On Monday, the day before Joe Biden became president of the United States, a federal court in North Dakota defended Roman Catholic health care providers from an Obamacare mandate forcing doctors and nurses to perform experimental transgender surgeries that violate Roman Catholic convictions. The court enjoined the Department of Health and Human Services (HHS) and the Equal Employment Opportunity Commission (EEOC) from forcing these Catholic physicians to perform transgender surgery.
This injunction will prevent the Biden administration from using the HHS and the EEOC to enforce the Obamacare transgender mandate, forcing doctors to provide cross-sex hormones and sex-reassignment surgery. Some doctors have warned that even the hormones — the less invasive “treatment” — give healthy people a disease. The actual surgery often involves sterilizing a patient for life. Mandating such “treatments” would force doctors to violate the Hippocratic oath.
In Religious Sisters of Mercy v. Azar (2021), the U.S. District Court for the District of North Dakota protected the Religious Sisters of Mercy, the Sacred Heart Mercy Health Care Center, SMP Health System, and the University of Mary from an HHS mandate banning discrimination on the basis of sex. The court also protected the Catholic Benefits Association (CBA) from a similar EEOC rule.
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While the Supreme Court in Bostock v. Clayton County (2020) wrongly decided that Title VII’s prohibition of discrimination on the basis of sex applies to discrimination on the basis of sexual orientation and gender identity, the North Dakota court rightly decided that forcing Catholic doctors and nurses to perform transgender surgery violates their religious freedom.
“Now more than ever, Americans are grateful for the sacrifices of our medical professionals who serve on the front lines and use their training and expertise to serve the vulnerable,” said Luke Goodrich, senior counsel at Becket, the law firm representing the Catholic health care entiteis. “The court’s decision recognizes our medical heroes’ right to practice medicine in line with their conscience and without politically motivated interference from government bureaucrats.”
The Obamacare transgender mandate involves a 2016 HHS rule interpreting Section 1557 of the Patient Protection and Affordable Care Act (Obamacare), which prohibits certain forms of discrimination in health care. The 2016 rule applied Section 1557 to prohibit discrimination on the basis of gender identity, sex stereotyping, and wish to terminate a pregnancy. That rule also excluded some religious freedom protections.
Under Trump last year, HHS issued a new rule last year, striking abortion from Section 1557 and reinterpreting how broadly the rule applies. The 2020 rule also attempted to reverse the transgender mandate, but some courts have held that the Supreme Court’s ruling in Bostock prevented this change.
The North Dakota court ruled that HHS and EEOC would likely apply the Obamacare transgender mandate against the Catholic health providers — and that is especially true given Joe Biden’s outspoken support for transgender activism. The court did not oppose this interpretation of the rule, but it did explicitly prohibit the government from applying the mandate to the Catholic health providers.
“The Catholic healthcare entities’ refusal to perform or cover gender-transition procedures is predicated on an exercise of their religious beliefs protected by the First Amendment,” Chief Judge Peter Welte wrote in his ruling.
“Under the prevailing interpretations of Section 1557 and Title VII, refusal to perform or cover gender-transition procedures would result in the Catholic Plaintiffs losing millions of dollars in federal healthcare funding and incurring civil and criminal liability,” Welte noted. “In meticulous detail, the Catholic Plaintiffs have explained that their religious beliefs regarding human sexuality and procreation prevent them from facilitating gender transitions through either medical services or insurance coverage.”
The Religious Freedom Restoration Act sets a “strict scrutiny” test for governmental limits on fundamental rights like religious freedom. The government must demonstrate that its regulation represents “the least restrictive means” of furthering a “compelling state interest.”
Welte ruled that the Obamacare transgender mandate fails the “least restrictive means” test.
“Here, the Defendants possess many less restrictive alternatives beyond forcing the Catholic Plaintiffs to perform and cover gender-transition procedures in violation of their religious beliefs,” he argued. If the government aims to expand financial support for transgender surgery, the government could pay for the surgery itself, or provide subsidies, reimbursements, tax credits, or tax deductions. Alternately, the government could offer coverage through the Obamacare exchanges.
The government has no business forcing doctors to violate the Hippocratic Oath by performing “treatments” that harm healthy bodily function in pursuit of a false gender identity. Like evangelical Christians, Roman Catholics believe that human beings are male or female, and that removal of healthy sexual organs does damage to a person’s body.
Yet the expansion of transgender ideology into medicine is not just dangerous for Roman Catholics and other Christians. Transgender identity in medicine has caused real harm. In one particularly tragic case, a pregnant woman who identified as a man went to a hospital with abdominal pain. Because she identified as male and records listed her as male, doctors discounted the idea that she could be in labor. She did not receive the care she needed and her child died.
Research shows that there are significant risks with sex reassignment surgery, including heart conditions, increased cancer risk, and loss of bone density. Children with gender dysphoria (the condition of persistently identifying with the gender opposite one’s biological sex) are extremely unlikely to continue in that condition after puberty. Many realize they are not transgender, but instead gay or lesbian — like detransitioner Charlotte Evans, who launched a network for formerly transgender people.
Biden, however, has rushed to embrace transgender ideology, particularly in medicine. This week, he announced he would nominate a man who identifies as a woman to the second-highest position at HHS, the very agency that will be implementing Section 1557, the soon-to-be-revived Obamacare transgender mandate.
This North Dakota ruling is critical for holding the Biden administration in check, but Biden and his Democratic Congress are likely to pass the Equality Act, forcing more policies like the Obamacare transgender mandate down Americans’ throats.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.