Biden admin.’s Obamacare rule draws religious freedom concerns

Faith-based organizations and religious freedom advocates are critical of a new Biden administration rule that re-interprets the definition of “sex” found in Section 1557 of the Affordable Care Act to include “sexual orientation” and “gender identity.” 

On Friday, the U.S. Department of Health and Human Services announced plans to implement a rule that interprets the definition of “sex” in Section 1557 of the Affordable Care Act, barring discrimination to “pregnancy, sexual orientation, gender identity, and sex characteristics.”

The HHS Office for Civil Rights and the Centers for Medicare and Medicaid Services elaborated on the implications of the new rule in a series of statements published Friday.

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“Today’s rule is a giant step forward for this country toward a more equitable and inclusive health care system, and means that Americans across the country now have a clear way to act on their rights against discrimination when they go to the doctor, talk with their health plan, or engage with health programs run by HHS,” said HHS Secretary Xavier Becerra. “I am very proud that our Office for Civil Rights is standing up against discrimination, no matter who you are, who you love, your faith or where you live.”

OCR Director Melanie Fontes Rainer maintained that the new rule “exemplifies the Biden-Harris Administration’s ongoing commitment to health equity and patient rights.”

“Traveling across the country, I have heard too many stories of people facing discrimination in their health care. The robust protections of 1557 are needed now more than ever,” Rainer said.

“Whether it’s standing up for LGBTQI+ Americans nationwide, making sure that care is more accessible for people with disabilities or immigrant communities, or protecting patients when using [artificial intelligence] in health care, OCR protects Americans’ rights,” she added.

Religious liberty advocates condemned the new rule and warned of its negative implications on faith-based healthcare providers.

In a statement Monday, Chris Faddis of the faith-based healthcare network Solidarity Healthshare slammed the development as “an attack on people of faith” and “blatant discrimination against religious Americans who object to participating in or paying for products and procedures that violate their beliefs.” 

“By expanding the definition of ‘sex’ to include ‘gender identity,’ physicians and medical staff can no longer opt out of performing morally objectionable surgeries, like transgender surgeries, without the risk of losing critical federal funding,” he continued. “This shameless targeting of faith-based healthcare systems and providers is unacceptable, but sadly not unexpected given this administration’s track record of hostility towards people of faith.”

In an X thread, Luke Goodrich of the religious liberty law firm Becket stated that the Biden Admin “just decreed that doctors nationwide must perform gender transitions or suffer federal penalties.”

He described the new rule as a “scheme” that is “bad for patients, bad for religious liberty, and illegal.”

Goodrich shared a screenshot of the new rule declaring that “a covered entity” under the Affordable Care Act must not “deny or limit health services sought for purpose of gender transition or other gender-affirming care that the covered entity would provide to an individual for other purposes if the denial or limitation is based on an individual’s sex assigned at birth, gender identity, or gender otherwise recorded.” 

Goodrich asserted that under the new rule, “doctors who offer hormones for menopause, or mastectomies for breast cancer, must do the same for girls who want to look like boys.”

“A similar rule from the Obama Admin was nixed by federal courts [two times],” he said, adding, “Prior courts ruled it would violate religious freedom to force doctors to perform transitions that would violate their consciences and could harm patients.”

The new rule is scheduled to become law 60 days after its publication in the Federal Register. While it was filed on Friday, the official rule is not scheduled to be published until May 6. This means that the rule is expected to take effect in early summer. Goodrich predicted “more litigation,” forecasting “more losses for the federal government.” 

The new rule has drawn the support of LGBT advocates. Human Rights Campaign President Kelley Robinson called the rule a “crucial step forward.”

“Countless Americans can now find solace in knowing that they cannot be turned away from health care they need just because of who they are or who they love,” Robinson said in a statement. 

“This important milestone would not be possible without years of advocacy from HRC and our partners who refuse to accept discrimination of any kind for LGBTQ+ people and other marginalized Americans.”

The rule’s implementation comes nearly two years after it was first proposed. As explained in the unpublished version of the rule posted Friday, the notice of proposed rulemaking published in the Federal Register in July 2022 drew 85,280 public comments.