When Worlds of Gender Ideology and Religious Freedom Collide

COMMENTARY: The current administration has made no effort to carve out conscience rights and religious exemptions to the transgender mandate. So lawsuits continue to be filed.

Flanked by Vice President Kamala Harris, l, and Secretary of Defense Lloyd Austin, r, U.S. President Joe Biden signs an executive order repealing the ban on transgender people serving openly in the military in the Oval Office of the White House on Jan. 25.
Flanked by Vice President Kamala Harris, l, and Secretary of Defense Lloyd Austin, r, U.S. President Joe Biden signs an executive order repealing the ban on transgender people serving openly in the military in the Oval Office of the White House on Jan. 25. (photo: Doug Mills-Pool / Getty Images)

The Affordable Care Act, passed in 2010 during the Obama administration, was the most sweeping regulatory expansion of health-care coverage since Medicare and Medicaid were created in the mid-1960s. One provision of the act, Section 1557, prohibits discrimination on the basis of sex by “any health program or activity” receiving federal financial assistance. A general antidiscrimination provision would normally be a fine idea. When it is hijacked by gender ideologues, however, it comes up against important conscience rights.  

Obama’s Department of Health and Human Services (HHS) said in 2016 that Section 1557’s prohibition of “discrimination on the basis of sex” includes discrimination based on gender identity and sex stereotypes. That clarification may sound innocuous, but its consequences are shocking: Many doctors are forced to prescribe dangerous medications and perform elective gender-transition procedures, including cosmetic surgeries such as double mastectomies, phalloplasties and orchiectomies (testicle removal). The mandate covers all patients, even children. It doesn’t matter if a doctor believes that doing so is harmful to the patient. Virtually all private insurance companies and many employers are required to cover gender-transition procedures or face legal action, regardless of religious or moral objections.

Bishop Michael Burbidge of the Diocese of Arlington, Virginia, recently published a lengthy pastoral letter addressing gender ideology. This immensely compassionate document addressed to Catholics says that “the claim to ‘be transgender’ or the desire to seek ‘transition’ rests on a mistaken view of the human person, rejects the body as a gift from God, and leads to grave harm. To affirm someone in an identity at odds with biological sex … is to mislead that person.” In the case of children suffering gender dysphoria, Bishop Burbidge’s letter is unequivocal: 

“Under no circumstances should parents seek ‘gender-affirming’ therapy for their children, as it is fundamentally incompatible with the truth of the human person. … They should not seek, encourage, or approve any counseling or medical procedures that would confirm mistaken understandings of human sexuality and identity, or lead to (often irreversible) bodily mutilation.”

This statement of Catholic teaching is consistent with important findings — rarely mentioned in the secular media — that most children suffering from gender dysphoria grow up not to be transgender. 

Others may disagree. But for many health-care providers and professionals, the prospect of complying with the demands of the “transgender mandate” conflicts with their religious, moral and medical principles. Their only way to object is to go to court. 

One lawsuit challenging the transgender mandate was brought by the Catholic hospital network Franciscan Alliance, the Christian Medical & Dental Association’s religious health-care providers. A court ruled that HHS lacked the authority to prohibit discrimination based on gender identity and likely violated the Religious Freedom Restoration Act (RFRA), the federal law generally barring the federal government from burdening religious exercise. The court later ordered the federal government to revise the mandate.

The Trump administration, following that court’s order, removed the gender-identity language, saying that the prior administration had “exceeded its authority” and “adopted erroneous and inconsistent interpretations of civil-rights law, caused confusion, and imposed unjustified and unnecessary costs.” 

The revised rule was immediately attacked. Two separate lawsuits — one in New York and one in the District of Columbia — were filed by transgender people and a coalition of health-care providers serving transgender patients. Both courts ruled in favor of the plaintiffs, effectively restoring Obama’s transgender mandate. 

And where does the United States’ second Catholic president stand on the transgender mandate? You can probably guess. On the day of his inauguration, President Joe Biden issued an executive order directing all federal agencies to classify discrimination based on gender identity and sexual orientation as forms of sex discrimination. A few months later, Biden’s HHS announced that it would interpret and enforce prohibitions of discrimination on grounds of gender identity and sexual orientation. 

The agency graciously added that its enforcement activity would comply with RFRA and court orders related to Section 1557, but it did not explain in detail how this would occur.    

Biden’s administration has taken up the defense of the transgender mandate in court. Religious Sisters of Mercy v. Azar was brought by an order of Catholic nuns, a Catholic university and Catholic health-care organizations. Their case was consolidated with one brought by the Catholic Benefits Association, an association of diocesan and church affiliates and private business owners. A district court judge recently stopped enforcement of the transgender mandate against these groups and, in the case of the Catholic Benefits Association, their current and future members. The Biden administration has appealed the court-ordered exemption to the 8th Circuit Court of Appeals.   

Permanent relief for plaintiffs in Franciscan Alliance recently came, as well. The district court held that Biden’s interpretation of Section 1557 “forces Christian plaintiffs to face civil penalties or to perform gender-transition procedures and abortions contrary to their religious beliefs — a quintessential irreparable injury.” The Biden administration has not filed a notice of appeal with the 5th Circuit Court of Appeals. Not yet. 

The current administration has made no effort to carve out conscience rights and religious exemptions to the transgender mandate. So lawsuits continue to be filed. Last month, the Catholic Medical Association and the American College of Pediatricians went to court. Their complaint asserts: 

“Doctors now face an untenable choice: either act against their medical judgment and deeply held convictions by performing controversial and often medically dangerous gender-transition interventions, or succumb to huge financial penalties, lose participation in Medicaid and other federal funding, and, as a practical matter, lose the ability to practice medicine in virtually any setting.” 

They argue that Biden’s transgender mandate violates RFRA and the U.S. Constitution. They too want to be spared from having to violate their conscience by complying with the transgender mandate and are asking the court to issue a permanent nationwide injunction.

Gender ideologues have a stronghold in the Biden administration. Health-care providers with religious, moral and medical objections to Biden’s transgender mandate are pushing back to safeguard conscience rights. Their legal victories may be the only reality check on this latest progressive ideology.


Andrea Picciotti-Bayer, the director of the Conscience Project, is the host of the Register podcast Religious Freedom Matters.

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