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Protection of Conscience Project

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Legal Commentary

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

Joint letter to HHS

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.

I.    Abortion
II.    Gender Identity
III.    Gender Transition
IV.    Sex Stereotypes
V.    Sexual Orientation
VI.    Adverse Impact on Patients
VII.    Relgious Convictions and the Title IX Exemption
VIII.    Administrative Procedure Act

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



27.  Lena H. Sun & Lenny Bernstein, "U.S. Moves to Protect Women, Transgender People in Health Care," The Washington Post (Sept. 3, 2015)


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