WASHINGTON — On the same day that the U.S. Department of Justice and the U.S. Department of Education threatened to revoke funding for public schools that do not allow students to use the restroom and locker room that correlates with their “gender identity,” the Department of Health and Human Services (HHS) also released guidelines requiring federally-funded hospitals that may require hospital systems to perform sex change operations or similarly lose funding.
The rules pertain to language in the Affordable Care Act (ACA), otherwise known as Obamacare, and affects all hospitals that accept Medicare or Medicaid, as well as those directly funded by HHS. (Read in full here.)
The government asserts that the rules build upon the Civil Rights Act of 1964 and the Education Amendments of 1972, which the Obama administration has interpreted in recent months as applying to “gender identity.”
“Section 1557 builds on prior federal civil rights laws to prohibit sex discrimination in health care,” the document reads. “The final rule requires that women be treated equally with men in the health care they receive and also prohibits the denial of health care or health coverage based on an individual’s sex, including discrimination based on pregnancy, gender identity, and sex stereotyping.”
“The final rule also requires covered health programs and activities to treat individuals consistent with their gender identity,” it notes.
The department provide the examples that “a covered entity may not deny, based on an individual’s identification as a transgender male, treatment for ovarian cancer where the treatment is medically indicated” and if “an issuer or state Medicaid agency denies a claim for coverage for a hysterectomy that a patient’s provider says is medically necessary to treat gender dysphoria,” the case will be investigated.
The site Modern Healthcare also outlines that the rules could require that hospitals provide sex change operations and other treatments related to switching one’s gender identity.
“The rule does not explicitly require insurers to cover gender-transition treatments such as surgery. But insurers could face questions if they deny medically necessary services related to gender transition for a man who identifies as a woman, or a woman who identifies as a man,” it explains.
HHS says that in such cases, “[i]n evaluating whether it is discriminatory to deny or limit a request for coverage for a particular service for an individual seeking the service as part of transition-related care, … OCR will start by inquiring whether and to what extent coverage is available when the same service is not related to gender transition.”
“[T]ransgender people can now enter bathrooms or hospital wards consistent with their gender identity,” Modern Healthcare also notes. There are questions surrounding whether males who identify as females will be placed in shared rooms with female patients.
“While the final rule does not resolve whether discrimination on the basis of an individual’s sexual orientation status alone is a form of sex discrimination under Section 1557, the rule makes clear that OCR will evaluate complaints that allege sex discrimination related to an individual’s sexual orientation to determine if they involve the sorts of stereotyping that can be addressed under Section 1557,” a summary of the rules additionally explains.
“HHS supports prohibiting sexual orientation discrimination as a matter of policy and will continue to monitor legal developments on this issue,” the document outlines.
The Obama administration states that the rules do not include exemptions for religious entities, but also “does not displace existing protections for religious freedom and conscience.”
Hospitals might lose federal funding if they refuse to comply.
“Where noncompliance or threatened noncompliance cannot be corrected by informal means, available enforcement mechanisms include suspension of, termination of, or refusal to grant or continue federal financial assistance; referral to the Department of Justice with a recommendation to bring proceedings to enforce any rights of the United States; and any other means authorized by law,” the rule outlines.
A lawsuit might also be filed against the infringing entity in an effort to force compliance.
Faith-based organizations have expressed concern over being forced to provide sex change operations and other similar treatments, which they believe infringes on the rights of religious hospitals, such as Roman Catholic or Baptist hospital systems.
“This intolerant and unjust rule, in turn, threatens to force health care providers to participate in and perform services that substantially violate their consciences,” David Christensen, vice president of government affairs for the Washington-based Family Research Council, said in a statement.
“This is Orwellian,” Ken Klukowski with the First Liberty Institute also stated. “But beyond that, it is an unconstitutional assault on the First Amendment that the Obama administration is forcing their rejection of biological fact onto people whose faith teaches that ‘man’ and ‘woman’ refer to what they have meant for thousands of years, and that God purposefully created them that way.”
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