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New Years’ Eve injunction blocks the federal redefinition of the word ‘sex’

The mandate blurs the term “sex” from a biological definition to a gender identity definition. (AP Photo/Seth Wenig, File)

January 02, 2017

On New Year’s Eve, a federal judge in Texas issued an injunction against what has become known as the “transgender mandate.” The injunction prevented enforcement of a new federal regulation issued this spring whose consequences have been hotly debated, which would have gone into effect on Jan. 1.

The Becket Fund, which litigated on behalf of religious healthcare provider networks, has argued ever since the rule was promulgated that it will require many doctors to perform procedures related to gender reassignment, even on children, and even where it violates their medical judgment, let alone their religious beliefs about sex changes.

The state plaintiffs in the case, who had sued alongside the providers, argued (among other things) that their state laws requiring doctors to act on their best medical judgment would be overturned by this new federal rule. They also argued that the rule would require them to provide state employees with insurance plans that cover sex reassignment procedures.

The Obama administration, on the other side (and this has been parroted in most of the media coverage), maintained that this rule merely forbade discrimination against transgendered individuals in healthcare, and that’s all, full stop. If this actually were a fair statement of the case, then who could possibly be against that? After all, you don’t have to buy into the normalization of gender dysphoria to find it completely immoral to deny treatment to a transgendered person who walks into a hospital with an injury or disease.

But as often happens in these cases, the popular representation is not always the same as the case presented in court. The rule, as the Department of Health and Human Services acknowledged in its own 66-page response to the complaint, would have subjected denials of gender reassignment treatment or coverage to administrative and court challenges, in which those making the decisions would have had to justify their medical decisions in such cases as non-discriminatory.

Judge Reed O’Connor issued the preliminary injunction based on the belief that plaintiffs are likely to win the case at trial, and that a failure to enjoin the new rule would cause them irreparable harm.

The 46-page ruling goes over a lot of complicated issues related to the administrative rule-making process, but I believe the most important issue is represented in this passage from the Becket Fund’s original complaint (citations omitted):

HHS attempts to impose these dramatic new requirements by redefining a single word used in the Affordable Care Act: “sex.” For decades, across multiple federal statutes, Congress has consistently used the term “sex” to refer to an individual’s status as male or female, as determined by a person’s biological sex at birth. But in the Regulation, HHS redefines “sex” to include “an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.”

Thus, with a single stroke of the pen, HHS has created a massive new liability for thousands of healthcare professionals unless they cast aside their medical judgment and perform controversial and even harmful medical transition procedures. And HHS has done this despite the fact that Congress has repeatedly rejected similar attempts to redefine “sex” through legislation, and federal courts have repeatedly rejected attempts to accomplish the same goal through litigation.

Essentially, this looks like a regulatory sleight of hand that could have been meaningful well beyond the context of this one rule, but which even here might have had severe consequences for a lot of medical providers. Congress, through multiple federal laws over the last 45 years, has defined “sex” based on biological science. By using Title IX’s definition for sex discrimination and applying it to the concept of “gender identity,” HHS tried to slip a more subjective “modern gender” definition of “sex” into the law without Congress.

As the judge put it:

Prior to the passage of the ACA in 2010 and for more than forty years after the passage of Title IX in 1972, no federal court or agency had concluded sex should be defined to include gender identity. Accordingly, HHS’s expanded definition of sex discrimination exceeds the grounds incorporated by Section 1557 [of Obamacare].

He reasoned it unlikely that the creation of “gender identity” in federal law as a synonym for “sex” could survive a full court challenge, especially given that Congress has used quite recently used both terms separately.