FIRST ON THE DAILY SIGNAL—If a federal court upholds LGBT activists’ claims against a Florida health agency’s Medicaid rule on transgender interventions, that decision would have devastating consequences for civil rights law, health care providers, and public health, experts warn.
LGBT activist groups led by Lambda Legal and representing four young people who identify as transgender seek to twist Section 1557 of the Affordable Care Act—better known as Obamacare—“to impose a new standard of care for Medicaid using experimental treatments on minors,” former leaders at the Department of Health and Human Services under President Donald Trump write in an amicus brief exclusively provided to The Daily Signal.
These arguments “are so fundamentally inconsistent with health care civil rights law as to turn it on its head,” their legal brief claims.
Roger Severino, director of the Office for Civil Rights at HHS from 2017 to 2021 and currently vice president of domestic policy at The Heritage Foundation, led the brief that was filed Friday. (The Daily Signal is Heritage’s multimedia news organization.)
Rachel N. Morrison, who worked at the Equal Employment Opportunity Commission from 2019 to 2021; Maya Noronha, contact person for Section 1557 regulations at HHS’ Office for Civil Rights under Severino; Louis Brown Jr., who served in that office from 2017 to 2019; Marie Connelly Meszaros, who worked there from 2018 to 2021; and Christine Pratt, senior adviser for the conscience and religious freedom division at the HHS Office for Civil Rights from 2020 to 2021, joined Severino in the brief.
Severino and the others who filed the amicus brief are supporting Florida’s Agency for Health Care Administration, which finalized a rule in August 2022 declaring that Medicaid would not cover “puberty blockers,” cross-sex hormones, “sex-reassignment” surgeries, or other procedures that alter primary or secondary sex characteristics.
LGBT and health activist groups led by Lambda Legal, representing four young people who say they identify as transgender, filed a lawsuit in September aiming to block Florida’s Medicaid rule.
As part of their lawsuit, the LGBT groups asked the court to temporarily block the rule while it considers the full case. In denying that temporary injunction, the court ruled in October that the case centers on whether Florida’s determination that transgender interventions are “experimental” is “reasonable.”
Florida’s Agency for Health Care Administration filed a motion for summary judgment Friday, urging the court to close the case and make a final judgment supporting the rule. Severino filed his brief at the same time.
Severino’s brief urges the court to reject Lambda Legal’s claim that Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of sex in health care, also prohibits “discrimination on the basis of nonconformity with sex stereotypes, transgender status, gender, gender identity, gender transition, and sex characteristics.”
Lambda Legal argues that Florida’s health care agency, by “categorically excluding ‘services for the treatment of gender dysphoria,’ including ‘[s]ex reassignment surgeries’ and any ‘procedures that alter primary or secondary sexual characteristics,’ … has discriminated against plaintiffs on the basis of sex in violation of Section 1557″ (emphasis original).
“These arguments are premised entirely on the contention that plaintiffs, as minors, must receive experimental surgeries and drugs with permanent physical and psychological ramifications, as a matter of medical necessity,” Severino’s brief explains.
“Plaintiffs are wrong on all counts,” it adds.
“If Congress wanted to make Medicaid cover sterilizing cross-sex hormones and surgeries in transgender-identifying minors, it could have, but it did not,” the brief notes. In lieu of clear law on the subject, Lambda Legal twists Obamacare’s Section 1557, it claims.
In barring discrimination on the basis of sex, Section 1557 incorporated Title IX of the Education Amendments of 1972, which clearly refers to only two sexes and does not involve the more nebulous term gender identity. Although the Supreme Court in Bostock v. Clayton County (2020) held that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation and gender identity, that ruling did not extend to Title IX or to Obamacare’s Section 1557.
Studies have shown that most children who express a gender identity at odds with their biological sex will grow to identify with their biological sex, in the absence of medical or social interventions.
Dr. Stephen B. Levine, a psychiatrist and early proponent of transgender medical interventions, also wrote a brief supporting Florida’s Medicaid rule. Levine argued that social “affirmation” for a transgender identity “is a powerful psychotherapeutic intervention that radically changes outcomes” and makes it far less likely that young children will “desist” from a transgender identity.
Levine explicitly calls gender transition and affirmation “experimental therapies that have not been shown to improve mental or physical health outcomes by young adulthood,” and warns that these therapies “do not decrease, and may increase, the risk of suicide.”
Severino’s brief argues that “because there is no objective diagnostic test, not even in theory, that can predict which particular child will, despite appropriate psychological treatments and therapy, continue to feel distress over their natural bodies after puberty, medical necessity of such permanent, harmful, and sterilizing interventions for minor children cannot be established as a matter of law.”
If the court were to reinterpret Obamacare’s Section 1557 in the way Lambda Legal requests, it would “radically remake American health care by replacing science-based medicine with ideology-driven mandates,” the brief warns. “To accept plaintiffs’ premises contradicts long-standing scientific understandings of human biology and thereby endangers public health.”
While Lambda Legal may celebrate the young plaintiffs’ ability to obtain experimental medical interventions should the court rule in their favor, Severino’s brief warns that such a ruling would harm health care providers and the medical industry more broadly.
Such a ruling “would eventually drive out hospitals and medical providers that cannot in good conscience perform sterilizing surgeries on children because they too receive substantial federal funding, especially to serve poor and rural communities,” the brief argues.
The fear of lawsuits under Section 1557 also would encourage more doctors to inflict “devastating permanent physical and psychological harm” on children, it argues.
The ruling also would “obliterate sex-based distinctions in health care,” the brief warns. “Functionally, a provider (or insurer) would have to treat a patient or a customer according to their self-identified sex in all respects and at all times, which includes the counter-scientific recognition and ‘affirmance’ that men can get pregnant.”
By ruling that the Florida Agency for Health Care Administration discriminated against the transgender plaintiffs, Severino and the others argue, the court would “impose a new purported standard of care based on subjective self-identification into medicine and impose a requirement for coverage of and participation in gender transition interventions under cover of nondiscrimination.”
Psychiatrists, endocrinologists, neurologists, and other doctors testified in support of the Florida Medicaid rule at the center of the litigation, warning that transgender medical interventions such as “puberty blockers,” cross-sex hormones, and surgeries are experimental and not supported by solid evidence.
“Patients suffering from gender dysphoria or related issues have a right to be protected from experimental, potentially harmful treatments lacking reliable, valid, peer-reviewed, published, long-term scientific evidence of safety and effectiveness,” Dr. Paul Hruz, an endocrinology researcher and clinician at Washington University School of Medicine, wrote in a sworn affidavit. (Endocrinologists treat the endocrine system, which uses hormones to control bodily systems, including reproduction.)
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