‘Trans-Medicine:’ It’s Real and It’s Dangerous
COMMENTARY: Catholics must, with due care and concern for those afflicted by gender dysphoria, push back against the grave error of gender ideology and reaffirm the objective truths about the human person.
A few years ago none of us had heard of “trans-medicine.” It sounded like something from a low-budget science fiction movie. Now most of us have. It’s real and it’s dangerous.
Despite medical and moral concerns — particularly when it comes to children — the federal government insists that hospitals and health-care professionals provide “gender-affirming” procedures and therapies and that health insurance plans cover the costs. Lawsuits filed by Catholic health-care institutions and doctors may well offer the only chance to stop the madness.
Some background (it’s pretty complicated): In 2016, President Obama’s Department of Health and Human Services (HHS) interpreted the anti-discrimination provision in Section 1557 of the Affordable Care Act (ACA) to prohibit health-care providers that receive federal funding or participate in ACA exchanges from discriminating on the basis of “gender identity.”
This transgender mandate would force doctors and other medical professionals to perform gender transition procedures, even on children, and require private employers to cover these procedures or be threatened with crippling fines and potential litigation. Several Catholic and other Christian organizations and medical professionals filed lawsuits in federal court challenging this transgender mandate. We’ll discuss the status of these cases in further detail below.
The Trump administration tried to rescind the transgender mandate, but two courts — one in New York and the other in the District of Columbia — blocked the attempt. On President Joe Biden’s first day in office, he signed an executive order directing all federal agencies that enforce laws prohibiting sex discrimination to also prohibit discrimination based on sexual orientation and gender identity in areas including (but not limited to) employment, housing, health care, education and credit. The order noted the Supreme Court’s 2020 decision in Bostock v. Clayton County, where the Court held that Title VII’s prohibition on discrimination in employment “because of … sex” covers discrimination on the basis of gender identity and sexual orientation. Under Bostock’s reasoning, the president asserted, “laws that prohibit sex discrimination … along with their implementing regulations — prohibit discrimination on the basis of gender identity or sexual orientation.”
Consistent with the president’s directive, Biden’s HHS earlier this month published its proposed rule that adds gender identity to the class of protected categories in Section 1557. Significantly, the Biden transgender mandate is far more expansive than the Obama-era policy, enforcing anti-discrimination protections for patients with Medicare Part B, which covers outpatient physician care. (Take note: Comments from the public can be submitted here.)
How respectful will Biden’s HHS be to religious and conscience objectors to the new mandate? Perhaps you can guess.
Let’s take a look at those lawsuits filed by Catholic doctors and institutions:
Despite repeated losses in court, the Biden administration is vigorously opposing the religious objectors to the transgender mandate.
In January 2021, a judge in North Dakota ruled in favor of the Catholic Benefits Association, Catholic Charities North Dakota, the Diocese of Fargo, the Catholic Medical Association and the Religious Sisters of Mercy, Sacred Heart Mercy Health Care Center, SMP Health System and the University of Mary. It permanently enjoined government from interpreting or enforcing Section 1557 against the plaintiffs “in a manner that would require them to perform or provide insurance coverage for gender-transition procedures.”
The judge also permanently enjoined the U.S. Equal Employment Opportunity Commission from similarly interpreting or enforcing Title VII of the Civil Rights Act of 1964 to require the Catholic plaintiffs as employers to provide insurance coverage for sex reassignments.
A great decision, in other words. So, naturally, the Biden administration appealed this ruling to the Eighth Circuit court of appeals.
The transgender mandate fared no better in Texas. In a case filed on behalf of Franciscan Alliance, a religious hospital network sponsored by the Sisters of St. Francis of Perpetual Adoration and the Christian Medical and Dental Associations and joined by eight states, a judge ordered a broad injunction in August 2021 against enforcing Section 1557 against the plaintiffs to require gender transition care or abortion. The Biden administration, joined by the American Civil Liberties Union (remember when they still believed in civil liberties?) appealed the case to the Fifth Circuit. Oral argument in that court was heard recently.
And in August of last year, two more lawsuits were filed: one in Tennessee by a coalition of medical providers, including the Catholic Medical Association, and one in Texas by physicians.
Is there any chance that the new Biden rule will resolve plaintiffs’ concerns? Again, I think you can guess this one.
One of the Catholic groups that initially filed suit in 2016, Franciscan Alliance, submitted a letter recently with the Fifth Circuit court of appeals noting that the new Biden rule again refuses to incorporate any categorical religious exemption. The group reminded the appellate panel that the district court had invalidated the 2016 rule for such a refusal. HHS needn’t even respond to a religious objector if it lacks “a sufficiently concrete factual basis for making a determination.” To sum up, President Biden’s new transgender mandate continues to threaten to force Catholic hospitals, doctors and health-care plans to pay for or perform objectionable “gender-affirming” therapies and procedures on vulnerable children and confused adults.
I suspect this won’t play with the American public. The thought of children being subjected to these procedures strikes people as distinctly disturbing. It’s an Achilles’ heel of the transgender movement — something that separates an earlier school of liberals from the dogma-crazed progressives who think they can dictate the policy of this administration.
As for American Catholics, we can look to guidance from certain Church leaders like Bishop Michael Burbidge of Arlington, Virginia, and lay organizations like the Person and Identity Project, an initiative of the Catholic Women’s Forum at the Ethics and Public Policy Center. The latter offers free resources on gender ideology for parents, schools and churches and an incredibly helpful toolkit on medical concerns.
“Psychological and medical interventions to ‘affirm’ an individual’s desired gender identity in opposition to bodily reality cause serious, irreversible harm,” they explain. “Catholics cannot affirm or validate a ‘transgender’ or other identity that rejects the person’s innate sexual identity (male or female).”
Catholics must, with due care and concern for those afflicted by gender dysphoria, push back against the grave error of gender ideology and reaffirm truths about the human person. Victories for religious freedom, conscience righ and sound medical judgement in cases brought by Catholic organizations and medical professionals may be right around the corner. Watch this space.
- gender dysphoria
- gender ideology
- president biden