WoLF Submits Public Comments to U.S. Department of Health and Human Services
On October 3, 2022, WoLF submitted our public comments to the US Department of Health and Human Services (HHS) for the department’s proposed Nondiscrimination in Health Programs and Activities regulations. We are extremely grateful to one of our Advisory Council members, who drafted these comments for us. This talented woman has chosen to remain anonymous, but we want the world to know how much we appreciate her commitment to defending the rights of women and girls, as well as her commitment to ensuring that healthcare providers will not be forced to comply with gender ideology.
Last year, we identified the risks posed by Dr. Rachel Levine, the Assistant Secretary for HHS, who was nominated by President Biden. Levine is a trans-identified male with a history of explicitly arguing in favor of giving puberty blockers and cross-sex hormones to minors. In his role at HHS, Levine helps oversee the FDA, NIH, and Administration for Children and Families (ACF), and he also has the authority to promote and fund research priorities, waive restrictions on certain drugs, and shape insurance policies across the nation. As the former Pennsylvania Physician General, he worked to force insurance providers and Medicaid to cover “gender confirmation treatment.” It is therefore very unsurprising to us, with leadership like Dr. Levine, that HHS proposed new regulations that promote gender ideology and conflated “gender identity” with sex.
If they are accepted, the proposed HHS regulations will redefine discrimination on the basis of sex, expanding it so that “gender identity” will be considered a form of sex-based discrimination. If HHS is allowed to include “gender identity” as a form of sex-based discrimination, healthcare providers in a wide variety of government programs will be forced to provide “gender affirming” medical interventions to patients. Doctors, nurses, and other healthcare providers will be accused of discrimination if they refuse to provide these types of services. Healthcare providers involved with Medicare, Medicaid, the Children’s Health Insurance Program, the Program of All-Inclusive Care for the Elderly, group and individual markets, and health insurance exchanges will all be affected by this drastic change.
In its comments to HHS, WoLF explained why we strongly oppose two proposed changes in the regulations:
The proposed redefinition of “sex” to include gender identity
The proposed expansion of “federal financial assistance” to include reimbursement of Medicare providers under Part B
In addition to submitting our public comments, we empowered 609 people to submit their comments including 583 concerned US citizens representing 48 states and Washington, DC using WoLF’s Targeted Action. An additional 26 people from around the world submitted comments using our template as well.
Proposed Redefinition of Sex
In its comments, WoLF stated that the Biden administration continues to try to change major tenets of federal civil rights law, even though this grave responsibility belongs to the U.S. Congress instead of individual government departments like the Department of Justice and the Department of Education. We argued that the Biden administration has an “unyielding obsession with embedding gender ideology into every facet of American life, no matter the cost to women and girls” and that this obsession is carried out “in an effort to circumvent the legislative process and its attendant democratic debate on an ideology that only a small minority of Americans support.”
We also explained that these proposed regulations make a serious error because they expand the narrow scope of the Bostock holding beyond recognition. In Bostock, the Supreme Court held that Title VII of the Civil Rights Act’s prohibition on sex-based discrimination in the workplace extends to people who are homosexual, as well as to people who identify as transgender. We argued that the Bostock holding is incredibly flawed because the Supreme Court conflated homosexuality and transgenderism, even though these are two completely different concepts. Furthermore, Bostock’s conflation of “gender identity” and sex has resulted in erasing biological sex as a protected civil rights category.
“We must also note that the Bostock holding is flawed and unworkable even on its narrow terms. Throughout its opinion, the Court conflates homosexuality and transgenderism, even though homosexuality (i.e., same-sex attraction) is by definition based on the existence of two sexes. Moreover, redefining sex to include gender identity has the effect of erasing biological sex as a protected ground in the context of civil rights protection.”
Redefining “Federal Financial Assistance”
WoLF’s public comments also addressed how the HHS’ proposed redefinition of “federal financial assistance” will allow the Biden administration to coerce Medicare providers into compliance with gender ideology, through the threat of litigation based on “gender identity discrimination.”
Currently, for purposes of civil rights complaints, reimbursements and other payments to providers pursuant to Medicare Part B are not considered federal financial assistance. Since the advent of civil rights law in the 1960s and the creation of Medicare in 1965, Part B payments have never been considered “federal financial assistance.” Approximately 45% of the 938,980 active physicians in the United States are aged 55 or older; this means almost half of practicing physicians will reach retirement age in the next ten years.
If the proposed HHS regulations are enacted, healthcare providers who participate in Medicare programs will be subject to claims of discrimination based on “gender identity” if they believe in science and the reality of sex. In other words, if a Medicare healthcare provider does not believe that a patient needs hormones, drugs, surgeries, or other unnecessary, ego-driven medical interventions, that provider may be targeted with a lawsuit, with the claim that he or she is “discriminating” against a transgender-identitifed patient.
Many physicians and other providers will undoubtedly not want to face additional litigation risks, and it is reasonable to assume that many of these providers will choose to opt out of Medicare rather than risk litigation about “gender identity discrimination.” At a time when 11,000 people age into Medicare each day, our government must do everything in its power to attract more physicians to participate in the program in order to avoid a loss of patients’ access to care. However, it is highly likely that the HHS’ proposed regulations will drive out providers who fear litigation. In other words, the administration will drive out healthcare providers in the name of gender ideology.
“Burdening physicians with additional litigation risk and federal enforcement authority for refusing to deny the science and reality of sex will drive many more physicians into early retirement – if not complete retirement, then at least from Medicare…. Here too, the Administration’s myopic fixation takes priority, no matter the potential harm to Medicare beneficiaries.”
WOLF Will Not Stop Fighting for Women’s Sex-Based Rights
Just a few weeks ago, WoLF submitted public comments to the Department of Education, expressing our significant concerns with their proposed regulations, which would also expand sex-based discrimination to include “gender identity.” Unfortunately, it is no surprise to us that we had to immediately switch over from the realm of education into the realm of healthcare. Gender ideology has become embedded in every aspect of US government, and it is evident that lawmakers at the highest levels of our government have been unduly influenced by people who disavow science and biology in favor of men’s rights.
Over the past decade, we have watched in horror as certain political administrations have eagerly tried to erase women and women’s rights, choosing to prioritize men and “trans rights.” Our public comments for the Department of Education and the Department of Health and Human Services cite some different legal and policy issues, but the underlying message in both documents is the same. We completely oppose the government’s attempts to replace women’s rights with “trans rights,” and we will continue to demand that our government recognize the realities of science and biology rather than cater to the whims of gender ideology and its nonsensical, sexist, misogynistic concepts.
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