Chief Compliance and Ethics Officer Health Care

Gender Identity

  • 1.  Gender Identity

    Posted 08-06-2020 02:09 PM

    On June 15, 2020, the United States Supreme Court ruled that workplace discrimination on the basis of sexual orientation and gender identity is prohibited by Title VII of the Civil Rights Act of 1964 ("Title VII").  Does the Trump Rule contradict that? Do I take "gender identity" out of our non-discrimination policy or not?  What are your thoughts?

     

    Trump Finalizes Rule Defining Gender as a Person's Biological Sex

    August 6, 2020/by Washington Times

    The Trump administration on Friday finalized a regulation that defines gender as a person's biological sex, reversing an Obama-era rule aimed at protecting transgender people against sex discrimination in health care.

    The Health and Human Services Department regulation says essentially that "gender identity" is not protected under federal law prohibiting sex discrimination in health care.

    The policy shift was long sought by religious and social conservatives. The Obama administration's regulation defined gender as a person's internal sense of being male, female, neither or a combination.

    Dr. Grazie Pozo Christie, policy adviser for The Catholic Association, praised the move. She said preventing "discrimination on the basis of sex" was intended "to ensure that women are treated on a par with men."

    "Changing the definition of sex to mean 'gender identity' and to include unfettered access to abortion would not have protected the vulnerable," she said. "Instead, it would have made it impossible for doctors to decline to perform ethically problematic procedures (like late-term abortion) and experimental and dangerous ones (like the removal of healthy organs from young patients with gender dysphoria.) Getting the government out of the business of social engineering, and out of the way of sound medical ethics and patient care is a step forward."

    Thanks in advance for your insight!



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    Cinda
    Compliance/Ethics & Privacy Director
    Ohio
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    19th Annual CEI Virtual Conference


  • 2.  RE: Gender Identity

    Posted 08-06-2020 03:03 PM
    My printable thoughts are that we, as an organization, (a) do not want to discriminate on the basis of gender and (b) do not expect the Trump Administration's Rule to remain in place for long for one of several possible reasons and do not want to keep changing our policies.

    We are leaving that prohibition in our policies and notices.

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    Scott Intner
    Chief Compliance Officer
    GW Medical Faculty Associates
    Washington,DC
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    19th Annual CEI Virtual Conference


  • 3.  RE: Gender Identity

    Posted 08-06-2020 03:54 PM

    Thank you Scot!

    Cinda

     

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  • 4.  RE: Gender Identity

    Posted 08-07-2020 08:34 AM
    I had not seen this before, but I will watch to see what comes out concerning this issue.  thanks for the posting.

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    Lloyd Hemmert
    Compliance & Ethics Officer
    Hill Country MHDD Centers
    Kerrville,TX
    [lhemmert@hillcountry.org]
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    19th Annual CEI Virtual Conference


  • 5.  RE: Gender Identity

    Posted 08-07-2020 10:56 AM

    Thanks Lloyd!

    Cinda

     

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  • 6.  RE: Gender Identity

    Posted 08-07-2020 09:42 AM
    The Supreme Court ruling was decided after Trump's decision.  The linked document from the U.S. Commission on Civil Rights discusses how Title Vll literally trumps Trump's decision.

    https://www.usccr.gov/files/2020-06-19-USCCR-Calls-for-Changes-Post-Bostock.pdf

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    [Regina] [Sisk]
    [Compliance Officer]
    [The Equita Group]
    [Dallas][Texas]
    [r.sisk@equita1.com]
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    19th Annual CEI Virtual Conference


  • 7.  RE: Gender Identity

    Posted 08-07-2020 11:54 AM

    Thank you Regina!

    Cinda

     

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  • 8.  RE: Gender Identity

    Posted 08-07-2020 04:40 PM
    The Supreme Court's decision affected only Title VII cases, which means it applies only to employment discrimination. From the viewpoint of strict legalities, the Administration's policy remains in effect. I agree with Scott and Regina that the probably will be changed soon, if not by administrative action, by a court challenge.

    Remember that state laws may give broader protection in this area than the federal law does.

