A number of health clinics, hospitals and a university have joined the state of North Dakota in a lawsuit against a new federal regulation that demands that doctors – all of the estimated 900,000 in America – be ready, willing and able to perform gender-transition procedures on children.
That’s even if the physician believes such treatment could harm the child.
“No doctor should be forced to perform a procedure that he or she believes will harm a child,” said Lori Windham, a senior counsel for the group. “Decisions on a child’s medical treatment should be between families and their doctors, not dictated by politicians and government bureaucrats.”
The lawsuit is on behalf of the Religious Sisters of Mercy, Sacred Heart Mercy Health Care Center in Jackson, Minnesota; Sacred Heart Mercy Health Care Center in Alma, Mississippi; SMP Health System; the University of Mary; and North Dakota.
Defendants are HHS Secretary Sylvia Burwell and the federal agency.
The complaint alleges the demand is invalid under the Administrative Procedures Act, the Religious Freedom Restoration Act and the U.S. Constitution’s First, Fifth and 14th Amendments. It seeks a permanent injunction against the regulation as well as damages and costs.
Becket argues the government ”does not require Medicare and Medicaid to cover these same procedures, because Health & Human Services’ (HHS) own medical experts found the risks were often too high and benefits too unclear.”
“Yet any private doctor who made the same decision about the risks would be in violation of the new mandate and face potential lawsuits or job loss.”
The group cites research showing that up to 94 percent of children with “gender dysphoria” will “grow out of their dysphoria naturally and will not need surgery or lifelong hormone regiments.”
There also are risks from heart disease and diabetes, and from breast, ovarian and prostate cancers.
The lawsuit states: “This regulation will cost healthcare providers and taxpayers nearly $1 billion and affect up to 900,000 doctors – virtually every doctor in the U.S., many of whom have chosen the medical profession because they are inspired by their faith to serve those in need. But this regulation violates doctors’ ability to exercise both their best medical judgment and their religiously inspired desire to care for society’s most vulnerable.”
Windham called the HHS regulation “an unparalleled government overreach.”
“This law not only forces doctors to violate the Hippocratic oath, but also removes their professional right to be the final decision-makers on the best medical care for their patients,” she said.
HHS recently mandated that doctors must perform gender transition procedures on any child referred by a mental health professional, even if the doctor believes the treatment or hormone therapy could harm the child. Doctors who follow their Hippocratic Oath to act in the best interest of their patient instead of this new mandate can face severe consequences, including losing their job.
The Transgender Mandate also requires virtually all private insurance companies and many employers to cover gender transition procedures or face stiff penalties and legal action. There are two major insurance plans exempted from HHS’s mandate, however—the plans run by HHS: Medicare and Medicaid.
Why are the government’s plans exempt? Most children referred for gender dysphoria grow up not to be transgender and the government’s own panel of medical experts concluded that these gender transition procedures can be harmful.
Medicare and Medicaid don’t even have to pay for these procedures because HHS’s medical experts believe gender transition procedures can be harmful. But HHS’s political appointees have pushed through a rule that will ruin doctors whose best medical judgment is that they cannot perform the very same procedures because it will harm the child under their care.
To be clear, this is not a question of access to care but of forcing a political ideology on doctors against their medical judgment. This mandate would be unique in requiring doctors to violate their Hippocratic Oath.
A decision to undergo a gender transition procedure is a difficult and deeply personal one, and it is especially complicated in the case of children. It is a private healthcare decision that should be between a family and their doctor, not decided by politicians and government bureaucrats.
 HHS has estimated the rule will “likely cover almost all licensed physicians because they accept Federal financial assistance” in more than one program and in more than one setting. Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31375, 31445 (May 18, 2016).
 The Mandate says that a hospital “will be held accountable for discrimination under Section 1557” where “a doctor is an employee of a hospital.” 81 Fed. Reg. 31384. In addition, if a doctor “works as an attending physician at a hospital,” then the doctor’s practice, as well as “the hospital may be responsible for discrimination by the doctor’s practice that occurs at the hospital.” Id.
Thus, if a doctor who is simply following his or her best medical judgment is found to violate the Transgender Mandate, that doctor may not be able to get a job at any hospital because the hospital will be face serious liability and financial penalties under the new rule for employing that doctor. See also 45 C.F.R. § 92.301 (“The enforcement mechanisms available for and provided under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, or the Age Discrimination Act of 1975 shall apply for purposes of Section 1557” including “compensatory damages”).
 Other observers have estimated that the rule will apply “to over 133,000 (virtually all) hospitals, nursing homes, home health agencies, and similar provider facilities, about 445,000 clinical laboratories, 1,200 community health centers, 171 health-related schools, state Medicaid and CHIP programs, state public health agencies, federally facilitated and state-based marketplaces, at least 180 health insurers that market policies through the FFM and state-based marketplaces, and up to 900,000 physicians.” Timothy Jost, Implementing Health Reform: HHS Proposes Rule Implementing Anti-Discrimination ACA Provisions (Contraceptive Coverage Litigation Update), Sept. 4, 2015, http://healthaffairs.org/blog/2015/09/04/implementing-health-reform-hhs-proposes-rule-implementing-anti-discrimination-aca-provisions/.
 “Based on a thorough review of the clinical evidence available at this time,” HHS wrote, “there is not enough evidence to determine whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria.” HHS also noted that “There were conflicting (inconsistent) study results—of the best designed studies, some reported benefits while others reported harms.” Centers for Medicare & Medicaid Services, Proposed Decision Memo for Gender Dysphoria and Gender Reassignment Surgery (June 2, 2016), at http://www.becketfund.org/wp-content/uploads/2016/08/proposed-memo.pdf (emphasis added).
 “A provider specializing in gynecological services that previously declined to provide a medically necessary hysterectomy for a transgender man would have to revise its policy to provide the procedure for transgender individuals in the same manner it provides the procedure for other individuals.” 81 Fed. Reg. at 31455. Despite significant debate in the medical community about the medical prudence of some of these procedures, the rule states that a view of “transition-related treatment” as “experimental” is “now recognized as outdated and not based on current standards of care.” Id. at 31435.
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