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Explainer: Federal court blocks controversial transgender mandate for healthcare professionals

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August 11, 2021

This week, a federal court in Texas ruled that it is unlawful to force healthcare professionals to violate their consciences for gender transition procedures. This is good news for children, families, and Christians who want to continue serving in roles without conforming to “the latest fashionable ‘right side of history’ cause.”

What is the history of this issue?

In 2016, as a part of the implementation of Section 1557 of the Patient Protection and Affordable Care Act (ACA), the Obama Administration’s Department of Health & Human Services (HHS) promulgated a rule requiring medical providers to perform and insure abortions and gender-transition procedures or face penalties. Section 1557 of the ACA is the nondiscrimination provision of the ACA, and the scope was broadened by redefining “sex” to include sexual orientation and gender identity.

The regulations came to be called the transgender mandate, because it would require physicians to provide gender reassignment surgeries and administer hormones to facilitate gender reassignment, including to children, even if the doctor believed the procedure would be harmful.

In response to the issuance of these new regulations, two lawsuits were filed on behalf of multiple religious organizations, healthcare providers, and several states. The ERLC supported the move to challenge the mandate. Later that year, the District Court held in Franciscan Alliance v. Burwell that HHS erroneously interpreted “sex” under Title IX — that the final rule was arbitrary and capricious when Title IX “unambiguously refers to the biological and anatomical differences between male and female students as determined at their birth.” The District Court further ruled that the Final Rule’s failure to include religious exemptions likely violated the Religious Freedom and Restoration Act (RFRA) and the Administrative Procedure Act (APA).

In 2020, the Trump administration finalized a rule reversing the Obama administration’s regulations on Section 1557 and narrowed the definition of “sex.” Days after the Trump administration finalized their rule, in a 6-3 ruling authored by Justice Gorsuch and styled Bostock v. Clayton County, the Supreme Court expanded the definition of “sex” to include “sexual orientation” and “gender identity” for the purposes of employment discrimination under Title VII of the Civil Rights Act of 1964. 

In 2021, the Office for Civil Rights (OCR) at HHS announced that it will interpret and enforce the Affordable Care Act and Title IX’s nondiscrimination provision and expand the definition of “sex” to include “sexual orientation” and “gender identity.” The Office of Civil Rights used the Bostock decision as a justification for its redefinition of “sex.”

What was the court case about?

A second lawsuit challenging the mandate was also filed by Catholic hospital, a Christian healthcare professional association of over 20,000 healthcare professionals, and nine states, objecting to performing gender-transition procedures. Collectively, they asserted that performing these procedures was harmful. The medical professionals involved gladly served all patients, regardless of their sexual and gender identity, but contend that being forced to perform gender-transition procedures would constitute a violation of their conscience rights. 

This is now the second court ruling blocking the administration from enforcing the policy. The first ruling was handed by a federal court in North Dakota.

What’s next?

The Biden administration will have 60 days to decide whether to appeal the court’s ruling.

In the meantime, healthcare professionals throughout the country can continue serving according to their religious beliefs, without fear of retribution.  

The ERLC will always promote and defend the human dignity, religious liberty, and conscience rights of all people and religious organizations — within each administration, on Capitol Hill, and throughout the public square.