Republican Sen. Roger Marshall seeks to block Biden ban on anti-trans discrimination in health care

Republican U.S. Sen. Roger Marshall of Kansas has introduced a bill to block the Biden administration’s new rule on enforcement of antidiscrimination protections in health care.

The rule on enforcement of Section 1557 of the Affordable Care Act, set to go into effect July 5, would restore protections revoked under Donald Trump, including the classification of gender identity-based discrimination as sex discrimination. It comes from the Department of Health and Human Services’ Office of Civil Rights and applies to health care providers, insurers, and federal programs such as Medicare and Medicaid.

Marshall claims the rule will “force faith-based organizations to provide transgender surgeries and possibly even abortion procedures,” as a press release from his office puts it. But the rule will not interfere with existing religious and conscience exemptions. Congress has 60 days to overturn it.

“Time is of the essence; we will fight like hell to overturn this radical ruling by Joe Biden’s HHS,” Marshall, a physician, said in the released. “This is a dangerous abuse of power. Our founding fathers would be rolling over in their graves if they knew that the President of the United States was trying to fund sex-change surgeries at the taxpayer’s expense. Gender is not fluid, and sex is not negotiable, and while all voice of reason seems to be lost at 1600 Pennsylvania Avenue, we will continue to sound the alarm. The HHS should be worried about Americans safety, health and wellbeing and stop doing the radical Left’s bidding by promoting child mutilation surgeries. I am happy to fight this fight — nothing is more important than protecting our children.”

The rule says providers that receive federal funds must offer services without discrimination — for instance, puberty blockers or hormone therapy for gender transition, if they offer these treatments for other purposes. However, it also says, “Providers do not have an affirmative obligation to offer any health care, including gender-affirming care, that they do not think is clinically appropriate or if religious freedom and conscience protections apply.”

On abortion, it notes, “Nothing in this rule requires the provision of any particular medical care, including abortion. To the extent [insurance] plans offer coverage for termination of pregnancies and related services, they must do so on a nondiscriminatory basis.”

Given that many states have banned gender-affirming care for minors or restricted abortion, the rule says that “section 1557’s nondiscrimination requirements … generally preempt conflicting State law,” but that in enforcement, the Office of Civil Rights will consider a variety of factors, such as “whether any covered entity that is taking discriminatory actions under the rule is doing so because it believes in good faith it is obligated to do so by State or local law.”

So Marshall’s stated fears appear largely unfounded, and his bill is unlikely to become law. Democrats have a majority in the Senate, Republicans have a very slim one in the House of Representatives, and President Biden would not sign it in any case.

But Marshall and his cosponsors are taking the opportunity to spew anti-transgender rhetoric. His bill is cosponsored in the Senate by Republicans Marsha Blackburn of Tennessee, Marco Rubio of Florida, Mike Braun of Indiana, Mike Lee of Utah, Kevin Cramer of North Dakota, and Katie Britt of Alabama and led in the House by GOPers Doug LaMalfa of California and Chip Roy of Texas.

“The Biden administration is weaponizing HHS to attack the religious rights and freedoms of faith-based organizations,” Blackburn said in the release. “HHS’ ‘Nondiscrimination in Health Program and Activities’ rule would force faith-based organizations to perform gender transition, and possibly abortion, procedures. We need to overrule this rule and stand up for the religious rights and freedoms of the American people.”

“This baseless and unscientific reinterpretation of the definition of ‘sex’ will no doubt be used by the Biden administration to force people and organizations to pay for products and procedures that violate their beliefs,” LaMalfa added. “Under this rule change, medical staff are required to perform surgeries, including transgender surgeries, even if they have moral objections, or their faith prevents from doing those procedures. This is a direct attack on religious freedom and conscience protections to push a radical gender ideology.”

The bill is backed by several far-right organizations. They include Heritage Action, the Ethics and Religious Liberty Commission, the Alliance Defending Freedom, the Family Research Council, Concerned Women for America, and the Family Policy Alliance.