HHS proposes new rules on gender affirmation, pregnancy healthcare

The Department of Health and Human Services is proposing a new rule that it said will strengthen non-discrimmination in health care. The rule prohibits an entity from denying or limiting health services sought for the purpose of gender-affirming care and “pregnancy termination”. 

“Standing with communities in need is critical, particularly given increased attacks on women, trans youth, and health care providers. Health care should be a right not dependent on looks, location, love, language, or the type of care someone needs,” HHS Secretary Xavier Becerra said in a statement. 

HHS provided some examples of what is and isn’t discrimination regarding people seeking gender-affirming care:

• “For example, a family practice covered by the rule would not be required to provide transition-related surgery where surgical care is not within its normal area of practice.” 
• “By contrast, a gynecological surgeon may be in violation of the rule if they accept a referral for a hysterectomy but later refuse to perform the surgery upon learning the patient is a transgender man.”

Acting Director for the HHS Office of Civil Rights Melanie Fontes Rainer stated, “Now more than ever, we must stand up for those around the country whose voices often go unheard, to let them know we stand with them and are working to ensure they can access health care free from discrimination.”

Critics contend the rule could cause physical and psychological harm to both patients and doctors. 

“Doctors should never be forced to perform a controversial and often medically dangerous procedure that goes against their best judgment, their conscience, or their religious beliefs,” said Alliance Defending Freedom senior counsel Matt Bowman.

HHS also stated that discrimination on the basis of sex includes discrimination on the basis of pregnancy or related conditions, including “pregnancy termination.” However, neither the rule nor the explanation provide a clear cut definition of what constitutes “pregnancy termination.” 

Nonetheless, ADF expressed concern that doctors and hospitals could be forced to perform abortions under the proposal. In addition, the organization said it could force employers to cover abortions in their health insurance plans, which they argued is in violation of Title IX.  

HHS’s proposal pertains to section 1557 of the Affordable Care Act, which prohibits discrimmination based on race, age, sex and other traits. The rule applies to patients, providers, and insurance companies in federally funded health programs. The public has 60 days to comment on the rule before it becomes official.