COMMENT: The current administration has made no effort to impose conscientious rights and religious exemptions to the transgender mandate. The lawsuits therefore continue to be filed.
The Affordable Care Act, passed in 2010 under the Obama administration, was the most radical regulatory expansion in health care coverage since the inception of Medicare and Medicaid in the mid-1960s. section 1557, prohibits discrimination on the basis of sex by “any health program or activity” receiving federal financial assistance. A general anti-discrimination provision would normally be a good idea. However, when it is hijacked by ideologues of the genre, it comes up against important rights of conscience.
Obama’s Department of Health and Human Services (HHS) noted in 2016, that the prohibition of “discrimination based on sex” in section 1557 includes discrimination based on gender identity and gender stereotypes. This clarification may seem trivial, but its consequences are shocking: Many doctors are forced to prescribe dangerous drugs and perform elective gender transition procedures, including cosmetic surgeries such as double mastectomies, phalloplasties, and orchiectomies (removal of the testes). The mandate covers all patients, even children. It doesn’t matter if a doctor believes that it is harmful to the patient. Virtually all private insurance companies and many employers are required to cover gender transition proceedings or face legal action, regardless of religious or moral objections.
Bishop Michael Burbidge of the Diocese of Arlington, Virginia recently published a long pastoral letter tackle gender ideology. This immensely compassionate document addressed to Catholics says that “the claim to be ‘transgender’ or the desire to seek a ‘transition’ is based on a mistaken view of the human person, rejects the body as a gift from God and leads to serious damage. To assert someone in an identity at odds with biological sex… is to mislead that person. In the case of children with gender dysphoria, Bishop Burbidge’s letter is unequivocal:
“In no case should parents seek ‘gender affirming’ therapy for their children, as it is fundamentally incompatible with the truth of the human person. … They should not seek, encourage or endorse medical advice or procedures which would confirm misunderstandings of human sexuality and identity, or lead to (often irreversible) bodily mutilation.
This statement of Catholic teaching is consistent with important findings – rarely mentioned in secular media – that most children with gender dysphoria grow up not to be transgender.
Others may disagree. But for many providers and healthcare professionals, the prospect of complying with the demands of the “transgender mandate” conflicts with their religious, moral and medical principles. Their only way to oppose is to go to court.
A lawsuit challenging the transgender mandate has been brought by the Franciscan Alliance Catholic Hospital Network, the religious health care providers of the Christian Medical & Dental Association. A tribunal ruled that the HHS did not have the power to prohibit discrimination based on gender identity and likely violated the Restoration of Religious Freedom Act (RFRA), federal law generally prohibiting the federal government from influencing the religious exercise. The court later order the federal government to revise the mandate.
The Trump administration, following the court order, deleted language on gender identity, claiming that the previous administration had “exceeded its authority” and “adopted erroneous and inconsistent interpretations of civil rights law, confused and imposed undue and unnecessary costs”.
The revised rule was immediately attacked. Two separate pursuits – one in new York and one in the District of Colombia – were submitted by transgender people and a coalition of healthcare providers serving transgender patients. Both courts ruled in favor of the plaintiffs, reinstating Obama’s transgender mandate.
And where is the second Catholic President of the United States on the transgender mandate? You can probably guess. On the day of his inauguration, President Joe Biden issued a Executive Decree direction all federal agencies to classify discrimination based on gender identity and sexual orientation as forms of sex discrimination. A few months later, Biden’s HHS announced it would interpret and apply the prohibitions on discrimination based on gender identity and sexual orientation.
The agency graciously added that its enforcement activity would comply with the RFRA and court orders related to Section 1557, but did not explain in detail how that would happen.
Biden’s administration has defended the transgender mandate in court. Religious Sisters of Mercy c. Azar was contributed by an order of Catholic nuns, a Catholic university and Catholic health care organizations. Their case was consolidated with that of the Catholic Benefits Association, an association of diocesan and religious affiliates and private business owners. A district court judge recently stopped the application of the transgender warrant against these groups and, in the case of the Catholic Benefits Association, their current and future members. The Biden administration appealed the court-ordered exemption to the 8th Circuit Court of Appeals.
Permanent relief for the complainants in Franciscan Alliance came recently, too. District court ruled that Biden’s interpretation of section 1557 “forces Christian plaintiffs to face civil penalties or perform gender transition procedures and abortions contrary to their religious beliefs – irreparable harm par excellence “. The Biden administration did not file a notice of appeal with the 5th Circuit Court of Appeal. Not yet.
The current administration has made no effort to carve out rights of conscience and religious exemptions from the transgender mandate. The lawsuits therefore continue to be filed. Last month, the Catholic Medical Association and the American College of Pediatricians took legal action. Their complaint affirms:
“Doctors are now faced with an untenable choice: either to act against their medical judgment and their core beliefs by performing controversial and often medically dangerous gender transition interventions, or to succumb to huge financial penalties, lose their participation in Medicaid and to other federal funding, and, as a practical matter, losing the ability to practice medicine in virtually any setting.
They argue that Biden’s transgender tenure violates the RFRA and the U.S. Constitution. They too want to avoid having to violate their conscience by complying with the transgender mandate and are asking the court to issue a permanent nationwide injunction.
Gender ideologues have a stronghold in the Biden administration. Healthcare providers with religious, moral and medical objections to Biden’s transgender mandate are pushing back to protect conscientious rights. Their legal victories may be the only reality check on this latest progressive ideology.
Andrea Picciotti-Bayer, director of Conscience project, is the host of the Register podcastQuestions of religious freedom.