Feds take linguistic fiat to hospitals, homeless shelters

In the waning months of his presidency, Barack Obama is calling into question what it means to be a man or a woman.

His administration first went after public schools, ordering them to allow students to use restrooms and locker rooms based on gender identity, rather than biology. Now, policy changes adopted by the Department of Health and Human Services (HHS) and proposed by the Department of Housing and Urban Development (HUD) put those who care for the sick and indigent in the cross-hairs of federal regulators charged with promulgating the Obama view of fluid sexuality.

But faith-based groups are fighting back, filing suit to defend the biblical view of gender and their constitutionally protected right to hold it. As with the similar battle over marriage, the U.S. Supreme Court will get the final word on whether what God created and called “very good” still applies to American society.

HUD Director Julian Castro and HHS Director Sylvia Burwell are the latest Obama appointees to bypass the legislative process and create their own regulations granting protected class status to transgender persons, a designation that has never passed congressional muster.

Roger Severino, director of the DeVos Center for Religion and Civil Society at the Heritage Foundation, worked for seven years in the Justice Department’s Office of Civil Rights. Regulatory changes in recent years prove “there is clearly a concerted effort” to alter the law by linguistic fiat, he said.

By his own executive actions, Obama set the standard for crafting law without Congress. Following his lead, federal regulators have effectively implemented sexual orientation and gender identity protections by redefining one word—sex—and making it mean something other than biologically male and female.

The HHS policy, implemented in May, forces doctors and hospitals to provide controversial sex reassignment therapy and surgery or face lawsuits and the loss of billions of dollars in Medicaid and Medicare funding.

“Ultimately, this case boils down to a very simple question of statutory interpretation,” attorneys wrote in a lawsuit filed to halt the policy’s implementation. “Can HHS redefine the term ‘sex’ to thwart decades of settled precedent and impose massive new obligations on healthcare professionals and sovereign states?”

The Franciscan Alliance, a network of religious hospitals, along with two other medical associations and five states, filed the suit Aug. 23 in the U.S. District Court for the Northern District of Texas, Wichita Falls Division. A judge in that same court issued a temporary injunction Monday against Obama’s Title IX directive to public schools.

Doctors who refuse to comply with the HHS regulation could find themselves “unemployable” by hospitals because their lack of compliance makes them a legal liability, attorneys argue. The measure also appears to require doctors to perform abortions by expanding the definition of “sex” to “include ‘gender identity,’ ‘sex stereotypes,’ and ‘termination of pregnancy,’ among other things,” the suit notes.

“HHS has been cagey about this,” Lori Windham, an attorney with the Becket Fund, told me. “They have not exactly spelled out what [termination of pregnancy] means.”

The Becket Fund is one of the legal groups representing the plaintiffs in Franciscan Alliance v. Burwell. HHS has 30 days to respond to the suit.

Regulators deliberately excluded religious exemptions from the HHS regulation. The remedy for doctors and hospitals that refuse puberty-blocking hormone treatment for children or removal of a woman’s healthy uterus as part of “transitioning” into a man would be forced to sue the government.

Greg Bonnen, a Texas state representative and neurosurgeon, said the regulation violates the personal care autonomy of every physician. According to one analysis, 900,000 doctors currently work in the United States.

As a Christian, Bonnen finds the regulations especially onerous but said regardless of a person’s religious beliefs, everyone “should be very alarmed when the government tells doctors what to do.”

The HUD proposal, which has not been adopted yet, requires shelter providers to honor the accommodation request of a transgender person regardless of his or her biological sex. Failure to comply is an act of discrimination punishable by the loss of federal funding.

But it is the HUD regulations that John Ashmen, president of the Association of Gospel Rescue Missions (AGRM), finds discriminatory. Throughout the policy, regulators give deference to the transgender person.

“The only accommodation for health or safety concerns may be made when a transgender person requests it,” Ashmen wrote in a letter to HHS in January.

The majority of AGRM shelters do not accept federal funding, so the threat of financial loss does not apply. Still, Ashmen said, the rule disregards the need for all people seeking emergency shelter to feel safe. HUD forbids facility operators from inquiring about a person’s biological sex, which could allow a man to gain access to a women’s shelter. That could prove traumatic for women seeking refuge from abusive relationships.

Ashmen told me some matters of operation should be left to facility directors, who best know their clientele. But HUD disagreed, telling Ashmen and other directors in a meeting earlier this year that they need to teach the rest of their guests to “accept the transgender person.”

Ashmen was incredulous. He told HUD that up to one-third of his clients are mentally ill, some are addicted to drugs or coming off a high, and others “act out” emotionally. Most arrive as the shelters are closing for the evening.

“So you’re saying we need to train those people?” Ashmen recounted.

But the biggest threat against faith-based operations is not the federal government but public opinion, Ashmen said. Directors have reported organizations sending transgender people to shelters to test the system. He fears journalists will do the same and publish scathing articles about the shelters’ biblical views of what it means to be a man or a woman.

While the government focuses on perceived discrimination, people who come to AGRM shelters find a different reality.

“They have come to a safe place where they will be cared for regardless of what they believe about themselves or God,” Ashmen said.