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Source: (consider it) Thread: Religious freedom for physicians
Josephine

Orthodox Belle
# 3899

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I think, in the past, there was a certain level of trust, that each side would do the right thing. And, of course, we have our checks and balances -- so if the executive goes off the rails, the judiciary is supposed to pull them back on track.

Which may be what this judge thought he was doing, from comments up the thread. I don't know.

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Leorning Cniht
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# 17564

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quote:
Originally posted by orfeo:

And it's at least questionable whether you can take a law about discrimination on the basis of sex and then say lower down that (1) it also applies to gender identity, and (2) it also applies to a past history that only a woman can have.

AIUI there is significant case law from before the UK Equality Act 2010 that established discrimination on grounds of pregnancy as an example of sex discrimination under the 1975 act.
This case law explicitly rules out discrimination on grounds that can be proxies for sex (you can't discriminate against pregnant people, people with ovaries, people who have had hysterectomies, and so on, because those categories can all only apply to women).

(Irrelevant sidenote: Now that changing sex is legal, a (trans-)man can have been pregnant, had a hysterectomy and so on. And, of course, it's now possible for a legal man to be pregnant.)

The 2010 act explicitly calls out pregnancy and breastfeeding.

(In the case of gender identity, we are dealing with an array of different cases: people who have legally changed sex, people who have not legally changed sex, but present as a member of the opposite sex, people with an ambiguous or non-traditional gender presentation and so on. You could probably make an easier case for someone who has legally changed sex to be covered by existing sex discrimination laws than the other cases.)

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orfeo

Ship's Musical Counterpoint
# 13878

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quote:
Originally posted by Josephine:
quote:
Originally posted by orfeo:
Short version: even if you throw away all the stuff about religious freedom, the judge might possibly be right simply because there was no legal authority to make a rule about transgender people or women who had had an abortion.

Thanks, orfeo. That's interesting. It's sort of like asking whether there's standing for someone to sue, then? If you don't have standing, you can't sue, no matter what the issue is.

In this case, you're saying that the judge was saying that the administration didn't have the equivalent of standing here? That it wasn't their place to define sex in this way?

Most laws, as I understand it, are written in such a way that the rule-making authority in the executive branch has to define many of the necessary terms. So I'd expect the administration to define what was meant by sex for the purpose of the law, if the law as passed didn't include a definition. But I Am Not A Lawyer, so I could be totally off base about it.

Okay, yes, you do have to make definitions. But you can't "define yourself into power".

Congress' powers to make laws are limited by the Constitution. It doesn't get to decide for itself what the Constitution means, the Supreme Court will do that.

And the administration's powers to make laws are in turn limited by whatever Congress said.

One of the most important cases in Australian legal history had to do with an attempt to ban the Communist Party. The law relied on our power about defence, and the High Court said no, you can't just announce at the start of the law that you've decided the Communist Party is a threat to the defence of Australia and therefore every member of the party is guilty of treason. There's got to be some evidence for that.

The most famous (to lawyers) sentence in the case is this one:

quote:
A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.
Here, let's just say without going into any further detail that the administration has been authorised to make laws with respect to sex discrimination. That isn't a power to make a law about anything that the administration decides counts as sex discrimination.

Part of the judge's argument is that Congress has defined "sex discrimination" in a pretty narrow way, and that it has consciously treated "gender identity" as something quite distinct from that. He's saying that the administration can't then come along and say "well, WE think that discrimination against trans people is a kind of sex discrimination, so we can make laws about discrimination against trans people".

I'm not sure whether I agree with the judge about the first bit (whether Congress had defined sex discrimination so narrowly), but it's at least an arguable position and it's not entirely clear cut.

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orfeo

Ship's Musical Counterpoint
# 13878

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quote:
Originally posted by Leorning Cniht:
quote:
Originally posted by orfeo:

And it's at least questionable whether you can take a law about discrimination on the basis of sex and then say lower down that (1) it also applies to gender identity, and (2) it also applies to a past history that only a woman can have.

AIUI there is significant case law from before the UK Equality Act 2010 that established discrimination on grounds of pregnancy as an example of sex discrimination under the 1975 act.
This case law explicitly rules out discrimination on grounds that can be proxies for sex (you can't discriminate against pregnant people, people with ovaries, people who have had hysterectomies, and so on, because those categories can all only apply to women).

(Irrelevant sidenote: Now that changing sex is legal, a (trans-)man can have been pregnant, had a hysterectomy and so on. And, of course, it's now possible for a legal man to be pregnant.)

The 2010 act explicitly calls out pregnancy and breastfeeding.

(In the case of gender identity, we are dealing with an array of different cases: people who have legally changed sex, people who have not legally changed sex, but present as a member of the opposite sex, people with an ambiguous or non-traditional gender presentation and so on. You could probably make an easier case for someone who has legally changed sex to be covered by existing sex discrimination laws than the other cases.)

Yeah, okay, that is fairly similar to the history of the Australian Sex Discrimination Act that I've been reminding myself of.

