Strike two for transgender care mandate

A unanimous appeals court panel on Friday said religious medical facilities and healthcare workers should not have to participate in controversial transgender treatments that violate their beliefs.

In a 40-page opinion, three judges from the 8th U.S. Circuit Court of Appeals sided with several Catholic organizations by permanently blocking rules issued by the U.S. Department of Health and Human Services (HHS) and the Equal Employment Opportunity Commission (EEOC). Judge Lavenski R. Smith wrote that the government’s interpretation of Section 1557 of the Affordable Care Act—known as Obamacare—ran afoul of the protections afforded by a 1993 law, the Religious Freedom Restoration Act. RFRA requires the government to demonstrate a compelling interest and use the least restrictive means when its action substantially burdens religion.

Government attorneys attempted to sidestep the issue, arguing that the Sisters of Mercy and other religious groups lacked standing because the agencies had not yet taken action against them. But the court agreed with challengers’ attorneys, who argued that the groups faced a credible threat that HHS or EEOC would penalize them for violating Section 1557 or an EEOC provision requiring employers to include transgender care in their employee health plans.

Friday’s ruling comes just months after a unanimous decision in August by the 5th U.S. Circuit Court of Appeals, which also blocked the application of the transgender mandate to Christian doctors and hospitals. In that case, the Becket Fund for Religious Liberty represented the Franciscan Alliance, a Catholic healthcare network, and nearly 19,000 healthcare professionals who first sued HHS over the mandate in 2016. That ruling became final on Nov. 25, after the Biden administration let a deadline for filing an appeal to the Supreme Court pass. The government has 60 days to decide whether to appeal Friday’s ruling to the Supreme Court.

Becket Fund counsel Luke Goodrich lauded the ruling while criticizing a government mandate that would force doctors to violate their consciences by doing surgeries that can cause irreversible damage to a healthy body. “Today’s victory sets an important precedent that religious healthcare professionals are free to practice medicine in accordance with their consciences and experienced professional judgment,” said Goodrich. “The government’s attempt to force doctors to go against their consciences was bad for patients, bad for doctors, and bad for religious liberty.”

Friday’s ruling was the latest loss for the government in a case first filed in federal court in November 2016 by Becket on behalf of the Sisters of Mercy, the University of Mary, and the SMP Health System. The state of North Dakota also joined the suit, siding with the religious organizations.

“We now have two different federal courts of appeal saying the Biden administration is permanently blocked from forcing religious doctors and hospitals” to perform gender transitions in violation of their conscience,” Goodrich said. He added the government likely would not appeal, suggesting it could abandon the ill-fated rule change or at least create an exemption for hospitals and healthcare workers with religious or moral objections.

Many faith groups have condemned the procedures mandated. They not only criticize them on Biblical and moral grounds but also argue that there’s no medical case for them. After the HHS rule was opened for comment in July, the United States Conference of Catholic Bishops condemned it.

“[The] proposed regulations threaten our ability to carry out our healing ministries and others’ to practice medicine,” the bishops wrote. “They mandate healthcare workers to perform life-altering surgeries to remove perfectly healthy body parts. … This is a violation of religious freedom and bad medicine.”