Federal court rules against ‘transgender mandate’

Matt Hadro   By Matt Hadro for CNA

Juanje Garrido/Shutterstock

Washington D.C., Aug 10, 2021 / 13:01 pm (CNA).

A federal district court judge on Aug. 2 ruled in favor of Catholic and Christian health care organizations fighting the “transgender mandate,” a federal requirement that doctors and insurers provide or cover gender-transitioning procedures upon referral.

The Biden administration in May had revived the “transgender mandate,” stating that a statutory federal ban on sex discrimination in health care also prohibited discrimination on the basis of pregnancy, sexual orientation, and gender identity. The administration’s rule prohibited the denial of some procedures to patients, such as abortions and gender-transition surgeries.

Judge Reed O’Connor of the North Texas district court on Monday granted permanent relief from the mandate for the Catholic hospital network Franciscan Alliance and the Christian Medical & Dental Associations (CMDA), a group of more than 20,000 health care professionals; the organizations had challenged the original 2016 transgender mandate in court, arguing that doctors should not be forced to provide gender-transitioning procedures against their beliefs.

The Biden administration’s mandate puts “substantial pressure on Christian Plaintiffs, in the form of fines and civil liability, to perform and provide insurance coverage for gender-transition procedures and abortions,” Judge O’Connor stated. He agreed with the plaintiffs that the burden presented “an irreparable harm.”

In his “permanent injunction,” Judge O’Connor ruled that the administration cannot enforce its mandate on the plaintiffs and their partners, including insurers or third-party administrators of their health plans.

Luke Goodrich, VP and senior counsel at Becket, which represents the plaintiffs in the case, praised the ruling on Monday.

“Today’s ruling protects patients, aligns with current medical research, and ensures doctors aren’t forced to violate their religious beliefs and medical judgment–a victory for common-sense, conscience, and sound medicine,” Goodrich stated on Twitter.

Franciscan Alliance and CMDA “gladly serve ALL patients regardless of their sex or gender identity,” Goodrich stated. “They provide top-notch care to transgender patients for everything from cancer to the common cold. They also provide millions of dollars in free and low-cost care to the elderly, poor, and underserved.”

However, he added, “[t]he doctors and hospitals in these cases argued that they shouldn’t be forced to perform procedures that violate their consciences and could harm their patients. The federal court today agreed.”

The 2010 Affordable Care Act had prohibited discrimination in health care on the basis of sex, in Section 1557.

In 2016, the Obama administration issued a rule based on this provision, interpreting it to also prohibit health care discrimination on the basis of sexual orientation and gender identity, as well as “pregnancy” discrimination. The rule required doctors and many private insurers to perform and cover gender-transitioning procedures upon the referral of a mental health professional.

The Franciscan Alliance and CMDA challenged the mandate, along with several states.

Judge O’Connor in 2016 granted the Franciscan Alliance and CMDA temporary relief from the mandate, ruling that it likely violated their religious freedom protections in federal law. Later, the court allowed the case to be re-opened, but still declined to grant the plaintiffs a permanent injunction from the rule.

In a separate case, other plaintiffs challenging the mandate also received a preliminary injunction in December 2016.

In 2020, the Trump administration issued a rule allowing doctors to opt-out of providing the procedures. The administration interpreted Sec. 1557 to only prohibit sex-based discrimination in health care, not including protections for gender-transitioning procedures or abortions. Two federal courts in 2020 placed an injunction on portions of the administration’s rule.

Shortly following that rule, the Supreme Court issued a ruling that interpreted “sex” in federal civil rights law to include sexual orientation and gender identity. In Bostock v. Clayton County, the court ruled that employers could not fire people based on their sexual orientation or self-determined gender identity.

President Joe Biden in January issued a sweeping executive order stating his administration’s policy of applying that ruling to various federal agencies and programs, interpreting “sex discrimination” to include discrimination on the basis of sexual orientation and gender identity.

In April, the U.S. Fifth Circuit Court of Appeals sent the case of Franciscan Alliance back to the lower courts, instructing the North Texas district court to decide whether the mandate could be permanently stopped. The Biden administration appealed to the courts to keep the mandate in place.

In May, the Department of Health and Human Services (HHS) – led by Xavier Becerra, a Catholic – essentially reinstated the transgender mandate, interpreting sex discrimination in health care to include discrimination on the basis of sexual orientation and gender identity.

Then on Monday Judge O’Connor implied that the Biden administration’s rule was “materially indistinguishable from the 2016 Rule” that he granted plaintiffs a preliminary injunction from. He proceeded to grant a permanent injunction from the rule.

“The Court agrees and concludes that enforcement of the 2021 Interpretation forces Christian Plaintiffs to face civil penalties or to perform gender-transition procedures and abortions contrary to their religious beliefs—a quintessential irreparable injury,” he said, granting the request for a permanent injunction.


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