When breastfeeding was specifically added, it was seen as making it clear that this was a case of sex discrimination, because the law already said you couldn't discriminate based on "a characteristic that appertains generally to persons of a certain sex". It wasn't an expansion of the law. Similarly with some more specific references to pregnancy.

In 2013, when sexual orientation, gender identity and intersex status were added, though, they were seen as entirely new grounds. The Sex Discrimination Act was seen as the most logical home for them (we don't have a single national anti-discrimination act, long and complicated story with constitutional quirks), but they were NOT viewed as just being types of sex discrimination.

I think I'd be pretty comfortable in saying that women who have had abortions ought to be protected under sex discrimination laws. But transgender people? That's trickier.

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Gee D
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# 13815

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quote:
Originally posted by mdijon:
quote:
Originally posted by Josephine:
So I'd expect the administration to define what was meant by sex for the purpose of the law, if the law as passed didn't include a definition. But I Am Not A Lawyer, so I could be totally off base about it.

I'm no lawyer either, but that would sound very dangerous to me. What would stop the administration defining sex in a totally off-beam way to get some other agenda into the act?

Of course not every single word can be defined in any piece of writing, I guess the test is whether that word is considered ambiguous or not?

It's theoretically possible for the legislative act to include a power for definitions to be added by non-legislative regulation but that would be extremely unusual here at least. Regulations are normally limited to technical matters. Even then, there us normally a requirement that regulations are to be presented by administration to the legislature, and that in turn the legislature may disallow them within a set period.

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Leorning Cniht
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# 17564

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quote:
Originally posted by orfeo:
But transgender people? That's trickier.

Quite.

I think we've discussed on another thread that the US department of education wrote a letter earlier this year telling schools and colleges that it expected them to behave in particular ways towards transgender students, and citing Title IX (the no sex discrimination in education law) as its authority.

The letter tells schools and colleges amongst other things to treat a transgender student according to their preferred gender identity (including choice of pronouns, presence in single-sex accommodation, sports teams, bathrooms, and so on.

It gives as the opinion of the federal government that a student's sex is defined by whatever gender the student claims, regardless of what any identity documents might say.

There is some debate about whether the department of Education has the authority to issue such a pronouncement. (Although the debate is likely to be moot, because it's hard to imagine the policy staying the same with Mike Pence in charge.)

It's clear that the Obama administration chose this route (declaring that transgender was covered by existing sex discrimination legislation) because it wouldn't have got a new law past a Republican Congress. It's far less clear that it didn't overstep.

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Golden Key
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# 1468

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Leorning Cniht--

Overstep in what way, please?

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orfeo

Ship's Musical Counterpoint
# 13878

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Overstep their legal authority.

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Gee D
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# 13815

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quote:
Originally posted by Golden Key:
Leorning Cniht--

Overstep in what way, please?

The legislation sets out various tests and parameters, binding on the administration. Does that legislation permit what the administration did in this case? That's what's being doubted.

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no prophet's flag is set so...

Proceed to see sea
# 15560

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I am quite familiar with professional regulation, not as a lawyer, but as a professional who gets consulted about how the 'standard act' template gets applied for several health professions. It is possible that the court of law will make a ruling that could be contrary to the code of conduct for a profession (which forms part of the ethics for the profession, specific to areas of practice).

Professional regulation relies on complaints to a regulatory college which has the role of "protecting the public". Certainly a court ruling would be a defense to a complaint, but a member of the public who felt discriminated against due to a medical practitioner abiding by this ruling by a court of law is still free to complain against the physician, with all the review of everything by a college even so. None of which would make me confident that any physician who decided to take the court decision on board and practice in accord with it would be safe from complaint.

Tangential example:
a health professional commented in social media about their family member's care external to employment and is currently awaiting a penalty hearing (Link to news story. My point is that professional regulating colleges have immense power. [/end tangent]

Lawsuits are quite easy and cheap to file as well. The insurance companies which carry the practice insurance for health professionals usually do not do much in the way of practice advice, but they are certainly free to. Which means that if an insurance carrier found they were paying substantial legal costs for complaints in this area (legal costs start when a complaint is laid, regardless whether it is based on anything or even proceeds), they could advise they were going to modify policies and not pay in this area or cap the amount they'd pay. Insurance companies like to end cases and settle for the lowest costs.

How all of this might play out in the situation cited in the OP is to be seen I think. I think each individual doctor would be advised to be careful.

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mdijon
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quote:
Originally posted by no prophet's flag is set so...:
It is possible that the court of law will make a ruling that could be contrary to the code of conduct for a profession (which forms part of the ethics for the profession, specific to areas of practice).

Certainly in the UK the General Medical Council guidance is more stringent and more detailed than the legal position. For instance the GMC obliges one to intervene as a good Samaritan in certain circumstances where there is no legal duty to act.

I wouldn't have characterized that as "contrary" though - rather that the professional conduct goes further than the minimum required by law and places an obligation where none might exist according to the law.

Is there anything you are aware of that is contrary in the sense of giving conflicting obligations?

[ 09. January 2017, 04:01: Message edited by: mdijon ]

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ɯqıɿou uoɿıqɯ nojidm mdijon

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