Court shields Catholic health providers from transgender mandates

A federal judge in North Dakota on Tuesday ruled in favor of Catholic healthcare providers who challenged Obama-era requirements that they offer gender transition procedures and cover them under their insurance plans. The decision offers hope that religious organizations can find shelter from transgender mandates under the 1993 federal Religious Freedom and Restoration Act (RFRA). But a new order from the Biden administration complicates the picture.

In June 2020, some conservative justices joined the liberal wing of the Supreme Court to rule in the controversial Bostock v. Clayton County decision that restrictions against employment discrimination based on sex covered sexual orientation and gender identity. Since then, judges have weighed how to interpret the ruling. In some cases, lower courts have already moved to apply the expanded definition to arenas other than employment. Others, like in the North Dakota case, have shielded religious organizations from transgender mandates.

After religious healthcare providers challenged the 2016 transgender mandate, a Texas federal judge struck down the regulation in 2019. A coalition of Catholic healthcare providers also sued against the rule, spurring the North Dakota judge to set it aside in the separate ruling last week. Both judges based their decisions on the RFRA, which requires the federal government to have a compelling interest to impose on religious freedom, and to do so in the least restrictive way possible.

But President Joe Biden’s new executive order attempts to circumnavigate the courts and apply the broader definition of sex to almost all areas of American life. The order bans discrimination on the basis of sexual orientation or gender identity and requires the heads of executive agencies to review existing regulations, policies, and actions to bring them into compliance with the mandate.

It could have broad ramifications, Alliance Defending Freedom counsel Christiana Holcomb said, including on school bathrooms, sports teams, and locker rooms. Homeless shelters may not be able to exclude biological males from sharing bathrooms and sleeping areas. It could force safe houses for abused women to include biological men who identify as women. She said it could also require healthcare plans to pay for gender-transition procedures and doctors and hospitals to perform them.

But Holcomb said there is still a great deal of common sense in the American people, noting a 2020 study showing well over two-thirds of the American public agree it’s not fair to allow biological males to simply identify as female and compete in the women’s category. She also pointed to RFRA and Supreme Court Rulings protecting the autonomy of religious schools as reasons for hope: “All is not lost.”