There was an interesting ripple in the Obamacare story over the weekend, coming as most of the country was more tuned in to the closing out of the old year than any political stories. A federal judge in Texas issued an injunction which prevents certain provisions of the Affordable Care Act from taking effect. Buzzfeed brought the story to light on New Years Eve, describing how US District Court Judge Reed O’Connor halted enforcement of Section 1557 of the act, which “forbids discriminating on the basis of ‘gender identity’ and ‘termination of pregnancy.’”
Explaining the lawsuit, O’Connor wrote, “Plaintiffs claim the Rule’s interpretation of sex discrimination pressures doctors to deliver healthcare in a manner that violates their religious freedom and thwarts their independent medical judgment and will require burdensome changes to their health insurance plans on January 1, 2017.”
The states and nonprofits in the healthcare lawsuit allege that the regulation violates the Administrative Procedure Act (APA) — which sets the rules for federal government rule-making — and the Religious Freedom Restoration Act (RFRA).
At the Volokh Conspiracy, Jonathan Adler breaks this down.
The regulation in question implements Section 1557 of the ACA, which prohibits health-care entities that receive federal funding from discriminating on the basis of sex. According to the regulation, this prohibition extends to discrimination based upon “gender identity,” “sex stereotyping” and “termination of pregnancy.” Among other things, it requires that covered entities treat individuals in accordance with their self-proclaimed gender identity, which is defined as a person’s “internal sense of gender, which may be male, female, neither, or a combination of male and female.”
The originators of the suit are referencing religious freedom as part of the initial complaint, and while there’s certainly an element of that in play, the appeal of this decision should probably focus more on the science underlying it all. This is yet another example of the Obama administration seeking to bend the definition of “sex” (when it comes to questions of discrimination) to encompass a Social Justice Warrior concept of “gender” as something unique and wholly separate from biology. The mandate would punish health care providers who refused to administer transgender procedures – even to children – in cases where it might conflict not only with their religious beliefs, but run afoul of their professional opinions as to the beneficial nature of such treatments.
These are procedures which the government doesn’t even force their own military doctors to perform, nor must such procedures be covered under Medicare or Medicaid (even for adults) under current rules. Forcing doctors to perform them on children heightens the level of alarm over this mandate. And that’s what the courts really need to answer as far as I’m concerned. There is absolutely zero compelling evidence being offered that anyone has a physical malady which requires correction based on the fact that they “feel like” a different gender than the one defined by basic science.
This goes back to a question I raised a couple of years ago. If the government is willing to not only recognize but mandate the acceptance of a person’s desired gender rather than their actual sex, why should there be any barriers at all. What about people suffering from Cotard’s Syndrome? They fervently believe that they are undead… literally zombies walking the Earth. Can Uncle Sam declare them dead just to honor that belief and force the medical community to treat them as corpses? While that may sound like an extreme comparison, it’s actually the same thing. There is precisely as much scientific evidence that a man identifying as a “transgender woman” is actually female as there is that a Cotard’s sufferer is actually a zombie.
This injunction is only a temporary measure and the appeals process will drag out for a while. But like so many other of these “transgender” questions, it’s one which the courts need to address once and for all. This should be done on a scientific basis, providing guidance for legislatures at all levels going forward. And liberals who like to declare themselves the “party of science” on other subjects should be made to answer these questions once and for all.