Explainer: HHS reinterprets healthcare discrimination law to include sexual orientation and gender identity
By / Oct 5

On Aug. 4, the Department of Health and Human Services (HHS) issued a proposed rule that would significantly reinterpret the Affordable Care Act’s Section 1557 nondiscrimination provision by expanding the definition of “sex” to include sexual orientation, gender identity, and pregnancy-related conditions. Section 1557 of the Patient Protection and Affordable Care Act (ACA) is a nondiscrimination provision that prohibits discrimination on the basis of race, color, national origin, sex, age, or disability under any federally funded health program or activity, executive agency, or entity under Title I of the ACA.

Following the announcement, HHS allowed 60 days for organizations and individuals to comment with concerns. The ERLC submitted comments raising our concerns with the proposed rule. As that comment period closed Monday, HHS is obligated to respond to each of these comments before putting forward a finalized rule.

How has Section 1557 been interpreted historically?

During the Obama administration, new regulations expanded the scope of section 1557’s nondiscrimination policies by redefining “sex” to include sexual orientation, gender identity, and termination of pregnancy. The regulations raised a number of significant issues regarding religious liberty and freedom of conscience. For instance, physicians would be required to provide gender reassignment surgeries and administer hormones to facilitate gender reassignment, including to children. The regulations even required medical professionals to perform abortions in violation of their deeply held convictions.

In response to these new regulations, five states and three private healthcare providers filed suit to challenge the final rules. In Franciscan Alliance v. Burwell (2016), a federal district court held that HHS erroneously interpreted “sex” under Title IX and that the final rule was arbitrary and capricious, while Title IX “unambiguously refers to the biological and anatomical differences between male and female students as determined at their birth.” The court further ruled that the final rule’s failure to include religious exemptions likely violated the Religious Freedom and Restoration Act (RFRA) and the Administrative Procedure Act (APA).

In 2020, the Trump administration finalized a rule reversing the Obama administration’s regulations on Section 1557 and narrowing the definition of “sex.” Days after the final rule was issued, the Supreme Court handed down a 6-3 ruling in Bostock v. Clayton County that expanded the definition of “sex” to include “sexual orientation” and “gender identity” for the purposes of employment discrimination under Title VII of the Civil Rights Act of 1964. This year, the Biden administration reversed the 2020 rule, then reinstated and expanded the Obama administration’s 2016 rule using the Bostock decision as a justification for its redefinition of “sex.”

Why is this change problematic?

While HHS allegedly plans to comply with the Religious Freedom Restoration Act and all applicable court orders involving section 1557 regulations, it is unclear what this proposed rule means for religious healthcare professionals and insurance providers. Medical professionals and providers could be forced to administer or cover gender reassignment treatments if they provide the same underlying treatments for other conditions, regardless of their objections to the treatment for religious or moral reasons. That is, if a physician performs hysterectomies for cancer patients or hormone therapy for patients with hormone imbalances, HHS may force that doctor to administer those same treatments for patients seeking gender reassignments.

This rule also expands the legal definition of “sex” to include “pregnancy-related conditions”—a term that prohibits discrimination on the basis of “pregnancy, childbirth, termination of pregnancy, or lactation.” While the exact implications of this expansive terminology are still unclear, advocates are concerned that the administration could again weaponize the “termination of pregnancy” language to mandate healthcare providers and other organizations to include abortions and abortifacents in their plans. The government should never fund abortions nor force healthcare professionals to violate their dearly held pro-life convictions. Pro-life appropriations riders such as the Hyde, Weldon, and Church amendments should always be included in the annual budgetary process and strictly followed by executive agencies like HHS.

How has the ERLC responded?

The ERLC has submitted public comments laying out our concerns with the proposed rule and urging them to reconsider making these changes. This proposed rule would have deeply concerning ramifications for life, religious liberty, and the good of our neighbors if enacted. As ERLC’s Jason Thacker said when the proposed rule was introduced, “No matter how quickly our society shifts on the fundamental issues of life and human sexuality, people of faith should not be forced to participate in or promote the myth that we can create our own realities outside of God’s good design for human sexuality and flourishing,” The ERLC will continue to monitor these changes and look for additional opportunities to raise our concerns and advocate for the recognition of God’s good design for biological sex and for the protection of religious liberty.

Explainer: Department of Justice drops lawsuit against University of Vermont Medical Center
By / Aug 6

As American culture continues to transform, one of the areas of particular concern for communities of faith is the preservation of religious liberty and all its applications. From the pew to the public square, people of faith have long enjoyed accommodations allowing them to act according to their conscience, abstaining from actions that would violate their deeply held religious convictions, for instance. This has long been a hallmark of life in America.

