Trump Administration Proposes Revision of Obama-Era Definition of Sex Discrimination in Health Care

US President Barack Obama signs an executive order during an event in the East Room of the White House April 8, 2014 in Washington, DC. Brendan Smialowski/AFP/Getty
Brendan Smialowski/AFP/Getty

The U.S. Department of Health and Human Services (HHS) announced Friday a proposed rule that would change the Obama administration’s definition of sex discrimination under the Affordable Care Act (Obamacare) by eliminating “gender identity” and “termination of pregnancy.”

In a news release, HHS observed that, with the passage of Obamacare in 2010, Congress directed the department to apply existing civil rights laws and regulations to health care, including Title IX, which pertains to discrimination “on the basis of sex.”

In 2016, however, the Obama administration redefined sex discrimination to include termination of pregnancy and gender identity, the latter of which it defined as one’s internal sense of being ‘male, female, neither, or a combination of male and female.’”

In a lawsuit brought by several states and religious groups, a federal court found the Obama-era rule’s gender identity and termination of pregnancy provisions to be contrary to civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act.

With the preliminary injunction still in effect, the Trump administration cannot – and has not – enforced the Obama-era rule’s provisions that the court said is likely unlawful. HHS’s new proposed rule would revise the Obama administration’s sex discrimination provisions to be aligned with the courts’ plain understanding of them.

“This rule is codifying the current status quo – which is we can’t enforce it,” HHS Office for Civil Rights (OCR) Director Roger Severino told Breitbart News during an interview Friday. “And we are agreeing with the court that it is, in fact, not supported by law.”

“That overly broad redefinition would go away if the rule is finalized,” he added.

Kristan Hawkins, president of Students for Life of America, said the proposed elimination of “termination of pregnancy” would indicate that abortion will no longer be advanced in healthcare law to avoid accusations of “discrimination” on the basis of sex.

“Pregnancy is not a disease cured by abortion,” she said, adding:

A bias in favor of abortion should not be our policy, as pregnant and parenting women deserve support and assistance, rather than pressure to end a child’s life. The prejudice against pregnant women and in favor of abortion should be stripped from the law in favor of life-affirming care.

Similarly, Father Frank Pavone, national director of Priests for Life, noted the proposed rule “restores conscience rights to health-care providers who cannot take part in abortion because of their deeply held religious beliefs.”

“It also restores some common sense to the government’s understanding of the term ‘sex’ as a basic biological distinction between human beings,” he added. “This is a common-sense adjustment to a rule that the Obama administration came up with as a way to circumvent the Religious Freedom Restoration Act.”

In the HHS news release announcing the proposed rule, Severino summarized:

When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform. The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives. The proposed rule would accomplish both goals.

HHS states the proposed rule keeps in place continued vigorous enforcement of all civil rights in healthcare “based on HHS’s longstanding underlying civil rights regulations.”

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