In the aftermath of the Obama administration interpreting the Affordable Care Act to ensure transgender people have access to transition-related health care, a group of 45 House Republicans led by Rep. Joe Pitts (R-Pa.) is raising “significant concerns” about the development.
In a letter dated Oct. 6 and made public on Wednesday, Pitts and other Republicans assert — incorrectly — the rule made final by the Department of Health & Human Services requires doctors to perform gender reassignment surgery even if they believe the procedure is not in the patient’s best interest.
“Doctors who follow their oath to act in the best interest of the patients by refusing to perform these procedures massive financial penalties and even job loss,” the letter says. “Never before has the federal government forced doctors to choose between caring for their patients based on their best medical judgment, and complying with federal law.”
In July, HHS made final a rule interpreting Section 1557 of the Affordable Care Act, which bars discrimination in health care on the basis of gender, to prohibit discrimination on the basis of gender identity and gender non-conformity. The rule ensures transgender people have access to all areas of transition-related care, including gender reassignment surgery.
Contrary to the fear mongering in the letter, neither the law nor the rule supersedes providers’ professional, clinical judgment about the appropriate treatment for each patient, as well as when to provide referrals.
Stoking fears about children who would be subject to unnecessary procedures under the rule, lawmakers cite a statistic that 94 percent of children who suffer from dysphoria outgrow the condition and the mandate “strips doctors of their ability to counsel and advise the best course of medical care in their professional judgment if they believe gender transition procedures to be harmful.”
(Past studies didn’t differentiate between non-transgender children who have non-stereotypical interests and children who consistently express a transgender identity. More recent research shows that the latter group is distinct and children are healthier when they can express their gender identity, typically without medical treatments.)
Claiming Medicare and Medicaid don’t require providers to cover the procedure, lawmakers take issue with mandating “virtually every private physician, health care provider and health insurance plan in the country to do otherwise.” (The rule also applies to Medicare and Medicaid. Before the rule was instituted, Medicare lifted its ban on coverage for transition-related care, including surgery, but didn’t require contractors to provide it. Medicaid provided these treatments in a number of states.)
The letter also objects to the absence of a religious exemption in the rule; says the estimated number of more than 900,000 health care providers required to comply “is breathtaking”; and expresses concern about whether the rule requires health care professionals to perform abortions despite their religious objections.
“HHS received numerous requests to provide clarification as to whether prohibitions on sex discrimination could be construed to require insurance plans to cover abortion or require health care professionals to provide one contrary to their religious or moral beliefs,” the lawmakers wrote. “Despite these requests, the final rule offers no such assurances that these individuals and organizations will not be penalized for providing quality care or insurance coverage that excludes abortions.”
Although lawmakers don’t outright call for a reversal of the rule, they seek clarification from HHS on 12 stated points by Nov. 14. Among them is whether a doctor is required to prescribe children puberty-blocking medications even if that’s against their medical judgment; why no religious exemption was included in the rule; what kind of speech, including intended use of a gender pronoun different from a person’s gender identity “could rise to the level of creating a hostile environment;” and why Medicare and private entities are subject to different standards for transition-related care.
Among the 45 lawmakers who signed the letter in addition to Pitts are Republicans who have a history of hostility toward LGBT rights, including Reps. Steve King (R-Iowa), Vicky Hartzler (R-Mo.), Tim Huelskamp (R-Kansas) and Martha Blackburn (R-Tenn.).
An HHS spokesperson declined to comment on the letter on the basis the department has a practice of keeping correspondence with lawmakers confidential unless lawmakers seek to make public that information. A spokesperson for Pitts says the lawmaker has yet to receive a response to the letter.
The letter comes on the heels of litigation filed by Texas Attorney General Ken Paxton and the Becket Fund for Religious Liberty seeking to overturn the regulation on the basis it violates religious freedom.
Mara Keisling, executive director of the National Center for Transgender Equality, said the letter is “nothing more than a misleading rehash of the malicious suit filed by Texas.”
“They mischaracterize various studies and the government policies they are attacking, and they ignore decades of medical research about transgender people,” Keisling said. “Hopefully, HHS will respond with the facts and the members of Congress will understand they are wrong. But they seem to be making political rather than policy or medical arguments. Shame on them.”