Another Challenge To The ACA And Transgender Equality

  Image by DRB Images, LLC/Getty Images

Image by DRB Images, LLC/Getty Images

By all appearances, Texas officials just don’t like transgender people. 

In May, the Obama administration adopted a new regulation that prohibits hospitals and other healthcare providers that receive federal funds from discriminating on the basis of sex. On Tuesday, unhappy that the administration refused to create a religious exemption to that rule, the State of Texas, along with religious medical groups represented by the Becket Fund, filed yet another multi-state lawsuit to challenge legal protections against sex discrimination that protect the rights of transgender people.  

This lawsuit should not be confused with Texas’s other lawsuit, which challenges federal guidelines on bathroom access for transgender students. 

When the U.S. Department of Health and Human Services proposed the rule to implement the nondiscrimination provisions (Section 1557) of the Affordable Care Act, religious groups asked for a blanket exemption from the ban on sex discrimination. Americans United opposed a religious exemption because it would prevent women and LGBT people from obtaining equal access to necessary medical care. 

The Obama administration ultimately rejected the request for a broad religious exemption and, further, made clear that the ban on sex discrimination prohibits discrimination on the basis of “gender identity,” “sex stereotyping,” and “termination of pregnancy, or recovery therefrom.” Among other things, the regulation ensures that transgender people have access to medically necessary treatments and that the care is covered by their health insurance. 

Texas—along with Wisconsin, Nebraska, Kentucky, and Kansas—is now arguing that healthcare professionals should be able to ignore these nondiscrimination provisions if it violates their religious beliefs. In particular, they claim that the regulation violates the Religious Freedom Restoration Act, as well as various other constitutional and statutory provisions. 

The repeated refrain of this new lawsuit is that the nondiscrimination requirements will “override the medical judgment of healthcare professionals” by dictating which medical procedures they must perform. The complaint alleges that the regulation will “force[ ] doctors to perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individual’s sex—including the sex of children.”  

These claims are nonsense: the regulation does not dictate what procedures doctors must perform, nor does it require them to do anything that is not in the best interest of the patient. As HHS explained when it issued the regulation, doctors and hospitals are not required to provide “any particular treatment, as long as the basis for exclusion is evidence-based and nondiscriminatory.” The challenged rule, in other words, prohibits medical professionals from making treatment decisions based on discriminatory reasons rather than sound medical science. 

This lawsuit, which is yet another attempt to misuse RFRA, underscores the importance of passing the Do No Harm Act. RFRA was meant to protect religious freedom, not to discriminate. When religion is used to deny healthcare, it places the patient’s health and well-being in jeopardy. The Do No Harm Act would restore RFRA’s original intent, ensuring that it can’t be used to harm others in this way. Ask your Representative in Congress to co-sponsor the bill.