Transgenders Get Health Care Rights

June 1, 2016

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The Obama administration’s violations continue. On May 18, 2016, the U.S. Department of Health and Human Services (HHS) issued a final nondiscrimination (transgender) rule for health care, saying patients must receive treatment and access facilities and programs according to their gender choice, not their biological sex.
The administration based the rule on laws referenced in the nondiscrimination section of the Affordable Care Act:
§  Title VI of the Civil Rights Act of 1964
§  Title IX of the Education Amendments of 1972 and U.S. Code 20, Section 1681 against sex discrimination in education (last amended in 1986)
§  Rehabilitation Act of 1973
§  Age Discrimination Act of 1975
These laws were written or last amended 30 to 50 years ago, when its unlikely Congress contemplated “gender,” “gender identity” or “gender expression.”
Last November, we chastised HHS in a detailed public comment saying the agency had no legal basis to assert these laws include health care rights for people who claim an identity separate from their biology. The department’s response:
Other commenters suggested that OCR is exceeding its legal authority by addressing covered entities’ provision of coverage to transgender individuals because discrimination based on gender identity should not be recognized as a form of sex discrimination. …
[W]e disagree with commenters who asserted that sex-based discrimination does not include discrimination based on gender identity. As discussed previously, OCR’s definition of discrimination ‘‘on the basis of sex’’ is consistent with the well-accepted interpretations of other Federal agencies and courts.
Tellingly, the agency doesn’t claim a law enacted by Congress; they base this rule on “interpretations of other Federal agencies and courts.” The rule’s key requirement goes into effect on July 18, 2016:
Consider the costs. Training alone is expected to cost nearly $372 million the first year. And although expensive sex-change operations and ongoing treatment are not automatically mandated, grievance procedures, a compliance coordinator and reporting are required. Enforcement options include loss of federal funds, referral to the U.S. Department of Justice and a private right of action with damages. Entities found in violation will “be required to take remedial action as required by the Director to overcome the effects of that discrimination.” (p. 31393)
When Congress created federal agencies and gave them rulemaking authority – power to write rules with the full force and effect of law – it violated its constitutional obligation to be the sole source of lawmaking. Article I of the U.S. Constitution, the Non-Delegation Doctrine, says, “All legislative powers herein granted shall be vested in a Congress of the United States…”
Who will end this injustice? Who will protect citizens from the laws, costs and violations of conscience imposed by unelected bureaucrats?
Working with you to protect your freedom,
Twila Brase, RN, PHN
President and Co-founder
P.S. Donations to our work always and gratefully accepted…