By / Jun 26

On June 21, the Biden administration passed on its final opportunity to appeal the Eighth Circuit Court of Appeal’s ruling that struck down the “transgender mandate” in Sisters of Mercy v. Becerra. Counsel in the case, Luke Goodrich, said, “after multiple defeats in court, the federal government has thrown in the towel on its controversial, medically unsupported transgender mandate.”

The case was brought by the Sisters of Mercy, the University of Mary, and the SMP Health System in 2016 challenging the mandate that would require them to provide gender transition care against their religious convictions and medical expertise. The court struck down the mandate in December.

A similar case named Franciscan Alliance v. Becerra also succeeded in challenging the transgender mandate in August after the Fifth Circuit Court of Appeals ruled that it violated religious freedom. The group represented an association of over 19,000 healthcare professionals, eight states, and two religious hospitals. The Biden administration declined to appeal this decision, as well. 

In response to the decision, ERLC President Brent Leatherwood said,

The Biden administration’s decision to back down from the transgender mandate marks a significant victory in safeguarding the rights of medical professionals to operate in a manner consistent with their deepest held beliefs. This is an important development we should take note of because it not only represents a win for conscience rights but also furthers efforts to shield vulnerable individuals who should never become pawns in the sexual revolution.

What is the transgender mandate?

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 they 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 2021, upon taking office, Biden reversed the Trump administration’s conscience protections by continuing to amend the language in the ACA to force doctors to perform gender-transition surgeries. The litigation was still in the courts pending a final decision, both of which came in 2022. The expiration of the appeal deadline terminates the Biden administration’s attempts to force the transgender mandate through the ACA. 

How has the ERLC been involved?

From the beginning, the ERLC has been an outspoken opponent of the transgender mandate because of its harmful implications for those undergoing these procedures as well as its flagrant violations of religious liberty and conscience protections for healthcare professionals.

Opposing the transgender mandate has been a top public policy priority for the ERLC, and in 2022, the ERLC filed public comments opposing the Department of Health and Human Services’ (HHS) most recent attempt to steamroll the consciences of these medical professionals. Today’s failure to appeal is a final victory after many years of dedicated advocacy from the ERLC and religious liberty allies.

Why does this matter to Southern Baptists?

As Southern Baptists, we believe that God, in his good design, has created us to be male and female to promote our flourishing. Despite how culture’s views of sexuality and gender may change over time, our commitment to this truth remains steadfast. 

Similarly, religious liberty and the protection of conscience is a bedrock principle for Baptists. As the Baptist Faith and Message describes, “God alone is Lord of the conscience.” Mandates from the government that force individuals to choose between their deeply held beliefs and their duties in the workplace must be opposed. The ERLC will always work to promote the dignity of all people and protect the religious liberty of all people of faith.

Following the decision, ERLC President Brent Leatherwood said, “Whether it is championing the preservation of individual consciences rooted in faith or defending the well-being of all image-bearers, the ERLC stands resolute, advocating tirelessly on behalf of our SBC churches. In doing so, we will not yield in our mission to protect and defend those who need it most.”

By / Sep 2

In this episode, Brent and Lindsay discuss the United Nations’ report on human rights violations in China, the rejection of the Transgender Mandate at a Federal Appeals Court, life in the digital age, and Yeshiva University’s appeal to SCOTUS regarding a potential religious liberty violation. They also celebrate the beginning of college football season. 

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By / Sep 2

A federal appeals court upheld a ruling preventing the Department of Health and Human Services (HHS) from requiring doctors and hospitals to perform abortions and gender-transition procedures. A three-judge panel unanimously upheld an injunction issued in a federal court in Texas that barred enforcement of the regulation. 

“Baptists have long recognized ‘God alone is Lord of the conscience,’” said Brent Leatherwood, acting president of the Ethics & Religious Liberty Commission. “This ruling adheres to that truth and protects doctors and health-care providers from violating their consciences by conducting gender-transition surgeries or abortions.

“The government must understand that asking medical personnel to go against their sincerely held religious beliefs is an abuse of state authority,” he said. “This result is not only a victory for the rights of doctors but also recognizes that the conscience is not some trivial item that can be paved over.”

What was ​​the HHS regulation?

In 2016, HHS issued a rule—known as the Transgender Mandate—that required doctors to perform gender-transition procedures on any child referred by a mental health professional, even if the doctor believes the treatment or hormone therapy could harm the child. 

The regulation was based on implementation of Section 1557 of the Patient Protection and Affordable Care Act (ACA), a nondiscrimination provision that redefined “sex” to include sexual orientation and gender identity. 

In response to the issuance of this regulation, two lawsuits were filed on behalf of multiple religious organizations, healthcare providers, and several states. The ERLC supported the move to challenge the mandate. 

What was the court case about?

In Franciscan Alliance v. Becerra, the court ruled that a Catholic healthcare network and the Christian Medical and Dental Society—a group of nearly 19,000 healthcare professionals—cannot be required to carry out gender transition procedures or abortions when it violates their deeply held beliefs and professional medical judgment. 

As Becket, the religious liberty law firm that defended the plantiffs, explains, “The court explained that while the government argued it should get more chances to show why it needed religious healthcare providers to participate in gender-transition procedures, other cases showed that permanent protection was appropriate

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.

How did the term “sex” become redefined in the law?

In 2016, a 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).

Four years later, the Trump administration finalized a rule reversing the Obama administration’s regulations on Section 1557 and narrowed the definition of “sex.” But mere days after this rule was completed, a 6-3 Supreme Court ruling authored by Justice Gorsuch in Bostock v. Clayton County 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 happens now?

In most court cases, appeals are final. The court of appeals decision usually will be the final word in the case, which means physicians will not be required by to violate their conscience by the Transgender Mandate. The Supreme Court could be asked to take up the case, but there is no justification for them to overturn the permanent injunction. This decision is likely to stand as a major victory for conscience rights