Biden Tries to Resurrect HHS Rule Forcing Catholic Doctors to Perform Transgender Surgery

On day before Joe Biden became president, a federal court in North Dakota defended Roman Catholic health care providers from an Obamacare mandate forcing doctors and nurses to perform experimental transgender surgeries that violate Roman Catholic convictions. Yet on Tuesday, the Department of Health and Human Services (HHS) appealed that decision, seeking to enforce the transgender mandate on Catholic health care providers.

Luke Goodrich, vice president and senior counsel at the religious freedom law firm Becket, which represents the Catholic health care providers, noted the tragic irony of an administration headed by a Catholic president targeting the religious freedom of Catholic doctors.

“It is troubling that this administration is going after religious doctors, hospitals, and nuns. We saw it with the Little Sisters of the Poor, when the government tried to force them to provide contraceptives and abortifacients, and now this administration is trying to do the same thing with controversial gender transition procedures,” Goodrich told PJ Media.

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Goodrich first announced the Biden administration’s appeal on Tuesday.

“The Biden Admin just filed an appeal seeking to force religious doctors and hospitals to perform potentially harmful gender-transition procedures against their conscience and professional medical judgment. This is bad for patients, doctors, and religious liberty,” Luke Goodrich announced on Twitter.

“The Biden Admin says it can punish doctors and hospitals for ‘sex discrimination’ unless they perform controversial gender-transition procedures,” Goodrich added. “A court struck down this [transgender mandate] in January… But the Biden Admin just appealed.”

In Religious Sisters of Mercy v. Azar (2021), the U.S. District Court for the District of North Dakota protected the Religious Sisters of Mercy, the Sacred Heart Mercy Health Care Center, SMP Health System, and the University of Mary from a Health and Human Services (HHS) mandate banning discrimination on the basis of sex. The court also protected the Catholic Benefits Association (CBA) from a similar Equal Employment and Opportunity Commission (EEOC) rule.

Before PJ Media received access to the Notice of Appeal filed by HHS Secretary Xavier Becerra, PJ Media reached out to the Department of Justice (DOJ), HHS, and the Equal Employment and Opportunity Commission (EEOC). An HHS spokesperson said the agency does not comment on pending litigation, while the DOJ and EEOC did not respond.

The court’s injunction prevents the Biden administration from using the HHS and the EEOC to enforce the Obamacare transgender mandate, forcing doctors to provide cross-sex hormones and sex-reassignment surgery. Some doctors have warned that even the hormones — the less invasive “treatment” — give healthy people a disease. The actual surgery often involves sterilizing a patient for life. Mandating such “treatments” would force doctors to violate the Hippocratic oath.

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While the Supreme Court in Bostock v. Clayton County (2020) wrongly decided that Title VII’s prohibition of discrimination on the basis of sex applies to discrimination on the basis of sexual orientation and gender identity, the North Dakota court rightly decided that forcing Catholic doctors and nurses to perform transgender surgery violates their religious freedom.

In 2016, the HHS under then-President Barack Obama issued a rule interpreting Section 1557 of the Patient Protection and Affordable Care Act (Obamacare), which prohibits certain forms of discrimination in health care. The 2016 rule applied Section 1557 to prohibit discrimination on the basis of gender identity, sex stereotyping, and wish to terminate a pregnancy. That rule also excluded some religious freedom protections.

Under Trump last year, HHS issued a new rule, striking abortion from Section 1557 and reinterpreting how broadly the rule applies. The 2020 rule also attempted to reverse the transgender mandate, but some courts have held that the Supreme Court’s ruling in Bostock prevented this change.

The court ruled that HHS and EEOC would likely apply the Obamacare transgender mandate against the Catholic health providers — and that is especially true given Joe Biden’s outspoken support for transgender activism. The court did not oppose this interpretation of the rule, but it did explicitly prohibit the government from applying the mandate to the Catholic health providers.

“The Catholic healthcare entities’ refusal to perform or cover gender-transition procedures is predicated on an exercise of their religious beliefs protected by the First Amendment,” Chief Judge Peter Welte wrote in his ruling.

“Under the prevailing interpretations of Section 1557 and Title VII, refusal to perform or cover gender-transition procedures would result in the Catholic Plaintiffs losing millions of dollars in federal healthcare funding and incurring civil and criminal liability,” Welte noted. “In meticulous detail, the Catholic Plaintiffs have explained that their religious beliefs regarding human sexuality and procreation prevent them from facilitating gender transitions through either medical services or insurance coverage.”

The Religious Freedom Restoration Act sets a “strict scrutiny” test for governmental limits on fundamental rights like religious freedom. The government must demonstrate that its regulation represents “the least restrictive means” of furthering a “compelling state interest.”

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Welte ruled that the Obamacare transgender mandate fails the “least restrictive means” test.

“Here, the Defendants possess many less restrictive alternatives beyond forcing the Catholic Plaintiffs to perform and cover gender-transition procedures in violation of their religious beliefs,” he argued. If the government aims to expand financial support for transgender surgery, the government could pay for the surgery itself, or provide subsidies, reimbursements, tax credits, or tax deductions. Alternately, the government could offer coverage through the Obamacare exchanges.

The government has no business forcing doctors to violate the Hippocratic Oath by performing “treatments” that harm healthy bodily function in pursuit of a false gender identity. Like evangelical Christians, Roman Catholics believe that human beings are male or female, and that removal of healthy sexual organs does damage to a person’s body.

Yet the expansion of transgender ideology into medicine is not just dangerous for Roman Catholics and other Christians. Transgender identity in medicine has caused real harm. In one particularly tragic case, a pregnant woman who identified as a man went to a hospital with abdominal pain. Because she identified as male and records listed her as male, doctors discounted the idea that she could be in labor. She did not receive the care she needed and her child died.

Research shows that there are significant risks with sex reassignment surgery, including heart conditions, increased cancer risk, and loss of bone density. Children with gender dysphoria (the condition of persistently identifying with the gender opposite one’s biological sex) are extremely unlikely to continue in that condition after puberty. Many realize they are not transgender, but instead gay or lesbian — like detransitioner Charlotte Evans, who launched a network for formerly transgender people.

Recommended: University’s Transgender Pronoun Policy May Have Violated the First Amendment, Court Rules

Biden, however, has rushed to embrace transgender ideology, particularly in medicine. He nominated a man who identifies as a woman — and who supported chemical castration for minors — to a key post at HHS, and the Democratic-majority Senate confirmed him.

It is truly tragic and ironic that the administration of Joe Biden, America’s second Roman Catholic president, is fighting for the right to force Catholic doctors to violate their consciences by performing transgender surgery.

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