A group of Democratic state attorneys general is suing the Trump administration over its rule that allows doctors to decline performing abortions and transgender surgeries.
The legal action challenges the administration's reversal of an Obama-era regulation that included someone's "internal sense of gender, which may be male, female, neither, or a combination of male and female" in its definition of "sex discrimination" in section 1557 of the Affordable Care Act. The regulation also included "termination of pregnancy" in that same definition.
New York Attorney General Letitia James is leading the effort and is joined by 23 other state attorneys general representing California, Washington state, Michigan, and Pennsylvania, among others. James has claimed that the change in language was tantamount to denying people healthcare, saying it was "especially egregious" to do so during a pandemic.
Last month, the Trump administration revised those regulations, reverting back to the previous standard of sex discrimination, that which discriminates on the basis of biological sex.
The Department of Health and Human Services announced it would enforce the contested section "by returning to the government’s interpretation of sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.”
The agency held that the change “maintains vigorous enforcement of federal civil rights laws on the basis of race, color, national origin, disability, age, and sex, and restores the rule of law by revising certain provisions that go beyond the plain meaning of the law as enacted by Congress."
With the insertion of "gender identity" and "termination of pregnancy" language, the Obama-era rules were understood to mean that should a doctor or medical institution voice ethical or religious objections to performing an abortion or doing a cosmetic gender surgery, they could be referred to the Department of Justice for legal action and potentially risk losing federal funding.
“We are restoring respect to the rule of law,” Roger Severino, the director of the Office for Civil Rights at HHS, said in a June 12 interview with RealClearPolitics.
The Obama-era definition, he added, created “extraordinary confusion in the science and medical fields.”
Since December 2016, federal courts have twice held that the Obama regulations contravened religious freedom protections set forth in established civil rights statutes and other laws protecting religious liberty.
Mary Beth Waddell, senior legislative assistant for the Family Research Council in Washington, D.C., said previously of the Trump administration's reversal that it will “protect health care providers from being forced to participate in and perform services that substantially violate their consciences and help protect their patients.”
Central to disputes where transgender-identified people are concerned is the language used to define key terms and how it applies in law.
Days after the HHS formally returned its policies to its solely biological legal definition, the Supreme Court handed down a ruling in Bostock v. Clayton County which held that sexual orientation and "transgender status" are included in the legal definition of sex discrimination regarding Title VII, the federal civil rights statute pertaining to employment.