Five states and organizations representing over 17,000 physicians are suing the Obama administration over new Obamacare regulations requiring doctors to ignore their medical expertise and religious convictions and perform gender transition services and procedures.
Kansas, Kentucky, Nebraska, Texas and Wisconsin, along with doctors and hospitals affiliated with the Christian Medical and Dental Associations, Franciscan Alliance and Specialty Physicians of Illinois, filed a federal lawsuit on Tuesday against the Department of Health and Human Services over regulations requiring doctors to "perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individual's sex — including the sex of children."
"Under the new regulation, a doctor must perform these procedures even when they are contrary to the doctor's medical judgment and could result in significant, long-term medical harm," the lawsuit states. "Thus, the regulation represents a radical invasion of the federal bureaucracy into a doctor's medical judgment."
The regulation was originally issued in May and went into effect in July. According to Lori Windham, senior counsel with the Becket Fund for Religious Liberty, the scope of the regulation's impact could affect every doctor in the country and every state-run hospital.
"Doctors and hospitals could be subject to litigation for using their best medical judgement and there is the potential loss of federal funding, that includes Medicaid and Medicare funds, so that is a very serious issue for the states," Windham told The Christian Post on Wednesday. "There may be other penalties as well. HHS sort of left the door open in the regulation for other sorts of enforcement actions. … They referred to other laws and said that the penalties available under those laws are also available under this regulation."
Along with the possible loss of federal funding, the new rule would force states to incur "very serious costs" that are imposed by the regulation.
Nebraska Attorney General Doug Peterson issued a statement voicing his concern about the rule.
"Specifically, when Congress passed the Affordable Care Act, it used the term 'sex' as a biological category," Peterson said. "The federal government is now attempting to unlawfully redefine the regulation so that 'sex' includes one's gender identity."
According to a 143-page report issued Monday by psychiatry experts at Johns Hopkins University in Maryland, research on the persistence of gender dysphoria into adulthood is sparse but studies that have been conducted find that the condition of gender dysphoria in the strong majority of transgender children does not persist into adulthood.
"In natal [biological] males, persistence [of gender dysphoria] has ranged from 2.2 to 30 percent," the report explains. "In natal females, persistence has ranged from 12 to 50 percent. Scientific data on persistence of gender dysphoria remains sparse due to the very low prevalence of the disorder in the general population, but the wide range of findings in the literature suggests that there is still much that we do not know about why gender dysphoria persists or desists in children."
In fact, HHS is not even requiring Medicare and Medicaid to cover these same transition procedures. Prior to enacting the regulation, HHS researchers found that "clinical evidence for gender reassignment surgery was inconclusive for the Medicare population at large."
"The government bureaucrats are ignoring the scientific conclusions of their own agency," Windham added. "It is deeply troubling that the government could tell doctors what they are supposed to do when the government won't impose those same rules on itself."
Windham said that the regulation is an attempt for political appointees at HHS to tell doctors "what the answers should be."
"These are serious questions that should be left to families and their doctors," Windham asserted, noting that there are also religious freedom rights at play in the lawsuit.
"The mandate violates the law in many different ways. One of the major problems with it is it interferes with the best judgement of doctors, who have entered this profession because their faith inspires them," Windham stressed. "Their faith inspires them to serve those in need, to heal, to help vulnerable children struggling with difficult issues."
The lawsuit was filed in the U.S. District Court for the Northern District of Texas after the same court sided with Texas and other states to temporarily block the Obama administration's public school transgender guidance earlier this week.
Although opponents of the regulation are concerned that it could force doctors to ignore medical judgements, the regulation states that coverage of services would not be required if "the basis for exclusion is evidence based and nondiscriminatory."
Windham, however, points out the problems with the regulation's wording.
"The government refused to limit the regulation to discriminatory actions. It can require transition procedures even when a doctor believes they are not medically appropriate," she told CP. "As the final rule explained: '[Some] commenters, concerned that the rule may be too broadly interpreted, ... recommended that the rule specify that [gender transition] services are to be provided only when medically necessary or medically appropriate. ... [But] we decline to limit application of the rule by specifying that coverage … must be provided only when the services are medically necessary or medically appropriate."