In former President Barack Obama’s last year in office, the Health and Human Services Department launched a progressive parting shot that set off a storm of protests from medical professionals everywhere.
Section 1557 of the Affordable Care Act, the administrative regulation popularly known as the transgender mandate, sought to change the longstanding and eminently rational definition of “discrimination on the basis of sex” to include perceived gender identity and abortion. Two federal courts promptly enjoined Section 1557, and President Trump’s Health and Human Services Department has now proposed a reversion to the status quo pre-Obama. This is a great relief. Physicians and nurses will no longer have to fear being accused of discrimination for refusing, for instance, to perform a late-term abortion or amputate the healthy reproductive organ of a patient suffering from gender dysphoria.
Section 1557 was designed as a clever bit of social engineering to stamp progressive attitudes toward abortion and gender ideology onto the face of American healthcare. It purported to do this by way of Title IX, passed by Congress in 1972, which prohibited discrimination on the basis of sex in education. Section 1557 of the Affordable Care Act not only applied that law to healthcare, but also changed its definition of “sex” to include, strangely, termination of pregnancy. I say “strangely” because abortion is not a personal characteristic but a choice.
Further, this regulation tried to change the simple meaning of biological “sex” to the murky world of gender identity, defined as one’s internal sense of being “male, female, neither, or a combination of male and female.”
Medical professionals and healthcare entities protested loudly, and for good reason. Section 1557 opened up nurses, doctors, and hospitals that refused to perform abortions, even third-trimester abortions, to charges of discrimination. It’s intended effect was to sabotage the way our country has, in the interest of pluralism and mutual respect, long upheld the right of professionals to refuse to participate in acts that run contrary to their deeply held beliefs. In fact, many medical professionals have strong ethical reasons to avoid performing abortion apart from religious beliefs. They consider the fetus, as much as the mother, to be their patient. Section 1557’s invidious equation of refusing to perform an abortion to turning away a patient because of their skin color insulted doctors and nurses who consider the fetus a patient to be protected and honored.
Meanwhile, the attempted redefinition of “sex” to mean “gender identity” also posed a series of ethical challenges for doctors trying to “first do no harm.” For starters, classifying patients as biologically male and female is necessary for the proper diagnosis and treatment of disease. To muddy these classifications isn’t good science or medicine. Most importantly, Section 1557 had the effect of making “transition” the only allowed therapy for gender dysphoria. How? By labeling it discrimination to refuse to accommodate the patient’s “internal sense of being male, female, neither, or a combination of male and female.“
If a young woman suffering from gender dysphoria requested a hysterectomy because her healthy uterus offended her internal sense of being male, a hospital or surgeon refusing to operate would be committing an act of discrimination under Obama’s Section 1557. This despite the fact that these healthcare professionals would be refusing based on the same ethical considerations that would lead them to refuse to amputate the healthy arm of a patient whose arm offended him. The fact is that hormonal and surgical interventions remain controversial and experimental for adults who are psychologically uncomfortable with their sex. And they’re even more ethically problematic when applied to children, who are incapable of informed consent by virtue of their age.
Current medical debate remains unsettled on the issue of gender dysphoria, and may never be settled in the direction of Obama’s Section 1557. Recently, the U.S. Court of Appeals for Fifth Circuit denied a prisoner’s request for opposite sex-hormones and cosmetic surgery to treat his gender identity issues, writing: “[I]t is indisputable that the necessity and efficacy of sex reassignment surgery is a matter of significant disagreement within the medical community.”
In rolling back the Section 1557 transgender mandate, the Trump administration brings the regulation into compliance with both court decisions that support religious liberty and the medical judgment of doctors who put the well-being of their patients first. It also brings back the commonsense definition of “discrimination on the basis of sex” — free from attempts to reshape medicine around the progressive shibboleths of abortion and gender ideology.
Dr. Grazie Pozo Christie is a Policy Advisor for The Catholic Association.
