Transgender lawsuit against Catholic hospital cites new US Supreme Court precedent

CNA Staff, Jul 20, 2020 / 16:47 pm

A Catholic hospital in Maryland faces a lawsuit from a person who presents as a transgender man because it would not perform a hysterectomy on the person's healthy uterus. The lawsuit, whose backers have for decades opposed Catholic ethics in Catholic-run hospitals, cites a 2020 Supreme Court decision that holds employment discrimination on the basis of gender identity to be a violation of U.S. civil rights law.

University of Maryland St. Joseph Medical Center, a Catholic-founded hospital now in the University of Maryland Medical System, canceled the hysterectomy for 33-year-old Jesse Hammons of Baltimore, which had been scheduled for Jan. 6.

The plaintiff's claims that the hysterectomy would not have been canceled if it were for a diagnosis other than gender dysphoria. Because the hospital performs hysterectomies for other diagnosed conditions, it treated Hammons unfairly. Hammons said the surgery would help eliminate the production of estrogen and drastically improve mental health.

Gender dysphoria is a condition in which a person believes themselves to have been "misassigned" their gender at birth. While medical support for "gender-affirmation" surgery has broadened, and is covered by many insurers, the surgery also has its critics.

Michael Schwartzberg, media relations director for the University of Maryland Medical System, said that federal privacy regulations bar it from commenting on any specific case. Any patient seeking care not available at the Catholic hospital can receive care at other hospitals in the system, he said.

"The health and safety of our patients is, and always will be, our highest priority," said the spokesman, saying the hospital was built on "a mission of loving service and compassionate care."

St. Joseph Medical Center was founded in 1864 by the Sisters of St. Francis of Philadelphia. In 2012, when it became a member of the University of Maryland Medical System, the medical system agreed to continue to run the hospital as a Catholic institution.

The hospital's self-description on its website frequently references its Catholic background and mission, stating that it is "guided by our Catholic health care tradition of loving service and compassionate care." It describes itself as "a 218 licensed bed, Catholic acute care hospital that observes the Ethical and Religious Directives for Catholic Health Care Services." The religious directives come from the U.S. Conference of Catholic Bishops.

Gail Cunningham, senior vice president for medical affairs and chief medical officer for the hospital, said that removing an otherwise healthy organ would violate Catholic ethics, the lawsuit said. She canceled the surgery and told the surgeon that gender dysphoria was not a sufficient medical reason for the procedure.

The name of Hammons' surgeon was not listed in the lawsuit, but he or she has admitting privileges at St. Joseph's Medical Center. The surgeon has worked with self-identified transgender men before. Doctors with admitting privileges at the hospital agree to abide by the Catholic ethical directives, the medical system's statement said.

Hammons' preparation involved months of blood tests, ultrasounds, and other health screenings. Hammons' surgeon called the night before the operation to say it was canceled because of the medical center's Catholic principles. The surgery was scheduled at another hospital in May, then moved again to June due to coronavirus restrictions.

Hammons, whose spouse Lura Groen is a pastor of the Evangelical Lutheran Church in America, said it was a surprise that a hospital's religious affiliation could be an obstacle to the surgery, the Washington Post report.

"I felt like this hospital didn't see any worth in my life and the care that I needed," said Hammons. "The University of Maryland St. Joseph's should be caring for all of Maryland's residents. We shouldn't be denied based on who we are."

"Discrimination is not a part of religious liberty," Groen said in a statement from the American Civil Liberties Union. "As a faith leader and taxpayer, I am appalled that this act was done at a government institution and in the name of religion."

A 2016 letter to the Centers for Medicare & Medicaid Services signed by the general counsel for the United States Conference of Catholic Bishops, together with other groups, affirmed that refusing surgery to someone seeking surgery that would allegedly change their gender would not be discriminatory.

"It is not 'discrimination' when a hospital provides care it considers appropriate, declines to perform procedures destructive to patients' welfare and well-being, or declines to take actions that undermine the health, safety, and privacy of other patients," the letter said.

