[1] HHS has estimated the rule will “likely cover[] almost all licensed physicians because they accept Federal financial assistance” in more than one program and in more than one setting. Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31375, 31445 (May 18, 2016).

[2] The Mandate says that a hospital “will be held accountable for discrimination under Section 1557” where “a doctor is an employee of a hospital.” 81 Fed. Reg. 31384. In addition, if a doctor “works as an attending physician at a hospital,” then the doctor’s practice, as well as “the hospital may be responsible for discrimination by the doctor’s practice that occurs at the hospital.” Id. Thus, if a doctor who is simply following his or her best medical judgment is found to violate the Transgender Mandate, that doctor may not be able to get a job at any hospital because the hospital will be face serious liability and financial penalties under the new rule for employing that doctor. See also 45 C.F.R. § 92.301 (“The enforcement mechanisms available for and provided under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, or the Age Discrimination Act of 1975 shall apply for purposes of Section 1557” including “compensatory damages”).

[3] Other observers have estimated that the rule will apply “to over 133,000 (virtually all) hospitals, nursing homes, home health agencies, and similar provider facilities, about 445,000 clinical laboratories, 1,200 community health centers, 171 health-related schools, state Medicaid and CHIP programs, state public health agencies, federally facilitated and state-based marketplaces, at least 180 health insurers that market policies through the FFM and state-based marketplaces, and up to 900,000 physicians.” Timothy Jost, Implementing Health Reform: HHS Proposes Rule Implementing Anti-Discrimination ACA Provisions (Contraceptive Coverage Litigation Update), Sept. 4, 2015, http://healthaffairs.org/blog/2015/09/04/implementing-health-reform-hhs-proposes-rule-implementing-anti-discrimination-aca-provisions/.

[4] “Based on a thorough review of the clinical evidence available at this time,” HHS wrote, “there is not enough evidence to determine whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria.” HHS also noted that “There were conflicting (inconsistent) study results—of the best designed studies, some reported benefits while others reported harms.” Centers for Medicare & Medicaid Services, Proposed Decision Memo for Gender Dysphoria and Gender Reassignment Surgery (June 2, 2016), at http://www.becketfund.org/wp-content/uploads/2016/08/proposed-memo.pdf (emphasis added).

[5] Id.

[6] “A provider specializing in gynecological services that previously declined to provide a medically necessary hysterectomy for a transgender man would have to revise its policy to provide the procedure for transgender individuals in the same manner it provides the procedure for other individuals.” 81 Fed. Reg. at 31455. Despite significant debate in the medical community about the medical prudence of some of these procedures, the rule states that a view of “transition-related treatment” as “experimental” is “now recognized as outdated and not based on current standards of care.” Id. at 31435.