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    Randall Holbrook
    [ManagingDirector, Governance, Risk & Compliance and General Counsel]
    LegalResearch.com - Legal Research Center, Inc.
    Minneapolis,MNrandy.holbrook@legalresearch.com
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    19th Annual CEI Virtual Conference


  • 9.  RE: Gender Identity

    Posted 08-10-2020 08:47 AM

    Thank you for the clarification Randall!

    Cinda

     

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  • 10.  RE: Gender Identity

    Posted 08-17-2020 04:29 PM
    The District Court for SDNY agreed with Regina and, based on SCOTUS's opinion in Bostock, struck CMS's rule.  It also found that the issuance was "arbitrary and capricious".  https://www.courtlistener.com/recap/gov.uscourts.nyed.449566/gov.uscourts.nyed.449566.23.0.pdf

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    Scott Intner
    Chief Compliance Officer
    GW Medical Faculty Associates
    Washington,DC
    ------------------------------

    19th Annual CEI Virtual Conference


  • 11.  RE: Gender Identity

    Posted 08-17-2020 04:56 PM
    Thanks for posting - this is a very interesting opinion, and I think the reasoning is solid.

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    Randall Holbrook
    Managing Director, Governance, Risk & Compliance and General Counsel
    LegalResearch.com - Legal Research Center, Inc.
    Minneapolis,MN randy.holbrook@legalresearch.com
    ------------------------------

    19th Annual CEI Virtual Conference


  • 12.  RE: Gender Identity

    Posted 08-17-2020 04:57 PM
    thank you for this excellent reference.

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    Lloyd Hemmert
    Compliance & Ethics Officer
    Hill Country MHDD Centers
    Kerrville,TX
    [lhemmert@hillcountry.org]
    ------------------------------

    19th Annual CEI Virtual Conference


  • 13.  RE: Gender Identity

    Posted 08-17-2020 05:31 PM
    Interesting read - thanks for posting, Scott.

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    Marie Wagner, CHC, CHRC
    Operations Manager, Corporate Compliance
    The Queen's Health Systems
    Honolulu, HI
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    19th Annual CEI Virtual Conference


  • 14.  RE: Gender Identity

    Posted 08-17-2020 05:59 PM
    THat is perfect. Thank you Scott!

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    [Regina] [Sisk]
    [Compliance Officer]
    [The Equita Group]
    [Dallas][Texas]
    [r.sisk@equita1.com]
    ------------------------------

    19th Annual CEI Virtual Conference


  • 15.  RE: Gender Identity

    Posted 08-18-2020 08:07 AM

    Thank you Scot!  Am I correct in my understanding that this only affects the part of the 2020 rule that addresses the definition of sex, and that all other aspects of the 2020 Final Rule are effective as of today?

    Cinda

     

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  • 16.  RE: Gender Identity

    Posted 08-18-2020 08:47 AM
    Yes, as I read the Judge's Order, the 2019 promulgation entitled Nondiscrimination in Health and Health Education Programs or Activities, found at 84 Fed. Reg. 27,846, 27,856 (June 14, 2019) is struck to the extent it repeals the 2016 definition of discrimination on the basis of sex from that which had been issued and finalized in 2016 in the Nondiscrimination in Health Programs and Activities, 80 Fed. Reg. 54,172 (Sept. 8, 2015).

    Accordingly, the Court stays the repeal of the 2016 definition of discrimination on the basis of sex. As a result, the definitions of "on the basis of sex," "gender identity," and "sex stereotyping" currently set forth in 45 C.F.R. § 92.4 will remain in effect. In addition, the Court preliminarily enjoins the defendants from enforcing the repeal. Both the stay and the injunction shall remain in effect pending further order of this Court.


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    Scott Intner
    Chief Compliance Officer
    GW Medical Faculty Associates
    Washington,DC
    ------------------------------

    19th Annual CEI Virtual Conference


  • 17.  RE: Gender Identity

    Posted 08-18-2020 09:11 AM

    Great!  Thank you Scot!  Now we can stop mailing the taglines with our billing statements!

    Cinda

     

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