House Republicans Ask HHS to Explain Transgender Rule

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By Mary Anne Pazanowski

Oct. 12 — House Republicans demanded the HHS clarify a rule that, they said, requires doctors to perform gender transition surgery on patients, including children, even if it goes against their medical judgment.

The final rule, Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31375, to be codified at 45 C.F.R. pt. 92, went into effect in July. It was issued under the Affordable Care Act's nondiscrimination provision, Section 1557.

The lawmakers' Oct. 6 letter appears to pile on to an August lawsuit in which Catholic health-care providers and five states sued to stop the Department of Health and Human Services from enforcing the rule. They said the new regulation “would force doctors to ignore science and their medical judgment and perform gender transition procedures.” The complaint was filed in the U.S. District Court for the Northern District of Texas (164 HCDR, 8/24/16).

‘Significant Concerns.'

Over 45 House members, led by Rep. Joe Pitts (R-Pa.), wrote that they had “significant concerns” about the rule, including whether it forces doctors to act against their best medical judgment and perform procedures they believe will harm their patients.

Medicare and Medicaid don't require coverage of gender transition surgery, the lawmakers said, because studies have been inconclusive as to whether the surgery improves health outcomes for patients with gender dysphoria. Meanwhile, the rule “requires virtually every private physician, healthcare provider, and health insurance plan in the country to do otherwise,” the letter said.

The claims mirror those in the lawsuit. Section 1557, as interpreted by the rule, requires covered entities to perform transition-related medical procedures if they offer analogous services in other contexts.

The complaint said this means providers must offer those services, regardless of their medical judgment. Thus, “with a single stroke of the pen, HHS has created a massive new liability for thousands of health-care professionals unless they cast aside their medical judgment and perform controversial and even harmful medical transition procedures,” the complaint alleged.

The Becket Fund for Religious Liberty, headquartered in Washington, is representing the plaintiffs in the lawsuit. Senior Counsel Lori Windham told Bloomberg BNA in August the “sweeping” law and regulation “will impact virtually every doctor in the U.S.” It will force them to engage in activities against their medical judgment and, in some cases, against their religious beliefs, she said.

Rule Doesn't Trump Judgment

Transgender rights advocates disagreed with the plaintiffs. Kenneth Upton, senior counsel at New York-based Lambda Legal, told Bloomberg BNA in August it doesn't appear the plaintiffs read the regulation very closely. Upton is in Lambda Legal’s South Central Regional Office, based in Dallas.

Nothing in the regulation trumps doctors' medical judgment or precludes them from acting in accordance with evidence-based protocols, he said. The regulations also say nothing about children.

The federal government isn't forcing doctors to provide transition-related care for transgender people, Upton said. The rule only requires providers, insurers and others to have neutral, nondiscriminatory reasons for denying services or coverage for services that they provide in non-transition related contexts, he said.

River City Gender Alliance and the American Civil Liberties Union of Texas Sept. 16 moved to join the lawsuit to defend the regulation. The HHS Oct. 7 opposed the motion, saying it can adequately defend the plaintiffs' claims.

The court Oct. 7 gave the plaintiffs an extension to file their response to the RCGA/ACLU's motion to intervene, saying they have 14 days after the HHS files its response to the complaint.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bna.com

To contact the editor responsible for this story: Peyton M. Sturges at psturges@bna.com

For More Information

The letter is at http://src.bna.com/jkq.

The ACLU's motion it at http://src.bna.com/jkr.

The HHS's response to the motion it opposed is at http://src.bna.com/jkx.

The court's order extending the due date for the plaintiffs' response is at http://src.bna.com/jkw.

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