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Biden Admin Abuses Its Power Again, Redefines ‘Sex’ in Section 1557

In its continued attempt to promote its views on gender ideology, the Biden administration is putting Americans in danger.
Julie Marie Blake
Published
Revised
A doctor writes notes on a document

The Biden administration is no stranger to overstepping its authority. Just since 2021, it has misused federal law to try to force doctors to perform abortions, colluded with big banks to monitor groups with disfavored views, and coerced social media companies to censor ideas the administration dislikes.

In the latest example of federal overreach, the Biden administration has redefined “sex” to include gender identity in both Title IX and Section 1557 of the Affordable Care Act (ACA). This not only puts Americans in danger but also violates a number of constitutional rights.

What is Section 1557 of the Affordable Care Act?

In 2010, President Barack Obama signed the ACA into law.

Included in the ACA is a nondiscrimination provision known as Section 1557. It applies to all healthcare providers who receive federal financial assistance, including private practices and hospitals that accept funds from Medicare, Medicaid, and/or the Children’s Health Insurance Program (CHIP). This encompasses virtually every healthcare entity in the country.

Section 1557 of the ACA prohibits healthcare providers from discriminating on the basis of race, national origin, sex, age, or disability. Although the provision has been in effect since 2010, the Biden administration issued a new rule 14 years later that unilaterally changes its meaning.

Biden administration flouts the Constitution

In May 2024, the U.S. Department of Health and Human Services (HHS) issued a new regulation redefining “sex” in Section 1557 of the ACA to include “gender identity.” This was a grave abuse of power by the Biden administration that will have devastating consequences if it is allowed to stand.

First, HHS does not have the authority to unilaterally change the meaning of federal law. The ACA never mentions “gender identity,” and it repeatedly references sex using biologically binary language. This makes it clear that the ACA never meant for the word “sex” to mean gender identity in Section 1557.

But the Biden administration’s mandate has unilaterally changed the meaning of Section 1557, which the executive branch has no power to do. Only Congress can pass and amend laws.

Second, HHS’s reckless and illegal changes to Section 1557 would harm both children and adults. The redefinition of sex to include gender identity would force health-care providers to act against their sound medical judgment and perform harmful, potentially sterilizing procedures on children and adults who want to appear as the opposite sex, even if the procedures violate state law.

The Biden administration claims that doctors who heal must also hurt. Under the rule change, doctors who use medication to treat premature puberty would be forced to prescribe puberty blockers for gender dysphoria. And if doctors perform mastectomies to treat breast cancer, they would be forced to perform mastectomies on healthy women who want to appear like men.

In addition, the regulation violates the First Amendment by forcing doctors to express messages they do not agree with. It forces healthcare providers to lie to patients by referring to them using pronouns that do not match their sex, saying that a male is a female and vice versa, and saying that men can get pregnant.

States and medical practices that decline to adhere to the Biden administration’s radical redefinition of sex face significant financial penalties and loss of federal funding, and doctors face steep penalties and could lose their ability to care for Medicaid, Medicare, and CHIP patients, taking them away from the low-income patients who need them most.

We’re seeking to protect the truth about biology

Doctors take an oath to do no harm, but the Biden administration’s changes to Section 1557 of the ACA would compel doctors to violate this oath. The mandate is both wrong and unlawful, and Alliance Defending Freedom has filed multiple lawsuits challenging HHS’s reckless actions.

McComb Children’s Clinic v. Becerra

McComb Children’s Clinic has served the city of McComb, Mississippi, for over 50 years. Its patients reside in a medically underserved region of the state, and about 75 percent rely on Medicaid or CHIP to pay for their care.

If the children’s clinic cannot participate in these programs, it would no longer be financially viable. But according to the Biden administration, if the clinic wants to continue participating in the programs, it must change its policies to reject biological reality, reeducate its employees, refer for puberty blockers for children who want to appear as a gender different from their sex, and more.

Caregivers shouldn’t be forced to harm their patients for any reason, especially as a condition of receiving federal financial assistance. ADF attorneys filed a lawsuit on behalf of McComb Children’s Clinic challenging the HHS mandate, and the case is before a federal district court.

State of Florida v. U.S. Department of Health and Human Services

Florida passed a law protecting children from harmful, irreversible drugs and surgeries aimed at making them appear as a gender different from their biological sex. But the Biden administration is claiming its mandate redefining sex in Section 1557 overrides state law and forces doctors to perform these dangerous procedures.

In addition, the rule forces insurance plans to pay for the procedures. States like Florida that seek to protect their citizens from life-altering drugs and surgeries face significant financial penalties and loss of federal funding.

ADF attorneys represent the Catholic Medical Association (CMA), the nation’s largest association of Catholic healthcare professionals. The mandate forces CMA members to perform dangerous procedures in violation of sound medical judgment, and it prevents them from explaining the many harms—including sterilization—that these procedures can cause.

We’ve joined the state of Florida in filing a lawsuit against the Biden administration for its unlawful and harmful new rule.

American College of Pediatricians v. Becerra

In 2021, ADF attorneys filed a lawsuit on behalf of the American College of Pediatricians and CMA challenging an earlier iteration of the Biden administration mandate requiring doctors to perform so-called “gender transition” procedures on any patient, including children.

Performing harmful, potentially sterilizing procedures on children and adults not only violates sound medical judgment but also many doctors’ religious beliefs and consciences. No doctor should be forced to put their patients in danger because the federal government told them to do so.

Unfortunately, a federal district court dismissed the case. ADF attorneys appealed that decision to the U.S. Court of Appeals for the 6th Circuit in January 2023, and the case has been pending in that court since then. Now that a new rule has been issued, ADF is seeking to protect these doctors by filing new cases challenging the new rule.

Conclusion

Doctors and other healthcare professionals are best equipped to inform their patients about the potential effects of certain procedures. But the Biden administration is attempting to force doctors to perform procedures they disagree with and prevent them from even explaining the risks to the patients they are treating.

The federal government has no right to tell doctors they must perform harmful, life-altering procedures on people who want to appear as the opposite sex. The Biden administration’s blatant federal overreach violates the Constitution and puts patients in danger, and the courts should put a stop to it.

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Julie Blake
Julie Marie Blake
Senior Counsel
Julie Marie Blake serves as senior counsel for regulatory litigation at Alliance Defending Freedom.