Children's clinic sues HHS to stop Biden admin.'s new definition of 'sex'

By Ryan Foley, Christian Post Reporter Wednesday, May 15, 2024

The U.S. Department of Health and Human Services building is shown August 16, 2006, in Washington, D.C. The HHS building, also known as the Hubert H. Humphrey building, is located at the foot of Capitol Hill and is named for Humphrey, who served as a U.S. senator from Minnesota and vice president of the United States. | Mark Wilson/Getty Images

A healthcare provider in Mississippi is suing the Biden administration over its new interpretation of nondiscrimination provisions barring discrimination based on sex to include sexual orientation and gender identity.

McComb Children's Clinic filed the lawsuit on Monday against the U.S. Department of Health and Human Services, HHS Secretary Xavier Becerra and HHS Office of Civil Rights Director Melanie Fontes Rainier in the U.S. District Court for the Southern District of Mississippi Western Division.

The complaint challenges the recent change in the interpretation of the nondiscrimination provisions of Section 1557 of the Affordable Care Act to include sexual orientation and gender identity.

The change, published in the Federal Register on May 6, clarifies that "[d]iscrimination on the basis of sex includes discrimination on the basis of sex stereotypes; sex characteristics, including intersex traits; pregnancy or related conditions; sexual orientation; and gender identity" as well as "marital, parental, or family status." It is scheduled to take effect on July 5.

Section 1557 of the Affordable Care Act governs "recipients of federal financial assistance," including "clinics, hospitals, and doctors that accept patients paying through Medicare, Medicaid, and [the Children's Health Insurance Program.]"

The complaint warns that the failure of McComb and similar healthcare providers to comply with the new rule could lead HHS to "punish them with huge financial penalties and exclude them from treating patients paid through [the] federally funded programs."

Such a scenario "would effectively prevent them from treating the most vulnerable children in Mississippi unless they ascribe to the radical gender ideology imposed by the president and his bureaucrats in Washington, D.C.," the filing states.

The lawsuit takes issue with the inclusion of "sexual orientation and gender identity" under the umbrella of sex, asserting that with "many cases, such as in sports with physical contact, these opportunities must be specific to sex."

"Title IX, its regulations, and longstanding guidance do not mention or forbid discrimination based on 'gender identity,'" the complaint continued, adding that "the ACA cannot be construed legitimately to require entities covered by Section 1557 to provide, facilitate, or speak in favor of 'gender transitions.'"

"Based on MCC's view of medical science and ethical medical practice, it categorically does not provide medical interventions or referrals for, and does not facilitate or speak in ways that affirm the legitimacy of, the practice of 'gender transition.'"

The clinic asks that a federal judge issue an opinion declaring the changes to the interpretation of Section 1557 unlawful and prevent HHS from enforcing it against them. It also seeks the awarding of attorney's fees.

"Doctors should be allowed to fulfill their Hippocratic Oath to do no harm and follow their medical judgment without fear of government intervention," said Alliance Defending Freedom Senior Counsel Matt Bowman, who is representing the clinic, in a statement on Tuesday.

"These radical changes by HHS will completely upend the practice of medicine. The Biden administration is working to force doctors to do harm by providing unnecessary procedures that remove healthy body parts and prescribing puberty blockers."

Ryan Foley is a reporter for The Christian Post. He can be reached at: ryan.foley@christianpost.com