A federal judge in Texas halted enforcement of federal rules under the Affordable Care Act (also known as Obamacare) which would have forced doctors to perform — and employers to cover — gender transition surgeries. The judge blocked the rule on Saturday, one day before it was to go into effect in the new year.
The states of Kentucky, Kansas, Nebraska, Texas, and Wisconsin joined with religiously affiliated medical groups (the Franciscan Alliance, Specialty Physicians of Illinois, and the Christian Medical and Dental Associations) to sue the Obama administration over the rules in August. On Saturday, U.S. District Judge Reed O’Connor granted the injunction, preventing the rules from going into effect on New Year’s Day.
O’Connor said the plaintiffs had “presented concrete evidence to support their fears that they will be subject to enforcement under the Rule,” BuzzFeed reported. “Plaintiffs claim the Rule’s interpretation of sex discrimination pressures doctors to deliver healthcare in a manner that violates their religious freedom and thwarts their independent medical judgment and will require burdensome changes to their health insurance plans on January 1, 2017,” O’Connor explained.
According to rules finalized in May, the Department of Health and Human Services (HHS) interprets Section 1557 of the Affordable Care Act as protecting transgender people’s chosen identity.
Rather than defining the term “sex” in federal law to refer to biological sex — male and female — the Obama administration has taken a broader interpretation of the term to include those who identify as the opposite sex. Critics point out that when laws prohibiting discrimination on the basis of sex were passed, they did not refer to the more nebulous “gender identity.”
Nevertheless, the HHS website explicitly endorses transgender ideology on the issue of healthcare:
Explicit categorical exclusions in coverage for all health care services related to gender transition are facially discriminatory. Other exclusions for gender transition care will be evaluated on a case-by-case basis.
In other words, it does not matter if a doctor or health care institution accepts the scientific stance that transgender surgery involves harming healthy sexual organs, and therefore is not health care. Denying transgender surgery in principle is “facially discriminatory,” or discriminatory on its face.
While many religious groups were involved in the lawsuit, the opposition to transgenderism is not just religious. A study from Johns Hopkins University in August discovered that there is no concrete evidence suggesting people are born gay or transgender. Also, Johns Hopkins researchers warned against drastic gender changes among children, as early transgender identities may fade with age.
Indeed, many have spoken out about how transgender surgery and hormones have damaged their mental and physical well-being. Two women in particular, who thought they were men and underwent “gender affirming” “treatment,” took to YouTube to lament the damage their transgenderism caused.
Along these lines, the five-state lawsuit alleges that the HHS rule affects states’ efforts to protect standard of care, authority over medical facilities, and efforts to comply with other federal laws that they allege conflict with the new rule. As for the medical groups, the rule infringes upon their “medical, ethical and religious concerns” due to their “infusion of faith into healthcare.”
Following this argument, the lawsuit claims the new rule violated the Administrative Procedure Act because the rule is “not in accordance with law,” is “in excess of statutory jurisdiction, authority, or limitations,” and is “arbitrary, capricious, and an abuse of discretion.” Specifically, the rule violates the Spending Clause of the U.S. Constitution, the First, Fifth, Tenth, and Fourteenth Amendments, and the Religious Freedom Restoration Act.
O’Connor, the judge who issued the stay, also issued a preliminary injunction in August preventing the administration from implementing its efforts to ensure transgender people would be able to use the restroom or changing room of their choice, under a similar interpretation of “sex” in Title IX of the Education Amendments of 1972. While transgender activists claim this is about ensuring equal treatment, this policy has allowed voyeurs to sneak into women’s restrooms at Target stores.
When O’Connor issued the stay, his action did not just help the five states behind this particular lawsuit. Last month, the Catholic Benefits Association (CBA) and the Catholic Diocese of Fargo, North Dakota filed a lawsuit to challenge the same rule.
In the press release announcing the lawsuit, CBA cited Pope Francis’ teachings on abortion and transgenderism, explaining why Roman Catholics cannot accept transgender ideology. Any “gender theory” stating that gender is mutable or fluid “does not recognize the order of creation,” CBA quoted Francis, who spoke those words in 2015. In October of last year, the pontiff denounced transgenderism as “a global war against the family.”
While transgender activists are right to demand that doctors and hospitals not turn patients away because of their gender identity, the Catholic doctors and businesses represented by CBA are not challenging this part of the rule. “Catholic hospitals provide compassionate care to everyone, regardless of status,” CBA CEO Douglas Wilson explained in a statement. “Patients experiencing gender dysphoria deserve no less.”
The real problem rears its head when the HHS mandates that doctors and health coverage treat transgender surgery as a good or necessary medical practice. “The prime ethic of any healthcare provider is to do no harm,” Wilson noted, but he argued that “these regulations do the opposite.” By forcing doctors and employers to perform or cover transgender surgery as “health care,” the rule forces them to violate their consciences — and do physical harm to the natural sexual organs involved.
Christians in general oppose transgenderism because the idea of a man born in a woman’s body or a woman born in a man’s body is, on its face, a denial of Genesis 1, when God created humans male and female and pronounced His creation “very good.”
While there is room in the doctrine of the Fall for Christians to acknowledge that sin has perverted human nature and therefore allowed people to develop misconceptions of gender and the desire to change genders, the right pastoral response is to help people recognize the good of their birth gender, rather than to encourage amputation of healthy sex organs in an attempt to change their nature.
Especially on an issue which is new and developing, and very controversial among the scientific community, the Obama administration should not force one view on doctors and religious organizations who might very well disagree. O’Connor’s stay is helpful, as it might provide time for Americans to discuss these issues and arrive at some understanding of one another, as opposed to a top-down fiat forcing one particular view with no room for disagreement.
With any luck, the Trump administration might at least carve out religious exemptions for such rules. Transgender people should not be denied health care by any means, but mandating transgender surgery is a step too far. Let’s hope the next administration can understand that.
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