bostock will ultimately mean for medicine, women's sports, and conscience rights. Let us work and pray that more harm is not done.