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Biden administration will not fight to bring back ‘transgender mandate’


WASHINGTON (BP) – The Biden administration will not appeal an Eighth Circuit Court of Appeals decision from December 2022 that blocked the so-called “transgender mandate.”

The mandate was an attempt by the Biden administration to define sex to include “gender identity” for the purposes of HHS regulations.

Critics say the rule would have required doctors, clinics and hospitals to perform procedures to which they object and insurance companies to pay for such procedures.

Ethics & Religious Liberty Commission President Brent Leatherwood welcomed the news.

“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,” Leatherwood said in written comments. “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.”

The rule was first introduced in 2016 during the Obama administration’s implementation of a portion of the Affordable Care Act. According to the ERLC, the 2016 HHS rule required doctors to perform gender-transition procedures for any child referred by a mental health professional, even if the doctor believed the treatment or hormone therapy could harm the child.

Becket, a religious liberty law group, has shepherded lawsuits filed by medical groups opposed to the rule, as those suits have made their way through the courts.

“We extend our sincere appreciation to Becket, an organization that has shown exceptional leadership in this area, because this action benefits people of faith and religious organizations from all backgrounds,” Leatherwood said.

Luke Goodrich is vice president and senior counsel at Becket.

“After multiple defeats in court, the federal government has thrown in the towel on its controversial, medically unsupported transgender mandate,” Goodrich said in written comments. “Doctors take a solemn oath to ‘do no harm,’ and they can’t keep that oath if the federal government is forcing them to perform harmful, irreversible procedures against their conscience and medical expertise.

“These religious doctors and hospitals provide vital care to patients in need, including millions of dollars in free and low-cost care to the elderly, poor, and underserved. This is a win for patients, conscience, and common sense.”

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 since Title IX “unambiguously refers to the biological and anatomical differences between male and female students as determined at their birth.” That ruling also said the rule’s lack of a religious exemption likely violated the Religious Freedom and Restoration Act (RFRA) and the Administrative Procedure Act (APA).

Four years later, the Trump administration reverted back to the original meaning of the term “sex.” But just days later, a 6-3 Supreme Court ruling authored by Justice Gorsuch in Bostock v. Clayton Countyexpanded 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.

Leatherwood said regardless of court decisions, his entity’s position is unwavering.

“For the ERLC’s part, our commitment extends beyond legal battles alone,” he 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 Southern Baptist churches. In doing so, we will not yield in our mission to protect and defend those who need it most.”