The Trump Administration issued a new guidance that reverses the Obama-era directive requiring schools to allow children suffering from gender dysphoria to use the restroom of their choice, regardless of their sex. The Trump Administration should likewise relieve doctors and hospitals from a similar transgender initiative: Section 1557 of the Affordable Care Act.
The education directive, which caused consternation across the nation, was made through a “Dear Colleague” letter using Title IX (which prohibits discrimination on the basis of sex) as its legal basis. As Obama’s Department of Justice clarified in May: “Schools receiving federal money … must treat a student’s gender identity as the student’s sex for the purposes of enforcing Title IX.” Section 1557 also re-interprets Title IX, this time in regards to healthcare. Effectively that means that denying surgery or hormonal therapy designed to change a person’s secondary sexual characteristics is discriminatory. Section 1557 went even further in re-imagining Title IX, calling a refusal to perform abortions discrimination against women.
This is quite a jump. Title IX was passed in 1972 to make sure that federal funding of education benefited both boys and girls. The boys’ basketball game might be the big money maker at the state college, but the girls’ team should also be funded. By changing (at least by regulation and directive) the simple meaning of “sex” in Title IX, the Obama Administration was trying to force the country to make the move from the biologic understanding of sex (one based on DNA and common to all cultures and throughout history until recently) to a novel ideology that proposes that one’s sex is simply a fluid internal disposition.
The potential fall-out from using gender ideology to make bathroom, housing, and sports decisions is not lost on regular Americans. When a 17-year old male who identifies as the opposite sex uses the girls’ locker-room, a woman who thinks of herself as a man is loosed into a men’s jail, and the women on a college high-jump team are replaced by higher-jumping men taking great doses of estrogen—the potential for chaos and abuse is endless.
Healthcare is no exception. Section 1557 opens up any doctor or hospital to potential lawsuits or job loss if they refuse to administer the hormones or perform the surgeries involved in gender transitions. For example, in New Jersey, a Catholic hospital is being sued for refusing to allow the surgical removal of a perfectly healthy uterus. The plaintiff cites an “increased risk of cancer” as a medical necessity, but regular pap smears and routine ultrasounds are offered to women with increased risk of endometrial cancer—not hysterectomies. Hysterectomies are major surgeries with inherent risks. In addition, these surgeries and anything else related to transition is prohibited in Catholic hospitals, which are governed by ethical directives informed by deeply held religious beliefs. One hospital system suing for relief from Section 1557 put it this way: “Like the Catholic Church it serves, Franciscan believes that a person’s sex is ascertained biologically, and not by one’s beliefs, desires, or feelings.” This, of course, is how everyone from the dawn of time has regarded sex, right up until very recently.
A district court judge in Texas has already laid a preliminary injunction on the enforcement of Section 1557. The court agreed with the plaintiffs (eight states, a Catholic Hospital System, and a Christian medical and dental society) that the ACA’s novel reinterpretation of Title IX contradicts existing law and has potential for great harm. The intimate relationship between doctor and patient, the primacy of specific medical judgment over fads and ideology, and the religious freedom of providers and employers are all in danger in the wake of Section 1557.
If demanding that society conform itself to an individual’s biologically-defying sense of self makes for chaos in schools, the potential for harm in medicine is even greater. Just for starters, transgender designations may conceal biologic sex differences that are of great importance when assessing medical risk factors and effective treatments. Even more serious, Section 1557 specifically states that doctors must perform amputating surgeries even if not “strictly identified as medically necessary or appropriate.”
This kind of intrusion into a physician’s medical judgment is simply unheard of. The radical hormones and surgical interventions are offered as “treatment” for men and women suffering from gender dysphoria. Yet, studies have shown that adults who have undergone these treatments continue to have poor mental health outcomes. One study found that sex-reassigned individuals are about 19 times more likely to die by suicide than the general population. It is obvious that “transitioning” is simply not a sure cure for what ails these poor people. The federal government has no business mandating that all physicians fall in with gender ideology to the extent of amputating perfectly healthy organs.
Discrimination is a terrible thing, and the laws of our country, such as Title IX, have worked to curtail it. But it is also terrible to twist the notion of discrimination in order to promote gender ideology. It is not discriminatory to give schoolgirls bathroom privacy, and it is not discriminatory when a surgeon acting in accord with her best medical judgment refuses to amputate a perfectly healthy organ. Let’s hope the Trump Administration, while untangling the gender-ideology knots left behind by Mr. Obama at the Department of Education, addresses the even more damaging section 1557 of the Affordable Care Act.
Dr. Grazie Pozo Christie specializes in radiology in the Miami area and serves on the advisory board for The Catholic Association.