Federal judge overturns transgender surgery mandate

Dallas, Texas, Jan 3, 2017 / 16:58 pm

A federal judge has ruled against the Obama administration's mandate that health professionals must carry out gender reassignment surgeries, even if they have medical or religious objections.

"The regulation not only forces healthcare professionals to violate their medical judgment, it requires them to violate their deeply held religious beliefs," U.S. District Judge Reed O'Connor of the Northern District of Texas said in a Dec. 31 decision granting a temporary injunction against the Obama administration.

"Tragically, the regulation would force them to violate those religious beliefs and perform harmful medical transition procedures or else suffer massive financial liability," the judge added.

Under the 2010 Affordable Care Act, discrimination on the basis of sex is explicitly barred for some federally funded health care programs. The Obama administration's Department of Health and Human Services ruled that the provision bans discrimination on the basis of "termination of pregnancy." The agency also said discrimination on the basis of gender identity is a form of sex discrimination.

Critics of the mandate argue that there are many reasons that a doctor might decline to perform gender reassignment surgeries, including purely medical reasons. Doctors must be free to exercise their judgement in deciding the medically appropriate course of action.

Several studies have found that the majority of children experiencing gender dysphoria will outgrow it by adulthood.

"Only a minority of children who experience cross-gender identification will continue to do so into adolescence or adulthood," found a report by the science and technology journal The New Atlantis.

Furthermore, it added, "compared to the general population, adults who have undergone sex-reassignment surgery continue to have a higher risk of experiencing poor mental health outcomes. One study found that, compared to controls, sex-reassigned individuals were about 5 times more likely to attempt suicide and about 19 times more likely to die by suicide."

Johns Hopkins University, once a pioneer in sex reassignment surgery, has since ended the practice, finding that it was actually damaging to those who undergo it. (Editor's note: After 40 years of holding this stance, the university recently announced plans to resume sex reassignment surgeries.) 

The plaintiffs challenging the rule included the Christian Medical and Dental Association and the Franciscan Alliance, which is a hospital network founded by the Sisters of St. Francis of Perpetual Adoration. The states of Texas, Wisconsin, Nebraska, Kentucky and Kansas also joined the suit.

Judge O'Connor sided with the plaintiffs, saying that the new law used the term "sex" to refer to "the binary, biological differences between males and females." Before the passage of the 2010 law, he said, "no federal court or agency had concluded sex should be defined to include gender identity."

The judge said the plaintiffs presented "concrete evidence to support their fears that they will be subject to enforcement under the Rule."

He contended that the case was in essence a question of whether the Department of Health and Human Services can redefine the term "sex" and impose "massive new obligations" on healthcare professionals and U.S. states.

Matt Sharp, legal counsel with the religious liberty group Alliance Defending Freedom, said the ruling was in line with previous court decisions against Obama administration efforts to require individuals and institutions to provide procedures and surgeries that violate their deeply held beliefs.

The decision indicated the court believes the Obama administration "has been essentially rewriting federal law," Sharp told CNA Jan. 3.

Others had filed challenges against the same federal rule.

On Dec. 29 the Diocese of Fargo and the Catholic Benefits Association, which includes 880 Catholic hospitals, filed a lawsuit against the rule, also charging that it would force doctors and hospitals to perform abortions.

Their suit, filed in North Dakota District Court, characterized the rule as part of a "multi-agency effort to redefine the term 'sex' in federal anti-discrimination laws."

"Catholic hospitals provide compassionate care to everyone, regardless of status. Patients experiencing gender dysphoria deserve no less," said Douglas Wilson, chief executive of the Catholic Benefits Association. "The prime ethic of any healthcare provider is do no harm. These regulations do the opposite."

The Obama administration has sought to include gender identity as a class prohibited by sex discrimination in other rules and agencies.

A May 2016 Department of Education directive that public schools should allow students to use the bathroom that matched their self-declared gender identity was blocked after 13 states sued.

Sharp noted that Judge O'Connor had previously ruled against Obama administration rules on schools and gender identity.

"When Congress spoke it was clear they had in mind the biological differences between males and females when they talked about banning sex discrimination," Sharp told CNA.