Court victories strengthen Catholic groups' protections against 'gender transition' mandates

Washington D.C., Jan 22, 2021 / 14:01 pm

Catholic medical groups and employers say their religious freedom position has been strengthened by a federal injunction against mandatory insurance coverage or medical referrals for gender transition therapy.
 
"This is a victory not just for the Catholic Benefits Association, but for religious freedom itself," Doug Wilson, CEO of the Catholic Benefits Association, said Jan. 20. "These rulings will protect Catholic employers for years to come."
 
"Our members can continue to provide the highest quality employee benefits to their 90,000 employees and their families, while living their religious beliefs," Wilson said. "These protections also extend to each employer's insurer, third-party administrator, and to future members of the Catholic Benefits Association."
 
The Denver-based Catholic Benefits Association was founded in 2013. It helps employers form and administer employee benefit plans consistent with the Catholic faith and works to protect its employer members' First Amendment legal rights. It serves over 1,000 Catholic employers, including 60 dioceses and archdioceses, religious orders, colleges and universities, hospitals and other ministries. Seven Catholic archbishops serve on its ethics committee.
 
With other Catholic groups, the association challenged the federal mandate that doctors perform or refer for gender-transition surgeries-despite objections that the doctor may have to the procedure. The mandate also requires insurance coverage for gender-transition surgeries.
 
The mandate, issued in 2016, stemmed from the Obama administration's interpretation of Section 1557 of the 2010 Affordable Care Act, which prohibits discrimination in health care in a number of areas, including sex discrimination. The Obama administration interpreted this to include protections against discrimination on the basis of sexual orientation and gender identity. The Department of Health and Human Services said that doctors could not refuse to make gender-transition surgery referrals.
 
The Catholic groups who challenged the federal rule alleged that the mandate violated their religious freedom by requiring them to provide insurance coverage and medical assistance for gender transition surgeries.
 
On Jan. 19, U.S. District Judge Peter Welte of the Eastern District of North Dakota granted Catholic groups that challenged the mandate permanent injunctive relief from having to provide or cover gender-transition procedures. The court is the second federal court to rule against the mandate. In October 2019, District Judge Reed O'Connor of the North District of Texas struck down the mandate after doctors had sued, alleging violations of conscience.
 
Wilson was grateful for Welte's permanent injunction. The injunction protects its members against the 2016 mandates and similar Equal Employment Opportunity Commission rules and discrimination claims based on the interpretation of 'sex' under Title VII of the Civil Rights Act of 1964.
 
He said the Catholic Benefits Association's lawsuit was unique in that it was the only one to challenge EEOC rules and Title VII discrimination claims under the new interpretation of "sex."
 
The interpretation of "sex" is newly relevant. In the 2020 decision Bostock v. Clayton County, the U.S. Supreme Court ruled that "sex" can include sexual orientation and gender identity in prohibitions on workplace discrimination on the basis of sex.
 
Justice Neil Gorsuch's opinion in the case attempted to keep the changes narrow, but it has already proved influential. President Joe Biden, in his first day in office, signed a significant executive order expanding Gorsuch's redefinition of "sex" throughout federal law and policy in ways that could have major consequences, including mandatory coverage of gender transition procedures.
 
Medical critics of the surgical practice say gender transition appears to provide only temporary change in health outcomes, if any. In 2016, Paul R. McHugh, M.D., the former chief of psychiatry at Johns Hopkins Hospital, and Lawrence S. Mayer, M.B., M.S., Ph.D., then a scholar in residence in the Johns Hopkins School of Medicine's psychiatry department, reviewed hundreds of scientific articles on sexual orientation and gender identity issues.
 
They found continued high risk of poor mental health incomes for patients who had gone through the transition surgery.
 
Philosophical, religious and moral critics of the practice question whether gender transition is even possible and whether it gives too much credence to patients' perceptions of being the "wrong sex."
The practice wrongly disassociates gender from biological sex, they say.
 
Criticism of gender transition has become taboo in recent years. Critics face opposition from LGBT advocates and their supporters. Some local laws consider the refusal to affirm a person's self-perceived gender identity to be an illegal form of "conversion therapy", but some of these laws are themselves under legal challenge.
 
Wilson voiced gratitude to Catholic Benefits Association members who had shown "unwavering support" for the legal challenge to the Obama-era rule. He also thanked the co-plaintiffs the Catholic Medical Association, the Diocese of Fargo, and Catholic Charities of North Dakota. Four Catholic groups under the Religious Sisters of Mercy had also brought objections.
 
Luke Goodrich, vice president and senior counsel at Becket, which represented the plaintiffs, called the decision a "major victory for religious freedom."
 
The Catholic plaintiffs "joyfully serve all patients regardless of sex or gender identity," Goodrich said on Twitter. "They routinely provide top-notch care to transgender patients for everything from cancer to the common cold. They also provide millions of dollars in free and low-cost care to the elderly, poor, and underserved rural areas."
 
While Judge Welte granted the Catholic groups an injunction on the mandate's requirement of gender-transition surgery and coverage, he dismissed their abortion-related claims, saying concerns about mandatory abortion coverage were addressed by a 2020 rule from the Department of Health and Human Services and other legal interpretations in force.
 
Catholic challenges to other health coverage mandates have proven successful.
 
In 2018, a federal judge has ordered that $718,000 in compensation be paid to the Catholic Benefits Association after its successful religious freedom legal fight against mandated health care coverage for sterilization and contraceptives, including abortifacient drugs, that would have violated Catholic beliefs.
 
The companies that make up the benefits association had collectively accrued $6.9 billion in fines for not providing the coverage. These fines were eliminated by a federal judge's March 2018 ruling.