Doctors Watch Their Language Under Federal Mandates For Transgender Patients

P. Gardner Goldsmith | July 18, 2016
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This week is when even unprejudiced, liberally minded, peaceful people can look like meanies.


Because this is the week when federal Department of Health and Human Services (HHS) mandates regarding the treatment of “Transgender” patients take effect.

Released on May 13, the new mandates from HHS will, as explained by the National Center for Transgender Equality:

… [M]ake illegal the practice of categorically excluding all gender transition-related health care from coverage, common in private health insurance plans, as well as in state Medicaid, Indian Health Service, and CHIP (Children’s Health Insurance Program) programs. Instead, plans will have to cover services for transgender people if they offer those services to non-transgender people or if denying the service is based on a discriminatory reason instead of a valid reason, such as a scientifically supported reason.

And while many supporters of lesbian-gay-bi-trans friends might find this laudable, if not simply equitable, those who believe in individual rights and the federal government utilizing only the powers it was granted under the Constitution have some qualms.

First, let’s begin at the foundational level. There is no provision in the U.S. Constitution that allows the Congress to fund any kind of health care, subsidize hospitals, local doctors, researchers or universities. Any federal funds that go to hospitals have been sent contrary to the enumerated powers in Article One of the Constitution.

Second, any regulation forced upon hospitals and medical practitioners who receive these unconstitutional funds must, therefore, be unconstitutional. Additionally, even if one were to accept the erroneous concept that federal funding of medical centers and their workers, or of individuals themselves, were constitutional, placing ex ante restrictions on what these medical professionals can say or do falls under the category of what are called “Unconstitutional Conditions,” which the U.S. Supreme Court has ruled are, well, unconstitutional, obviously. To amplify the principle, “Unconstitutional Conditions” are mandates that the feds, states, or localities place on individuals or groups in order for those individuals or groups to receive federal, state or local benefits. The most famous “Unconstitutional Conditions” case is likely the “Cabrini Green” case, in which people who wanted to live in a federally subsidized Chicago area housing unit were told they would have to give up their rights against unwarranted searches (in this case to search for drugs) if they wanted to live there. The Supreme Court overlooked the fact that federal housing units weren’t supposed to exist, but still found that the mandate was unconstitutional. Simple enough.

But how does this relate to the new HHS mandates?

Well, the Supreme Court has, at this point in time, erroneously found that the 2010 so-called “Affordable Care Act” is constitutional. These HHS mandates are add-ons to that ACA law, and apply to: (1) health settings that receive federal financial assistance, (2) every health program administered by the Department of Health and Human Services, and (3) every health program administered by Title I of the Affordable Care Act. The “non-discrimination” mandates apply to all of the coverage required above, and do even more.

Medical service providers at most hospitals and doctors’ offices now will be required to address the transgender patient by the “proper pronouns,” and if the provider does not, he or she could be subject to disconnection from federal funds and/or fined.

Most people would probably want doctors to address folks with the proper pronouns, but when we begin to enter a world where one’s speech can be mandated by the federal government, that might just be a zone we would call an “Unconstitutional Condition.”

But the government has invaded so many areas of our lives that rights are rarely seen as rights any more. Airline pilots and flight attendants supposedly have the right to keep and bear arms, yet in the airways that are unconstitutionally and poorly managed by the Federal Aviation Administration and Department of Homeland “Security,” their rights are no longer rights.

Speech rights now run up against equality of federal benefits and federal mandates. It is unlikely that anyone bringing suit against these “Unconstitutional Conditions” will win in a Supreme Court battle, even with the precedent of Cabrini Green, but one can be sure that doctors and other medical practitioners will run into problems because of this new mandate.

The issue here is clear: the federal government does so much in so many areas that everyone wants their equitable place at the table. But the table itself is not supposed to be furnished or handled by the feds. Instead of recognizing this, many Americans would rather fight over the scraps our masters toss us.