47 Lawmakers Demand Answers to HHS Rule Requiring Doctors to Perform ‘Gender Transition’ Procedures

By Lauretta Brown | October 14, 2016 | 4:10 PM EDT

In this May 29, 2014 photo, Denee Mallon, right, holds a banner before taking part in the Trans March to Morningside Park in Albuquerque, N.M. A U.S. Department of Health and Services review board ruled Friday, May 30, in favor of Mallon, a 74-year-old Army veteran, whose request to have Medicare pay for her genital reconstruction was denied two years ago. (AP Photo/Craig Fritz)

(CNSNews.com) – Rep. Joe Pitts (R-Calif.) announced Thursday that he and 47 of his colleagues have sent a letter to Health and Human Services (HHS) Secretary Sylvia Burwell expressing “a number of significant concerns” with an HHS regulation requiring “doctors to perform gender transition procedures or treatments on patients including children, even if the doctor believes the procedures could be harmful.”

The new
rule, Section 1557, went into effect in July and prohibits health programs that receive federal funding from HHS from discriminating against an individual on the basis of gender identity, gender expression and transgender status.

“This rule for the first time in history requires doctors to perform gender transition procedures or treatments on patients including children, even if the doctor believes the procedures could be harmful,” the congressmen wrote.

“Doctors who follow their oath to act in the best interest of the patients by refusing to perform these procedures face massive financial penalties and even job loss,” they added.

“The very guidance cited by HHS to justify this rule includes studies showing that up to ninety-four percent of children who wrestle with gender dysphoria will outgrow the dysphoria naturally and become comfortable in the bodies they were born with,” the members added.

“Children are some of the most vulnerable in our population,” the letter emphasized, “and this rule 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.”

The letter concluded with a request for answers to a series of questions from HHS, asking for specifics about health care providers’ conscience rights and exemptions under the new regulation as it applies to specific procedures.

It asked whether a doctor who prescribes puberty blocking medication to children for a medical condition known as “precocious puberty” would be required under the new rule to prescribe that same medication to children for gender dysphoria “even if the doctor’s best medical judgment was that such treatments are always experimental and inappropriate to provide to children to facilitate a gender transition.”

Similarly, the letter asked about a doctor who provides hysterectomies to treat uterine cancer but would have ethical and religious objections to providing that same procedure to facilitate a gender transition.

The letter also pointed out that the military’s TRICARE health plan contains a guidance memo on gender dysphoria that specifies “in no circumstance will a provider be required to deliver care that he or she feels unprepared to provide either by lack of clinical skill or due to ethical, moral, or religious beliefs.”

They asked HHS to “explain in concrete detail why the Department’s final rule does not provide similar protection for the clinical limitations, or ethical, moral, or religious belief of covered entities.”

regulation itself noted that “some religious organizations that submitted comments strongly supported a religious exemption, arguing that faith-based health care providers and employers would be substantially burdened if required to provide or refer for, or purchase insurance covering, particular services such as gender transition services.”

The regulation’s response to these comments is that “certain protections already exist in Federal law with respect to religious beliefs, particularly with regard to the provision of certain health related services. For example, we noted that the proposed rule would not displace the protections afforded by provider conscience laws, RFRA, provisions in the ACA related to abortion services, or regulations issued under the ACA related to preventive health services. Nothing in this final rule displaces those protections.”

“We believe that the government has a compelling interest in ensuring that individuals have nondiscriminatory access to health care and health coverage and, under RFRA, would assess whether a particular application of Section 1557 substantially burdened a covered entity’s exercise of religion and, if so, whether there were less restrictive alternatives available,” it concluded.

Religious health providers including the Franciscan Alliance hospital network and the Christian Medical & Dental Associations, represented by the Becket Fund for Religious Liberty, filed a lawsuit against the mandate in August. Texas, Kansas, Kentucky, Nebraska, and Wisconsin joined the lawsuit.

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