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From Health Law Daily, August 24, 2016

Lawsuit argues HHS overstepped requiring provision of transition procedures, redefining ‘sex’

By Kayla R. Bryant, J.D.

Several states and some physician organizations are suing HHS Secretary Sylvia Burwell in her official capacity, arguing that an HHS regulation that redefines the term "sex" to include gender identity violates federal laws. The complaint, filed in the U.S. District Court for the Western District of Texas asserts that this regulation and the related Final rule would require insurance plans to cover and doctors to perform medical procedures intended to alter a patient’s sex, even if the doctor believes that a procedure may result in long-term harm. In support of their arguments, the parties, represented by the Becket Fund for Religious Liberty, state that HHS is attempting to redefine a term that has a consistent historical use in legislation. Coverage and responses to the complaint have been swift to appear.

Regulation. The regulation stems from section 1557 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), that incorporates non-discrimination provisions of existing laws to ensure that no person can be denied federally-funded health benefits due to race, color, origin, sex, age, or disability. As explained in the complaint, this section does not define the term "sex," and the basis for prohibiting this type of discrimination is Title IX, 20 U.S.C. §1681 et seq. HHS proposed a change to 45 C.F.R. section 92.4, which broadly extended the definition of "sex" to include several terms, including gender identity, sex stereotype, and termination of pregnancy. The final rule (81 FR 31375) expanded the definition further, to include an internal sense of gender, including those on a spectrum. This regulation applies to entities and individuals that participate in health programs and activities that receive federal funding from HHS, which is likely to include almost all licensed physicians because of payments from Medicare and Medicaid.

Requirements for professionals. Under the rule, covered employers and health care providers and professionals must perform medical transition procedures, if those procedures are offered in other contexts. If a provider performs medically necessary hysterectomies, it would be required to perform them on a transgender man in the same manner it performs the procedure for any other patient. HHS stated that in such a situation, a hysterectomy would be medically necessary for the treatment of gender dysphoria. The complaint argues that risks and ethics related to medical transition procedures are widely debated, including within the transgender community, and that HHS is "declaring medical necessity, benefit, and prudence as a matter of federal law, and without regard to the opinions, judgment, and conscientious considerations of the many medical professionals that hold views to the contrary."

Violations. The parties argue that the rule and regulation violate the Administrative Procedure Act (APA), as they are considered agency action that are not in accordance with law, specifically 5 U.S.C. §706(2)(A), by making medical professionals perform procedures that may not be necessary and may be harmful to patients. The complaint lists a number of various laws and constitutional amendments that the parties believe are violated, including several First Amendment protections as well as the Religious Freedom Restoration Act (RFRA) (42 U.S.C. § 2000bb).

Early response. A Think Progress article strongly opposes the assertions in the complaint. The complaint refers to standards of care and argues that transitional procedures are still experimental. These views directly oppose the World Professional Association for Transgender Health (WPATH), which has established and updated several standards of care for transgender patients. WPATH recommends affirming transgender identities and finds that gender transition improves well-being. Think Progress points out that the Christian Medical and Dental Associations (CMDA) and Franciscan Alliance, both parties in the case, have differing views on gender identity based on religious beliefs.

Companies: The Becket Fund for Religious Liberty; Think Progress; Franciscan Alliance, Inc.; Christian Medical & Dental Associations

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