But recent actions by the current administration threaten to undermine these fundamental exercises of freedom. The Department of Justice, on July 30, dismissed a lawsuit filed by its Civil Rights Division against the University of Vermont Medical Center (UVMMC) which stated that UVMMC, in forcing a staff member to participate in an abortive procedure despite her stated moral objections, violated “the federal anti-discrimination statute known as the Church Amendments.” What proved to be a clear violation of the law by UVMMC ended with “no admission of guilt, no injunction, no corrective action, no settlement,” resulting in what Roger Severino says is “effectively a full pardon” for the organization. The ERLC joins Severino and the team at the Ethics and Public Policy Center in decrying this outrageous development. 

What was the lawsuit about?

On Aug. 28, 2019, the U.S. Department of Health and Human Services (HHS), Office for Civil Rights issued a Notice of Violation stating that “after a thorough investigation and prolonged attempts to resolve the matter,” it was determined that UVMMC “violated the Church Amendments (42 U.S.C. 300a-7) by forcing a nurse to assist in an elective abortion procedure over the nurse’s conscience-based objections.” 

In response to these findings, “the Justice Department’s Civil Rights Division”, on Dec. 16, 2020, “filed a civil lawsuit in Vermont federal court against the University of Vermont Medical Center” for its egregious act of discrimination. 

In the Justice Department’s press release, referring to the aforementioned “Church Amendments,” the statement declares that “that statute prohibits health care entities like UVMMC from discriminating against health care workers who follow their conscience and refuse to perform or assist with abortions.” The statement goes on to call UVMMC’s actions “an indecent coercion that violates everything this country stands for,” a “shocking and outrageous attack against the right of all people in this free country to follow their conscience,” and stating, “the U.S. Department of Justice will not stand for it.” 

Why was the lawsuit dropped?

Shockingly, though, the newly appointed Justice Department had a dramatic change of mind, deciding to “stand for it,” after all. 

According to Severino, the Department of Justice’s and HHS’ unusual step of dropping “a duly authorized lawsuit after it has been investigated and filed” is attributable to the newly elected and appointed administration. Since the violation, investigation, and eventual lawsuit all occurred under the previous administration, and seemed headed for some sort of lawful resolution, it is difficult to explain this move in any other way.

What happens next in this case?

Because the case was voluntarily dropped by the Department of Justice, it appears that no further action will be taken. As Severino pointed out, there was no admission of guilt, no order of injunction, no recommendation for corrective actions or measures, and no settlement awarded to the victim in this case. Furthermore, the victim herself has little-to-no legal actions at her disposal “due to nuances around private rights of action.” 

As such, the University of Vermont Medical Center will continue to receive federal funds “despite it having been found by the U.S. Department of Health and Human Services to have violated the law.”

What’s at stake in this case and others like it?

Considering the language used by Eric Dreiband, former assistant attorney general for the Justice Department’s Civil Rights Division, “everything that this country stands for” is at stake in a case such as this. 

Flagrant forms of discrimination like this against persons of faith are a direct violation of federal law, as the HHS Office for Civil Rights articulated in its Notice of Violation. Moreover, it is a transgression against one of the most fundamental human rights, freedom of conscience. If the outcome of this case is indicative of this administration’s intentions toward people of faith, then it signals a blatant disavowal of America’s most foundational and cherished liberty. 

Christians should stand ready to involve ourselves in the work of preserving and expanding conscience-protections on behalf of all people of faith, ensuring that religious and civil liberties continue to enjoy robust protections.  As always, the ERLC is committed to working on behalf of Southern Baptists, the broader Christian community, and all people of faith to defend these fundamental rights. 

Are there forthcoming legislative remedies?

In terms of expanding conscience-protections, specifically in the field of healthcare, Sen. James Lankford (R-OK), in January 2019, introduced the Conscience Protection Act, an effort “to protect healthcare providers, including health care professionals, entities, and health insurance plans from government discrimination if they decline to participate in abortions,” which he then reintroduced on Feb. 23, 2021.

Whereas, in the event of a situation like that which occurred at UVMMC, where conscience-protections were clearly violated, “the only recourse is to file a complaint with the HHS Office for Civil Rights,” the Conscience Protection Act “provides doctors, nurses, and other health care workers permanent protection from being discriminated against by employers if they choose to follow their conscience and do not wish to perform, participate in, or provide an abortion.” As Lankford says, “Many entered health care to protect life; they should not be forced to take a life to keep their jobs.”

The passage of this bill would be a commendable step toward protecting the rights of conscience for those employed in the healthcare industry, and it’s one that the ERLC wholeheartedly supports. 

It is likely that cases similar to the one at UVMMC will continue to pop up as culture trends in a secular direction, but legislation like the Conscience Protection Act would ensure that robust and necessary protections are guaranteed for conscience-bound healthcare workers who find themselves in morally objectionable situations. 