"A hospital does not engage in 'discrimination' when, for example, it performs a mastectomy or hysterectomy on a woman with breast or uterine cancer, respectively, but declines to perform such a procedure on a woman with perfectly healthy breasts or uterus who is seeking to have the appearance of a man."

The lawsuit, filed in U.S. District Court for the District of Maryland July 16, claims St. Joseph's Medical Center violated the equal protection clause under the Fourteenth Amendment and anti-discrimination provisions in the 2010 Affordable Care Act.

The American Civil Liberties Union is involved in the case. It has been engaged in a decades-long crusade against Catholic hospitals, often objecting that they will not provide abortions, which Catholic teaching recognizes as killing the unborn child.

In recent years, it has backed efforts to force compliance with LGBT demands. As CNA has previously reported, the legal group is a beneficiary of a major patronage system seeking to classify religious freedom protections as illegally discriminatory where religion conflicts with LGBT or pro-abortion rights demands.

Hammons is also being represented by the law firms Rosenberg Martin Greenberg and Patterson Belknap Webb & Tyler, the Baltimore Sun reports.

The lawsuit cites the June Supreme Court decision Bostock v. Clayton County, Ga., which holds that the Title VII 1964 Civil Rights Act's ban on sex-based employment discrimination means that discrimination on the basis of sexual orientation or gender identity is also banned.

The decision, authored by Justice Neil Gorsuch, adopted the transgender-favored language of gender "assigned at birth." While Gorsuch cited the Religious Freedom Restoration Act as a possible limit to his redefinition of sex discrimination, it is unclear whether these protections will withstand legal challenge.

The University of Maryland Medical System is a private nonprofit that operates 13 hospitals in Maryland. It is one of the largest employers in the state, the Washington Post reports. Its board members are appointed by the Maryland governor and it has received close to $25 million in the past two years.

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Joshua Block, a staff attorney with the ACLU, is representing Hammons. He said the presence of Catholic hospitals is a church-state separation problem, given their mergers with taxpayer-supported hospitals like the University of Maryland Medical System.

"As Catholic hospitals continue to expand … you're going to run into these sorts of establishment clauses more and more," Block told the Washington Post.

"It's important to make crystal clear here that if you're going to have a hospital that is organized around religious beliefs, that hospital can't be intertwined with the government."

In a July 17 statement, he characterized the hospital as "a governmental entity" that "cannot deny medical care based on religious beliefs."

Hammons had the surgery June 24 and claims a drastic positive change in mental health, reporting better focus and energy.

"I can really just see how wrong it was to be denied in the first place," Hammons said, according to the Washington Post.

Among the sceptics of "gender affirmation" surgery are 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. In 2016, they reviewed hundreds of scientific articles on sexual orientation and gender identity issues.
"Compared to the general population, adults who have undergone sex-reassignment surgery continue to have a higher risk of experiencing poor mental health outcomes," they concluded, in a report published by The New Atlantis journal.

Several Catholic hospitals have faced lawsuits for declining to conduct transgender surgeries.

The ACLU is currently representing a self-identified transgender plaintiff in a lawsuit filed in March 2019 against St. Joseph Health of Northern California, a group of five Catholic hospitals in California, St. Joseph Hospital, Eureka declined to perform a hysterectomy on the plaintiff's healthy uterus.

In September 2019, a court allowed an ACLU-backed 2017 lawsuit to proceed against California's largest chain of hospitals, Dignity Health, after doctors declined to perform a scheduled hysterectomy at Mercy San Juan Medical Center. The defendant in that case also claimed that she was denied the procedure due to gender identity.

In 2017, a transgender-identifying individual sued St. Joseph's Regional Medical Center in Paterson, N.J. For canceling a hysterectomy in 2015.

There is also legal controversy over whether Catholic institutions' employee health plans should cover transgender surgeries. In January 2019 the Catholic healthcare network PeaceHealth settled an ACLU lawsuit over transgender surgeries, saying that it has covered these procedures in its employee medical plan since January 2017.

While religious freedom protections and traditions of religious tolerance tended to protect Catholic institutions in the U.S., Catholic adoption agencies are now barred from operating or receiving taxpayer funds in many localities because they place children only with married men and women rather than same-sex couples.