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HHS Interpretation of ‘Discrimination Based on Sex’ Shows Urgency of Defeating Equality Act

Wesley J. Smith
arroba Email

Today, HHS announced it was reversing the Trump rule that defined “sex” as biological in order to forbid “discrimination” in health care based on sexual identity and orientation. From the HHS notice:

Today, the Department of Health and Human Services announced that the Office for Civil Rights will interpret and enforce Section 1557 and Title IX’s prohibitions on discrimination based on sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity.  Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in covered health programs or activities.  The update was made in light of the U.S. Supreme Court’s decision in Bostock v. Clayton County and subsequent court decisions.

“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That’s why today HHS announced it will act on related reports of discrimination,” said HHS Secretary Xavier Becerra.  “Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone – including LGBTQ people – should be able to access health care, free from discrimination or interference, period.”

Who are they kidding? This interpretation would have been made regardless of Bostock.

But the change raises an important question. Refusing to, say, set the broken leg of a gay or transgendered person would clearly be unacceptable discrimination that I can’t imagine any religion validating.

But what about interventions that could violate a medical professional’s sincere religious beliefs about the nature of sex and morality, such as participating in transgender “transition” interventions or participating in IVF and gestational surrogacy to allow a gay couple to become parents? Those procedures unquestionably cut against long-standing religious dogmas of some faiths.

For now, that might not be a significant problem. The announcement promises that the Religious Freedom Restoration Act and court rulings such as Religious Sisters of Mercy v. Azar will apply to the interpretation:

In enforcing Section 1557 as stated above, OCR will comply with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., and all other legal requirements. Additionally, OCR will comply with all applicable court orders that have been issued in litigation involving the Section 1557 regulations…

That’s good. It allows comity.

But note: The Equality Act now pending in the Senate — and which President Biden has promised to sign — would gut the RFRA as a protection in issues involving sex, sexual orientation, sexual identity, abortion, etc.

That is why this legislation — and Medicare for All, which would similarly corrode medical conscience — must never become law. If they do, refusing to participate in transition procedures and other controversial medical interventions involving “sex” would be officially deemed “discrimination” and punished accordingly. That would force doctors, nurses, and other medical professionals to choose between acting consistently with their religious beliefs on these controversial matters and risking crushing lawsuits, authoritarian government punishments, perhaps even being allowed to continue in their chosen professions.

Make no mistake, that is the ultimate goal of the Biden administration and politically progressive special-interest groups. Dissent and heterodox thinking on these cultural sexual issues will not be tolerated. The left intends to eviscerate the RFRA to obliterate the existing right to medical conscience and force full societal compliance with their cultural agendas. Republicans in the Senate must hold the line.