Explainer: Removal of EEOC general counsel creates concern for religious liberty protections
By / Mar 9

On Friday, President Joe Biden removed the general counsel of the U.S. Equal Employment Opportunity Commission (EEOC), an action seen by many as controversial. Sharon Gustafson was appointed by President Donald Trump in 2018 to serve as the agency’s top litigator through 2023. She recently sent a letter to President Biden on March 5 declining his request to resign. 

“I have confidently given this advice to countless embattled clients over the last 25 years: hold your head high, do your best work, and do not resign under pressure,” Gustafson wrote in her letter to the president. “In solidarity with them, I will follow that advice.”

The administration previously fired the general counsel of the National Labor Relations Board General Counsel (NRLB), another Trump appointee, who also refused to resign. President Biden’s decision to fire Gustafson may have significant implications for religious liberty protections, which would be deeply concerning for Christians.

What is the EEOC?

The EEOC is the federal agency responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, national origin, age (40 or older), disability or genetic information. This also applies to sex, which includes pregnancy, sexual orientation, and transgender status.

EEOC laws apply to most employers with at least 15 employees and 20 employees in age discrimination cases. Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.

The EEOC has such powers as the ability to litigate discrimination cases and issue regulations interpreting the law. The agency can also accepts charges of discrimination from employees, investigates those charges, and attempts to mediate settlements between employees and employers.

Can’t the president fire anyone in his administration?

It’s unclear whether the president has the authority to fire officials at the EEOC. Within the executive branch of the federal government there are certain agencies, such as the EEOC and NRLB, which are supposed to operate as independent agencies. 

The 1935 case of Humphrey’s Executor v. United States ruled that the Constitution had never given “illimitable power of removal” to the president, and that President Hoover could not remove William E. Humphrey as a commissioner of the Federal Trade Commission (FTC). It is possible that this firing will lead to further litigation that expands on the Supreme Court’s recent decision in Seila Law v. Consumer Financial Protection Bureau, which dealt with the Consumer Financial Protection Bureau.

In any case, it is safe to say that the Biden Administration’s action is without legal precedent and may be overturned.

What is the EEOC’s role in implementing Bostock v. Clayton County?

In June of 2020, the Supreme Court issued a 6-3 ruling in a consolidated group of cases styled Bostock v. Clayton County. With the Bostock decision, the Supreme Court expanded the definition of “sex” to include “sexual orientation” and “gender identity” under Title VII of the Civil Rights Act of 1964. 

Bostock was a sweeping decision that fundamentally redefined the legal definition of “sex” and threatened, substantially, the conscience freedoms of religious employers in the United States. Because the EEOC is tasked with enforcing federal laws against discrimination, the commission will play a critical role in implementing Bostock and investigating claims of workplace discrimination. To a large extent, the leadership of the EEOC will determine whether or not the commission wields the weight of the federal government to threaten companies with dissenting views about human sexuality. Further, should the Equality Act become law, the EEOC will also pay a significant role in the implementation of this troubling legislation.

What is the role of the general counsel?

According to the EEOC, the General Counsel is responsible for managing, coordinating, and directing the Commission’s enforcement litigation program. As the agency’s counsel, they also provide overall guidance and management to all the components of the Office of General Counsel, including field office legal units.

The General Counsel is also responsible for developing litigation strategies designed to attain maximum compliance with federal laws prohibiting discrimination in employment. 

Why did Biden fire Gustafson?

The Biden administration has not stated its official reasoning for wanting to remove Gustafson as general counsel. However, after her nomination, several LGBTQ activist groups opposed her appointment to the EEOC. They opposed her, in part, because of the “evasive and non-committal” answers she gave “regarding the rights of LGBT workers.” 

In her letter declining to resign, Gustafson noted that after Biden’s inauguration, information on her efforts to promote religious freedom were removed from the EEOC website.

What is Gustafon’s record on religious liberty for employers?

Gustafson had been seen as an advocate for religious freedom. As she pointed out in her letter to President Biden, she focused on religious discrimination in the workplace throughout her time at the EEOC. She noted that during her tenure, “a Religious Discrimination Work Group” was established “that hosted a series of Listening Sessions in which a diverse group of religious representatives — including Christians, Hindus, Jews, Muslims, and Sikhs — recommended ways the EEOC could  improve its response to employees who experience religious discrimination.” 

Additionally, rather than penalizing those with religious views, Gustafson prioritized balancing religious liberty concerns with competing claims of discrimination.

What does this mean?

