U.S. Bishops advocate against nondiscrimination language in HHS proposal

NEW YORK – Counsel for the United States Conference of Catholic Bishops have written to the U.S. Department of Health and Human Services with concerns about language in a proposed regulation that mandates nondiscrimination on the basis of gender identity and sexual orientation.

The proposed HHS regulation states in part: “It is the policy of the HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as race, color, national origin, religion, sex, gender identity, sexual orientation, or disability.”

The second part of that specific section of the proposed regulation states that anyone who bids for an HHS contract understands that if they are awarded a contract they agree to comply with the policy requirements, which includes the discrimination clauses outlined above.
Therefore, if this rule proposal is enacted, it’s likely that many Catholic entities would be out of the running for HHS contracts because of an unwillingness to comply with the nondiscrimination regulation. A religious exemption is absent from this proposed regulation, which Catholic leaders have long advocated for as a must in government rules and regulations of this nature.

The proposed regulation was published by the department on Oct. 3, and comments can be submitted for consideration for the final rule through Dec. 2. In a Nov. 20 letter, counsel for the USCCB highlighted that the proposal “provides no explanation” of how the nondiscrimination agreement will be  construed, or work in practice as applied to HHS programs, services, and contracts it enters into.

“In the absence of an explanation, we are concerned that, for health programs and services, the requirement of nondiscrimination on the basis of gender identity could be construed to require the provision of so-called ‘gender-affirming care’ and the exclusion of all other forms of treatment for gender dysphoria, especially in minors,” USCCB counsel said.

“Simply, the requirement of nondiscrimination on the basis of sexual orientation could be construed to require the provision of counseling and other care that affirms same-sex attraction, again to the exclusion of all other forms of counseling and other treatment, especially minors.”

The U.S. bishops letter is one of 12 comments that have been submitted on the proposed regulation, according to the Federal Register. It’s unclear who submitted the other comments and their context. HHS did not immediately respond to a Crux request for comment.

If the proposed rule becomes final, it will apply to all HHS programs and services, of which there are more than 100 across the department’s different divisions. Because of the nondiscrimination language, USCCB counsel urged the department to reject the proposed regulation.

“Given the ambiguities in the current proposed regulation, and for the reasons stated here and in our previous comments, we urge the Department to reject the proposed requirement of nondiscrimination on the basis of ‘sexual orientation and gender identity,” USCCB counsel said.

“Even if the Department rejects this recommendation, at a minimum it should acknowledge in the final acquisition regulation that it lacks a general police power to regulate the health professions, and that its nondiscrimination requirements do not mandate or bar the provision of any specific type of treatment or care,” USCCB counsel continued.