States, doctors challenge federal transgender mandate

Seven states and a medical organization filed a federal lawsuit against a new Biden administration rule that would force medical professionals and insurance providers to perform or pay for transgender interventions.

Republican-led states Missouri, Arkansas, Idaho, Iowa, North Dakota, South Dakota, Utah, and the conservative medical professional organization American College of Pediatricians filed the suit Wednesday against multiple agencies in the U.S. District Court for the Eastern District of Missouri.

The new rule falls under Section 1557 of the Affordable Care Act and obliges doctors to “perform, refer for, or affirm harmful gender-transition procedures and forces states to pay for these dangerous procedures in state health plans,” according to the lawsuit. “This radical mandate will hurt children,” the suit states.

The U.S. Department of Health and Human Services released the rule in May, and it went into effect last week. The measure will affect states even if they have laws protecting minors or others from medical attempts to change their sex traits.

The department aims to use the rule to bar discrimination on the basis of “gender identity,” according to the lawsuit. It prohibits medical providers from refusing to perform transgender procedures, requires insurance companies to cover them, and demands that doctors refer to patients by their preferred pronouns. Doctors who don’t comply could be excluded from federally funded healthcare programs like Medicare, Medicaid, and the Children’s Health Insurance Program, according to the lawsuit.

In May, Xavier Becerra, secretary of the Department of Health and Human Services, testified at a House committee hearing that every healthcare entity must implement the rule or lose federal funding. Becerra also called the rule “a giant step forward.”

This rule harms children, violates free speech rights, and undermines Congress’ authority, said Julie Marie Blake, senior counsel at Alliance Defending Freedom, which represents the plaintiffs.

“Doctors should not be compelled to harm children,” Blake said. “[The administration is] trying to force doctors across the country to perform so-called ‘gender-transition’ procedures on children. And worse, it’s seeking to make states … pay for all these procedures.”

Even if states have laws in place to protect children from such interventions, the Department of Health and Human Service is forcing states to act otherwise with its “radical mandate,” she said. Currently, 25 states have such laws, and HHS doesn’t have the authority to override them, she said.

Blake added that Congress hasn’t authorized the rule. Instead, the U.S. Department of Health and Human Services justified the measure by claiming it merely extends the protections against sex discrimination in the Affordable Care Act and Title IX to apply to gender identity. This is an illegal extension of that language, Blake said.

Additionally, the rule violates free speech rights by banning doctors from advising against transgender interventions and requiring them to use patients' preferred pronouns, Blake said.

“The rule is an overbroad restriction on speech, and it sweeps within its ambit a substantial amount of First Amendment protected speech and expression,” the lawsuit states.

This is the third lawsuit ADF has backed against the HHS transgender treatment rule. In May, ADF filed two similar cases—one representing the state of Florida and Catholic Medical Association and the other McComb Children’s Clinic in Mississippi.

In the first case, a district court in Florida ruled in favor of just the state earlier this month. The court found that extending the healthcare rule to include discrimination against gender identity is illegal, noting that the new rule requires significant alteration to Florida’s healthcare system. The judge declared that halting the rule is in the public’s best interest.

The court’s decision has stopped the enforcement of the regulation for Florida, but not for the Catholic Medical Association. The Mississippi court has not yet released a ruling in the McComb Children’s Clinic case.

Other groups are also fighting the mandate. For example, in Mississippi, a federal district judge temporarily halted several aspects of the healthcare rule on July 3. The judge ruled that insurers and medical professionals can decline to provide transgender hormone treatments or surgeries despite the mandate insisting otherwise. The judge also said that the U.S. Department of Health and Human Services’ extension of sex discrimination language to include gender identity was unlawful.

Blake said that she isn’t surprised to see multiple lawsuits challenging the Biden administration’s rule. “The scope of this rule is simply breathtaking,” she said. “It seeks to reach nationwide to coerce every virtually every healthcare provider in America to comply, because virtually every healthcare provider takes federal healthcare funding.”