Freedom

By Jack Phillips

The White House will not seek a U.S. Supreme Court intervention for its requirement that health care organizations and hospitals perform and cover transgender medical procedures after it missed its deadline to file an appeal.

The Becket Fund for Religious Liberty legal group said in a news release that the Biden administration missed a June 20 deadline to appeal its case to the U.S. Supreme Court after multiple courts blocked the administration’s mandate. Both the 8th U.S. Circuit Court of Appeals and 5th U.S. Circuit Court of Appeals blocked the mandate from going through in recent years.

“After multiple defeats in court, the federal government has thrown in the towel on its controversial, medically unsupported transgender mandate,” Luke Goodrich, vice president and senior counsel at the Becket Fund for Religious Liberty, which was representing the plaintiffs in the case. The case, Sisters of Mercy v. Becerra, was last heard in the 8th Circuit in December in which a panel of judges ruled unanimously in favor of a group of Catholic hospitals, nuns, and a university.

He added that “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.”

While declaring victory over the mandate, Goodrich said that “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,” adding: “This is a win for patients, conscience, and common sense.”

The health care mandate was derived from a 2016 interpretation of Obamacare, or the Affordable Care Act, in which the Department of Health and Human Services (HHS) and Equal Employment Opportunity Commission found that doctors and hospitals are required to provide transgender procedures for adults and children.

The Trump administration attempted to repeal the rule in 2020, but that effort was blocked by federal courts. That same year, the U.S. Supreme Court in Bostock v. Clayton County held that discrimination based on so-called gender identity is a form of discrimination.

Previous Rulings

The plaintiffs in the case had sued in 2016 to strike down the rule, but the case was stayed for most of the Trump administration. They amended their complaint in 2020 after the Trump-era rule was blocked.

In December, the 8th U.S. Circuit Court of Appeals agreed with a North Dakota federal judge who said the HHS rule infringes on the religious freedoms of the plaintiffs, including a group of nuns who run health clinics for the poor and an association of Catholic health care professionals. The New Orleans-based 5th Circuit came to the same conclusion in August in a case brought by Christian medical groups.

U.S. District Judge Peter Welte in Fargo, North Dakota, ruled in favor of the plaintiffs last year.

Welte said applying the rule to providers with religious objections to performing gender transition surgeries would violate the federal Religious Freedom Restoration Act. That law prohibits the government from burdening an individual’s exercise of religion.

The 8th Circuit on Friday agreed. The court said the intrusion on the plaintiffs’ rights under the act was enough to establish the irreparable harm necessary to block HHS from enforcing the rule against the plaintiffs.

“We agree with these courts and therefore conclude that the district court correctly held that “intrusion upon the Catholic Plaintiffs’ exercise of religion is sufficient to show irreparable harm,” the 8th Appeals Court wrote at the time (pdf).

The White House’s apparent refusal to decline to pursue the case comes as more and more Republican-led states and lawmakers have barred transgender procedures for children. Meanwhile, a growing number of European countries have started to highlight (pdf) the serious physical and mental harm that can be caused by such procedures, putting them at odds with Washington.

However, officials in some Democrat-led states like Massachusetts have floated the idea of enacting child abuse laws for withholding transgender drugs and treatment for children. Last month, the state’s “Commission on Lesbian, Gay, Bisexual, Transgender, Queer, and Questioning Youth” panel released a recommendation that seeks to target parents who don’t allow their children to receive the drugs or procedures, according to a news release posted on the state government’s website.

In California, some state lawmakers recently proposed a bill that critics say would punish parents who do not “affirm” a child’s preferred gender despite their biological sex. The bill, which passed in the state Assembly, requires a judge in a custody dispute hearing over a transgender-identifying child to favor the parent who “affirms” the child’s claims.

Last week, an updated version of the measure would define “the health, safety, and welfare” of a child to also include “a parent’s affirmation of the child’s gender identity,” according to reports.