SCOTUS Decision Resonates: HHS Cannot Define Sex as Biological, Protect Doctors of Faith

Jae S. Lee/Dallas Morning News via AP

A federal judge appointed by former President Bill Clinton has blocked a federal rule that preserves sexual distinctions in health care between men and women, marking another consequence of the Supreme Court’s revolutionary decision in June to insert “gender identity” into federal sexual discrimination law.

The Health and Human Services rule issued in June reversed an Obama-era rule that sought to blur healthcare distinctions between people who accept their biological sex and “transgender people” who want to live as member of the opposite sex.

“Under the old Obama rule, medical professionals could have been forced to facilitate gender reassignment surgeries and abortions — even if they believed this was a violation of their conscience or believed it harmful to the patient,” Mary Beth Waddell, senior legislative assistant for the Family Research Council, said after the HHS rule was announced.

That decision came just ahead of the SCOTUS ruling, written for the majority by Neil Gorsuch, a President Donald Trump-nominated justice.

The Associated Press reported on Brooklyn-based Judge Frederic Block’s decision, which prohibits the Trump administration from enforcing the regulation until it is litigated:

The HHS rule sought to overturn Obama-era sex discrimination protections for transgender people in health care. Similar to the underlying issues in the job discrimination case before the Supreme Court, the health care rule rests on the idea that sex is determined by biology. The Obama-era version relied on a broader understanding shaped by a person’s inner sense of being male, female, neither or a combination.

Block indicated he thought the Trump administration’s so-called transgender rule is invalid in light of the Supreme Court ruling in June on a case involving similar issues in the context of job discrimination.

“When the Supreme Court announces a major decision, it seems a sensible thing to pause and reflect on the decision’s impact,” Block wrote in his order. “Since HHS has been unwilling to take that path voluntarily, the court now imposes it.”

Roger Severino, head of the HHS Office for Civil Rights, said in the June AP report that transgender people continue to be protected by other statutes that bar discrimination in health care on account of race, color, national origin, age, disability, and other factors.

“Everyone deserves to be treated with respect and according to the law,” Severino said. “Our dedication to our civil rights laws is as strong as ever.”

The lawsuit, Tanya Asapainsa-Johnson Walker and Cecilia Gentill v. Azar M. Azar II, was brought by the Human Rights campaign on behalf of the two men who want to live as women.

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