The Biden Administration’s Regulatory Superweapon for Its Radical Agenda

By: L. Martin Nussbaum

November 20, 2022

After the midterm elections, President Biden promised that “nothing will change.” With Congress remaining gridlocked, he will rule by executive order and regulation. One of his more significant actions will likely consist of making final a regulation his Department of Health and Human Services proposed on August 4. Innocuously titled “Nondiscrimination in Health Programs and Activities,” it will impose a series of sexual health-plan-coverage and hospital-performance mandates that will constitute a cultural earthquake for hospitals, doctors, employers, and families.

Through this rule, HHS is leveraging Section 1557 of the Affordable Care Act to transform it into a new super sexual-rights statute. When HHS makes its 1557 Rule final, it, acting in concert with the EEOC, will mandate that physicians and hospitals perform chemical and surgical abortions and deliver an ever-expanding list of services called “gender-affirming care” (GAC) for “non-binary persons.” They will also require employers, insurers, and third-party administrators to cover such services in their health plans. The gender-nonconforming persons will include not only those identifying as transgender but also those identifying as eunuchs. HHS will partially delegate its future rulemaking in this area to radicalized medical societies, including the American Academy of Pediatricians, the Endocrine Society, the American Academy for Child and Adolescent Psychiatry, and, especially, the World Professional Association for Transgender Health, so that their standards of care will ipso facto have the force of law. This is why HHS says that “Section 1557 . . . is one of the government’s most powerful tools” to advance its sexual-rights agenda.

There was a prequel to HHS’s announcement of its new rule on March 31, which has been designated International Transgender Visibility Day. By that date, HHS and two sister agencies had published statements previewing the new regulation: HHS’s Notice and Guidance on Gender Affirming Care, the Office of the Assistant Secretary of Health’s Gender-Affirming Care and Young People, and National Child Traumatic Stress Network’s Gender-Affirming Care Is Trauma-Informed Care. These statements introduced a new term, “gender-affirming care” in place of what HHS previously called “gender transition services.” “Affirming care” sounds better, and it means more. It includes not only cross-sex hormones, breast removal, and genital-mutilating surgeries, but also puberty blockers, gender-conforming cosmetic surgeries, social affirmation, access to single-sex spaces and programs, examinations of conscience, and reform of personal biases.

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