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Eighth Circuit Court considers transgender mandate

Thomas F. Eagleton Courthouse, Eigth Circuit Court of Appeals

ST. LOUIS (BP) – A federal appeals court is considering whether a lower court was correct in halting government regulations that require health care providers to perform or provide insurance coverage for gender-transition procedures.

A three-judge panel of the Eighth Circuit Court of Appeals in St. Louis heard oral arguments Dec. 15 in a case involving a challenge by Catholic hospitals and other institutions, as well as an order of nuns, to what has been described as the transgender mandate.

Federal judge Peter Welte of North Dakota issued an injunction in February that blocked the Department of Health and Human Services (HHS) and the Equal Employment Opportunity Commission (EEOC) from enforcing their interpretations of a section of the Affordable Care Act, the 2010 health-care reform law. Welte ruled that requiring the Catholic entities to provide drugs and conduct surgeries for sex reassignment, or to cover such treatments, “violates their sincerely held religious beliefs.”

Welte is one of two federal judges who have blocked enforcement of the mandate, which was issued in 2016 during the Obama administration and revived earlier this year under President Biden.

Southern Baptist ethics leader Brent Leatherwood said, “Previous courts have already struck down this mandate, and the Eighth Circuit should do the same.

“Coercing doctors and health-care workers to go against their consciences in order to further a political agenda is dangerous ground for the federal government to be walking,” said Leatherwood, acting president of the Ethics & Religious Liberty Commission, in written comments.

“No one denies that these professionals are rendering the best possible medical care to all of their patients. But to go a step beyond that and force them to perform highly controversial procedures, running roughshod over their best medical judgment and deeply held beliefs, is something that should be shocking to anyone who believes in the principles of liberty.”

The Catholic entities don’t have legal standing to be granted an injunction at this point, Department of Justice lawyer Ashley Cheung told the appeals court judges during oral arguments involving two combined cases.

HHS and the EEOC “are still in the process of considering these complicated issues,” Cheung said. “There is no credible threat of enforcement here.

“The agencies have not in fact taken a position either way on whether objecting religious entities are required to provide and cover transition services. And in fact, neither agency has ever taken any enforcement action against any entity for declining to cover transition services, let alone an objecting religious entity.”

Representing the Religious Sisters of Mercy and other Catholic institutions, Luke Goodrich told the judges a “credible threat of enforcement” by HHS exists.

HHS “has clearly stated its position in the 2016 rule, saying that categorical refusals to perform or insure gender transitions, which is what our clients do, [are] unlawful on [their] face,” said Goodrich, vice president and senior counsel at Becket, an organization that defends the religious freedom of all faith groups.

HHS’ history of investigating complaints about violations of the mandate and the fact it “has repeatedly vowed” to enforce the mandate are among reasons the injunction should be affirmed, Goodrich said.

Cheung told the panel the Religious Freedom Restoration Act (RFRA) would guide the federal agencies in bringing enforcement actions. A federal law enacted in 1993, RFRA bars the government from substantially burdening the free exercise of religion. The government may gain an exemption if it can show it has a compelling interest and is using the “least restrictive means” to further that interest.

RFRA analysis cannot take place in the abstract but must be based on specific facts, Cheung said. “And here, we have no facts. … [N]o concrete case or controversy [exists] for the court to decide.”

Goodrich said, however, HHS “knows this raises a huge issue under RFRA, and yet it has staunchly refused to grant a clear religious exemption.”

In a written release after the arguments, Goodrich said, “It is past time for [the Biden administration] to stop forcing doctors to go against conscience and sound medical judgment and to start respecting their Hippocratic Oath to ‘do no harm.’ The federal government has no business forcing doctors to perform controversial procedures that could be deeply harmful to patients.”

Becket said the doctors and hospitals in the case serve all patients regardless of their sex or gender identity and provide excellent care to transgender patients but refuse to perform gender-transition procedures that would violate their beliefs and could harm patients, especially children.

Studies have shown that from 73 to 94 percent of children with gender dysphoria, or dissatisfaction, develop out of their dysphoria naturally.

HHS announced in May it would interpret federal law banning discrimination on the basis of sex to include discrimination on the basis of both sexual orientation and gender identity. Sexual orientation includes homosexuality, bisexuality and pansexuality, while gender identity refers to the way a person perceives himself regardless of his biology at birth.

In reversing a Trump administration policy, HHS said it based its decision on the Supreme Court’s ruling in 2020 that found the category of “sex” in employment non-discrimination law protects lesbian, gay, bisexual and transgender employees. It also relied on ensuing federal appeals court opinions, according to HHS. The Obama administration also defined “sex” in its 2016 rule to include sexual orientation and gender identity.

A HHS panel of experts said in 2016 the literature “is ‘inconclusive’ on whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria.” The department’s 2016 rule exempted the federal government’s Medicare and Medicaid programs from the regulation’s requirement.

Messengers to the 2014 Southern Baptist Convention approved a resolution regarding transgender identity that “affirm[ed] God’s good design that gender identity is determined by biological sex and not by one’s self-perception.” The resolution “regard[ed] our transgender neighbors as image-bearers of Almighty God and therefore condemn[ed] acts of abuse or bullying committed against them.” It also invited all transgender people to trust in Jesus.

A 2016 resolution on sexuality reaffirmed Southern Baptists’ love for those who identify as transgender.