Joint letter to the U.S. Department of Health and Human Services
Proposed Regulation: 80 Fed. Reg. 54172 (Sept. 8, 2015).
Re: Nondiscrimination in Health Programs and Activities RIN 0945-AA02
6 November, 2015
Submitted Electronically
U.S. Department of Health and Human Services
Office for Civil Rights
Hubert H. Humphrey Building
Room 509F
200 Independence Avenue, SW
Washington, DC 20201
Re: Nondiscrimination in Health Programs and
Activities
RIN 0945-AA02
Dear Sir or Madam:
On behalf of the United States Conference of Catholic Bishops, National
Association of Evangelicals, Christian Medical Association, Institutional
Religious Freedom Alliance, Christian Legal Society, World Vision (US),
Ethics and Religious Liberty Commission of the Southern Baptist Convention,
Liberty Institute, Family Research Council, and the National Catholic
Bioethics Center, we respectfully submit the following comments on the
proposed OCR regulations on nondiscrimination in health programs and
activities. 80 Fed. Reg. 54172 (Sept. 8, 2015).
The proposed regulations are intended to implement Section 1557 of the
Affordable Care Act. Section 1557 provides, among other things, that an
individual shall not, on the ground prohibited under Title IX of the
Education Amendments of 1972, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under, any health program
or activity, any part of which is receiving federal financial assistance. 42
U.S.C. § 18116. Subject to certain exceptions, Section 901 of Title IX
prohibits discrimination on the basis of sex. 20 U.S.C. § 1681. Religious
organizations are exempt from this prohibition if its application would be
inconsistent with their religious tenets. 20 U.S.C. § 1681(a)(3).
We agree that the prevention of sex discrimination in health programs and
activities is a laudable statutory goal. Everyone should have access to
health care and health coverage. The proposed regulations are problematic,
however, because they construe sex discrimination to include—
- discrimination based on "termination of pregnancy" (insofar as this
might be read to require the provision of, or coverage or referral for,
abortion).
- discrimination based on "gender identity."
- the categorical or automatic exclusion by an insurer of "services
related to gender transition," and the denial or limitation of coverage
of such services in some circumstances.
- discrimination based on "sex stereotypes," defined to protect
"individuals who identify as neither, both, or as a combination of male
and female genders."
- discrimination based on the sex of a person with whom an individual
has a "relationship or association" (insofar as this might be read to
treat same-sex relationships as a classification protected at law).
This expansive definition of sex discrimination lacks support in the
language and legislative history of Title IX, and is likely to have a
detrimental effect on the privacy interests of patients, to interfere in
some instances with the effective delivery of health care services, and to
infringe upon the religious and moral convictions of health care providers,
insurers, and other stakeholders. Based on these flaws, the regulations
violate federal law, including the Administrative Procedure Act.
Finally, like Title IX, which Section 1557 mirrors, the regulations ought
to have a religious exemption of proper scope.
We believe that the changes urged in this letter are critical and that
without them, the regulations are unlikely to survive scrutiny in the
courts.
More detailed comments follow.
Conclusion
When the regulations were first proposed, they were "hailed as
groundbreaking."27 That is a strike against
them. OCR’s task is not to break new ground, but to carry out an Act of
Congress. As discussed here, the proposed regulations fail to do that.
We respectfully submit that in the final regulations, OCR: (a) must make
clear that Section 1557 does not require the provision of, referral or
coverage for, abortion; (b) must not define sex discrimination to include
gender identity discrimination; (c) must not require coverage of gender
transition services; (d) must revise its overly broad interpretation of sex
stereotypes; (e) must clarify that Section 1557 does not forbid
discrimination on the basis of sexual orientation; and (f) must include a
religious exemption that is at least as broad as the one in Title IX (but
without restriction to an educational setting). The exemption, at a minimum,
should state that the prohibition on sex discrimination shall not apply to a
religious organization if such application would not be consistent with the
religious tenets of such organization.
Without these changes, the regulations, for the reasons stated in this
letter, are unlikely to survive scrutiny in the courts.
Thank you in advance for your careful consideration of these comments.
Respectfully submitted
Notes:
27. Lena H. Sun & Lenny Bernstein, "U.S.
Moves to Protect Women, Transgender People in Health Care," The
Washington Post (Sept. 3, 2015)