A rule issued by the U.S. Department of Health and Human Services (HHS) requiring physicians and hospitals to participate in gender transition services contains no religious exemption. But a lawyer for the government hinted on Wednesday that religious practitioners might be able to obtain an exemption under the Religious Freedom Restoration Act (RFRA).
That’s not enough assurance for religious entities who are seeking a permanent injunction against the rule.
The case began in 2016, after the Obama administration issued a rule requiring doctors to provide gender-transition treatment to patients. The Sisters of Mercy, the University of Mary, and SMP Health System, joined by the State of North Dakota, sued HHS in November 2016. Two different federal courts ruled that the HHS rule is an unlawful overreach by a federal agency and a likely violation of religious liberty.
The Trump administration in 2020 altered the rule to comply with RFRA and court rulings, but that move was blocked by other courts.
Although a federal court in North Dakota struck down the mandate last January, HHS announced that the Office for Civil Rights would interpret and enforce the 2010 Affordable Care Act’s Section 1557 and Title IX's protections against discrimination based on sex to include sexual orientation and gender identity.
On Wednesday, Luke Goodrich, vice president and senior counsel at Becket, a religious liberty law firm, argued before the U.S. Court of Appeals for the Eighth Circuit in St. Louis that the “gender transition mandate” violates religious freedom. The plaintiffs in Sisters of Mercy v Becerra argue that the mandate forces doctors to ignore their medical judgment and perform gender-transition procedures, including on children, even if those procedures could cause permanent harm.
Both federal courts considering the mandate "have struck it down as bad for patients, bad for doctors, and bad for religious liberty,” Goodrich said. “It is past time for this Administration to stop forcing doctors to go against conscience and sound medical judgment and to start respecting their Hippocratic Oath to ‘do no harm.’”
Seeking protection
The Biden Administration is appealing the decision of the lower courts that struck down the mandate.
The government, represented on Wednesday by attorney Ashley Chong, contends that the plaintiffs’ case is a pre-enforcement litigation and therefore not ripe for judicial review. Goodrich argued that the plaintiffs have a right to protect themselves from potential enforcement. He pointed out that HHS stated in its 2016 rule that “categorical refusal to perform or insure gender transitions, which is what our clients do, is unlawful on its face.”
Just months ago, he said, HHS announced that it will enforce Section 1557 of the Affordable Care Act to require almost every doctor and hospital in the country to perform and insure gender-transition procedures or else be liable for “sex” discrimination.
“HHS already received a complaint against a Catholic hospital; they already told a complainant that ‘We will investigate your complaint against this Catholic hospital,’” Goodrich warned. “They had already started an investigation against the state of Texas for the very same policies that our clients have adopted.”
In her rebuttal, Chong admitted that HHS indicated it would initiate an investigation against a provider “for denying transition services.”
“But these administrative investigations are very different from bringing enforcement actions in court,” Chong said. “During the administrative investigation, that’s an opportunity for the religious entity to raise RFRA for the government to realize that it’s a religious entity and to decide not to bring an enforcement action.”
In the case that Goodrich cited, Chong said, the government did not bring an enforcement action.
Nevertheless, Goodrich said that in the 2016 rule, HHS promised “robust” enforcement, and in its updated 2020 rule it promised to “vigorously” enforce Section 1557.
But, Chong added in response to a judge’s question, the government is “not in a position to disavow any future enforcement. The agencies are still in the process of considering these complicated issues.”
"Roll the dice"
Goodrich was not persuaded. “HHS is basically telling these plaintiffs, ‘Go ahead. Roll the dice. Wait until a patient sues you, files a complaint. Wait until we bring an enforcement action. Maybe you’ll win, maybe you won’t,’” he said.
The religious doctors and hospitals in the case say they will serve all patients regardless of their sex or gender identity, but to force them to perform gender reassignment surgery or provide hormonal treatments or counseling for gender transitions violates their religious freedom.
They cite research saying that certain gender-transition procedures can be deeply harmful to patients, and that up to 94% of children with gender dysphoria (77% to 94% in one set of studies and 73% to 88% in another) will grow out of their dysphoria naturally and live healthy lives without the need for surgery or lifelong hormone regimens.
Becket points out that the government has not even required its own military doctors to perform gender transition procedures. It also has not required coverage of gender transition procedures in Medicare or Medicaid because HHS’s medical experts who oversee those programs do not believe research demonstrates that gender reassignment surgery improves health outcomes.
