Re: CMS drops Obamacare rules on transgender care that worried religious freedom advocates

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May 7, 2022, 2:10:04 AMMay 7
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Provisions relating to transgender procedures were excluded from
the Biden administration's rulemaking on nondiscrimination
protections in Obamacare plans, a last-minute change welcomed by
religious liberty advocates.

The Centers for Medicare and Medicaid Services released a final
rule Thursday updating Obamacare's regulations that drops a
January proposal to change the civil rights provision known as
Section 1557 to include "gender identity" and "sexual
orientation" as categories explicitly protected from
discrimination. Section 1557 already prohibits discrimination
based on race, color, national origin, sex, age, and disability
in health programs and activities that receive federal funding.

Nor did Thursday's final rule include a separate proposal
related to transgender services that had worried religious
liberty advocates. That second proposal was meant to stop
insurers from limiting the coverage of essential health
benefits, or the list of health services insurers are required
to cover under Obamacare, based on gender identity in treating
gender dysphoria when clinical evidence demonstrates that such
coverage is medically necessary for transgender people.

For instance, if an insurer were to cover hormone therapy to
treat nontransition-related conditions, the plan must also cover
the therapy for the treatment of gender dysphoria — that is,
emotional distress due to a disconnect between gender identity
and biological sex. Not doing so would be presumptively
discriminatory, per the initial proposed rule.

The agency’s move to put off consideration of the proposals
offered a temporary reprieve for religious freedom advocates,
who characterized the second rule as a mandate on insurers to
cover the cost of gender transition care such as hormone
therapy, reassignment surgery, and puberty blockers despite
whatever religious or moral objections they might have.

“CMS’s decision to drop its plans to mandate insurance coverage
of irreversible and sterilizing medical and surgical gender
transition procedures, including for children, is huge,” said
Rachel Morrison, a policy analyst at the Ethics and Public
Policy Center, a conservative think tank. "For an agency to
completely abandon a proposal at the final stage, especially one
that aligns so closely with the administration’s priorities, is
practically unheard of."

This is not the end of the road for the rules, though. The
nondiscrimination proposals related to sexual orientation and
gender identity will be considered “at a later time,” the rule
indicated, “to ensure that they are consistent with the policies
and requirements that will be included in the section 1557

The rules, if finalized, were expected to prompt a legal
conflict between the government healthcare agency and religious
freedom advocates. The initial proposal did not detail what
kinds of exemptions insurers and employers paying for insurance
for their workers would be allowed. However, conservatives said
that, if finalized, the rule would have likely run afoul of the
Religious Freedom Restoration Act, a 1993 law that established
legal safeguards for religious people and entities with respect
to federal rules.

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