Because the administration has refused to provide its rationale for seeking Gustafson’s resignation, it is unclear exactly why these actions were taken. However, there is reason to believe that this effort to interfere with an independent government agency is being done in service to the LGBT lobby. In any case, this action violates the EEOC’s autonomy and may portend further hostility toward Americans who dissent from the radical sexual orthodoxy of the progressive movement. The effort to replace Gustafson sends troubling signs about the future on these issues.

The Equality Act: A dangerous law with a clever name
By / Feb 25

If you were looking for the very best way to get Americans to accept a radical piece of legislation, giving the bill a clever name would be near the top of the list. This is exactly the case with the so-called “Equality Act,” officially known as H.R. 5. Judging by its name alone, it seems like the kind of legislation that almost anyone would support. After all, what kind of person is opposed to equality? Even more, the bill is supposedly an effort to combat discrimination. And what kind of monster would think discrimination is good? 

But here’s the real issue: it takes more than a clever name to make a good law. And once you move past its name, the serious issues with H.R. 5 are both obvious and alarming.

The Equality Act

The truth is, the Equality Act is not just a bad bill; it’s a dangerous one. (See our explainer and one-pager). It does not represent a good faith effort to protect LGBT Americans from discrimination. It is, in fact, an effort to codify into law the progressive orthodoxy of the sexual revolution and to legally silence those who dissent. 

H.R. 5 would “expand the definition of ‘sex’ to include ‘sexual orientation’ and ‘gender identity’ (SOGI) and would revise every title of the Civil Rights Act of 1964 to add these categories as new protected classes in the federal code.” Should it be enacted, it would imperil religious freedom, substantially harm women and girls, and cement a false conception of the human person into our nation’s laws and consciousness. Not to mention the fact that it would effectively destroy the clear (biologically determined) distinctions between males and females in our society and laws.

And for these reasons, it is paramount that H.R. 5 is defeated.

Addressing discrimination

Christians should oppose discrimination and stand up for human dignity. Of all people, followers of Jesus should recognize the inherent value of every person, regardless of their age, race, ability, religion, or any other details or features that define them, including their sexual orientation and sense of gender identity. Every person is created by God and made in his image (Gen. 1:26-27). That is why every person matters. Regardless of who they are, what they believe, or what they’ve done, no one can separate themselves from the image of God. Being stamped with God’s image means that each person possesses intrinsic dignity and deserves to be treated with respect.

There is no doubt that people in the LGBT community sometimes experience discrimination. But as Ryan T. Anderson points out, “Rather than finding common-sense, narrowly tailored ways to shield LGBT-identifying Americans from truly unjust discrimination, [H.R. 5] would act as a sword — to persecute those who don’t embrace newfangled gender ideologies.”

Anderson is correct. If the Equality Act were merely attempting to eliminate unjust discrimination, it would likely enjoy enthusiastic and bipartisan support. But it isn’t. 

Instead, in the name of “antidiscrimination” H.R. 5 would see Christians and others forced to deny their sincerely held beliefs or suffer untold consequences at the hands of the state. It would see women and girls forced to share private spaces with biological males. It would see pro-life conscience protections stripped away from healthcare professionals. And it would threaten the very existence of countless faith-based charities and nonprofits. 

Disagreement isn’t discrimination

We live in an age where disagreement on issues of sexuality is construed as violence. Christians and others who hold to traditional understandings of gender and sexuality are frequently slandered as zealots and bigots. But in most cases, such charges are baseless.

H.R. 5 would punish people who, whether on the basis of the Bible or biology, hold fast to their beliefs that there are only two sexes (male and female), that gender is tied to biology, and that both of these realities are permanent and fixed. 

Christians should have enormous compassion for people struggling with their sexual identities and for people who believe there is some kind of misalignment between their biological sex and their internal sense of gender. But that compassion doesn’t negate our convictions about God’s intentional design for men and women. Nor does it undermine the importance of biological realities.

Men and women are different. Public policy shouldn’t punish people for adhering to facts supported by science, reason, and faith. Moreover, women and girls shouldn’t be forced to share changing facilities and restrooms with biological males or to compete against them in athletic competitions. Faith-based nonprofits shouldn’t be forced to choose between maintaining their beliefs about human sexuality or ceasing operations. Healthcare professionals shouldn’t be forced to violate their consciences (and medical training) in order to remain licensed and employed.

Opposing the Equality Act

Legislation that would punish people for recognizing distinctions written into our DNA is not a serious way to advance equality. It is, however, a clear demonstration of the strength of the LGBT lobby. People of faith, and all Americans of goodwill, should reject H.R. 5 for exactly what it is, reckless government overreach. 

This bill would eradicate safeguards, destroy civil liberties, and obliterate freedom of conscience. It would also erase women and girls and supplant biological facts with subjective experiences. Supporting H.R. 5 is no way to advance equality.