Judge rules government cannot mandate sex change coverage

Doctors and healthcare providers do not have to break with their consciences to perform sex change operations under a preliminary injunction against an Obama administration mandate.

U.S. District Judge Reed O’Connor of Texas ruled in favor of eight states and three Christian healthcare groups Saturday by blocking a Department of Health and Human Services (HHS) rule set to go into effect Jan. 1.

The rule revised section 1557 of Obamacare to place gender identity under the same nondiscrimination protections as biological sex. The HHS Office for Civil Rights “recognizes that an individual’s gender identity involves the interrelationship between an individual’s biology, gender, internal sense of self, and gender expression related to that perception,” the mandate states.

Despite complaints that the rule did not include exemptions for religious groups, as found in Title IX of the Education Amendments of 1972, HHS wrote that every insurance company or healthcare provider receiving federal funds, such as payments from Medicare or Medicaid, must provide, refer for, or cover “gender transition services.”

White House spokeswoman Katie Hill called the decision on Saturday a “setback, but hopefully a temporary one,” according to Reuters.

But Christian groups battling in the mandate in court saw the injunction as a victory.

The Becket Fund, a nonprofit law firm representing the Catholic hospital network Franciscan Alliance and the Christian Medical and Dental Associations in a lawsuit it filed in August, applauded the decision.

“We were thrilled to receive the news on Saturday that the court has protected these medical professionals from having to make decisions that were contrary to their best judgment for patients,” Becket Fund’s senior counsel Lori Windham told me.

The injunction bolstered the organization’s confidence that it and eight other states that joined the lawsuit would win against the federal rule.

“It shows that the government has really overstepped its bounds by trying to interfere in the private decisions made by doctors and their patients,” Windham said.

O’Connor, in his 46-page opinion, cited his 2016 ruling in Texas v. United States that challenged a law requiring schools to honor a student’s gender identity for bathroom use: “The meaning of sex in Title IX unambiguously refers to ‘the biological and anatomical differences between male and female students as determined at their birth.’”

O’Connor ruled HHS not only violated the Administrative Procedure Act, a federal law about rule-making, but also the Religious Freedom Restoration Act of 1993, which forbids a federal or state governing body from burdening a person’s religious freedom.

“If Congress wished to assign that decision to HHS, it surely would have done so expressly,” O’Connor wrote. “HHS had no authority to interpret such a significant policy decision.”

Arizona, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, and Wisconsin have sued HHS along with Texas.

Another lawsuit, filed in late December by the Catholic Benefits Association, challenges not only the Affordable Care Act’s interpretation of Title IX but also Title VII of the Civil Rights Act of 1964.

The group hopes to halt the redefining of “sex” in both places to retain protections for Christian healthcare workers and Christian employers outside the medical field.

Saturday’s ruling bodes well for the Catholic Benefits Association’s lawsuit, the group’s general counsel, Martin Nussbaum, told me. It set a strong precedent regarding the changes in section 1557 of Obamacare and “a very helpful analogous precedent with regards to Title VII,” Nussbaum said.

Agreeing with O’Connor that HHS had acted outside its bounds, Windham said her organization would continue to watch for similar threats to religious liberty: “We want to ensure that religious healthcare professionals can continue to serve their communities and follow their faith.”