WASHINGTON — The Biden administration’s push on the transgender issue continued this month with a move that some say will violate the rights of health-care providers with religious or ethical objections to treating patients based on gender identity. 

The Department of Health and Human Services (HHS) announced May 10 that the Office of Civil Rights would interpret and enforce a ban on discrimination based on sex to include discrimination on the basis of sexual orientation and gender identity. 

Roger Severino, the former head of the Department of Health and Human Services Office of Civil Rights who founded its Conscience and Religious Freedom Division during his time there, discussed the Biden administration’s announcement with the Register. 

Severino, who is currently a senior fellow at the Ethics and Public Policy Center, criticized the administration’s failure to follow the rulemaking process for such a change, calling the move “a dictate through a press release.” 

“We previously had extensive rulemaking both under the Obama and Trump administrations where we received hundreds of thousands of comments, read every one, responded to all of them because that’s what the law requires,” he said. “Here they are absolutely disregarding the law which requires them to take public comment before they make a change of this magnitude.”

 

Religious Freedom Concerns

In the announcement, OCR stated that they “will comply with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., and all other legal requirements. Additionally, OCR will comply with all applicable court orders.” 

The Religious Freedom Restoration Act (RFRA), signed into law in 1993 by President Bill Clinton, limits the government’s ability to “substantially burden a person’s exercise of religion” to cases where the government can demonstrate that the burden is “the least restrictive means” of furthering a “compelling government interest.” 

Severino found OCR’s claim of compliance with RFRA difficult to believe, saying he doesn’t “expect that this administration will respect the Religious Freedom Restoration Act. They are, in fact, in favor of stripping it away from all other anti-discrimination laws so that it will present no obstacle to them imposing their transgender ideology.” 

He said the administration’s reference to the Religious Freedom Restoration Act “is just lip service because they’ve already shown that they are quite hostile to the right of religious accommodation and religious exercise.” 

President Biden indicated his administration’s lack of support for the RFRA May 17 when he reaffirmed his support for the Equality Act, a measure that would ban discrimination on the basis of sexual orientation and gender identity, but also explicitly excludes RFRA protections. 

“I continue to urge Congress to pass the Equality Act, which would confirm critical civil rights protections on the basis of sexual orientation and gender identity for all Americans,” Biden said in a statement. 

Luke Goodrich, vice president and senior counsel at Becket Law, said last week that the group would be seeking a permanent injunction from the HHS mandate regarding gender identity. 

“HHS says it will comply with the Religious Freedom Restoration Act (RFRA) and ‘applicable’ court rulings — but it is these very rulings HHS is fighting to overturn in court,” he said.

Commenting on the announcement, Assistant Secretary of Health Dr. Rachel Levine, said, “The mission of our department is to enhance the health and well-being of all Americans, no matter their gender identity or sexual orientation. All people need access to health-care services to fix a broken bone, protect their heart health, and screen for cancer risk.” 

Levine, a biological man who identifies as female, has made statements backing puberty blockers and hormone treatments for children identifying as a different gender. 

Jared Eckert, a research assistant at the Heritage Foundation’s Devos Center for Religion and Civil Society, told the Register that “litigation over this involves and concerns the treatment of gender dysphoria — it’s not about access to basic medical care like getting a vaccine shot or fixing a broken bone or screening for cancer as the Biden administration claims.”

 

Sex Discrimination Redefinition 

In its June 2020 Bostock v. Clayton County decision, the U.S. Supreme Court held that Title VII’s prohibition on employment discrimination based on sex encompasses discrimination based on sexual orientation and gender identity. 

Eckert said the Biden administration’s rule uses the Supreme Court’s decision to “make its reinterpretation, but that decision was not a ruling on health care, it was a ruling on employment. That’s something to keep in mind that this is an extension, this is applying Bostock to an area that Bostock didn’t talk about. Additionally, it did not redefine sex to mean sexual orientation and gender identity.”

OCR stated that its announcement was “consistent” with the Supreme Court’s ruling in Bostock. Alliance Defending Freedom Senior Counsel John Bursch told the Register that the Bostock decision was “limited to the employment context and specifically to firing someone simply because of those characteristics and the court disclaimed that Bostock would apply in any other context.” 

“The problem is that the Biden administration, both with Section 1557 and with the Fair Housing Administration and in a number of other contexts, is arbitrarily redefining sex and regulating the lives of countless Americans and it’s not appropriate to do that,” he said. “In each one you have to take a hard look at how Congress, or whatever federal agency is involved, originally used the word sex and determine whether Bostock applies and this is one situation where it should not.” 

Bursch cited a case pending at the Supreme Court, Minton v. Dignity Health in which, he noted, a “California Catholic hospital declined to do a sex-change operation based on the Catholic Church’s teaching.” He said it’s the “kind of case that you might see additional litigation on in the future.” 

He said litigation also “may come from a doctor who isn’t invoking religious protections but they’re simply invoking medical reasons why they don’t think that a surgery or a hormone intervention is appropriate, and they think that this law requires them to do so.”

Bursch cautioned that the Biden administration’s changes on this issue aren’t “limited to medicine.” He referenced litigation that Alliance Defending Freedom “filed on behalf of the College of the Ozarks with respect to their reinterpretation of sex in that context and in that policy it would require any college in the country that wants to maintain sex specific dormitories to place students based on their identity as opposed to their sexuality and for a religious institution that’s a real problem. This rule would apply even if the school doesn’t accept a single dollar of federal money.” 

“President Biden, back at the very beginning of his term, issued an executive order that essentially asked all of the federal agencies to consider how they can insert gender identity concepts wherever the word sex appears in federal law,” he added, “so I’m afraid we’re going to see this conflict come up in many, many contexts. It’s going to be a severe problem for people of religious faith who think that sex is immutable and biologically based.”

 

Risks of Puberty Blockers 

John Brehany, executive vice president at the National Catholic Bioethics Center, told the Register that the rule enables “practices that do not reflect a proper respect for the human body.” 

He said, “For someone with a healthy body and in particular a healthy body in development going through puberty to try to undo that process, to try to radically change that healthy body through surgery or through drugs, has tremendous implications. It literally involves mutilation, destruction of bodily tissues, trying to reconstruct bodily tissue. It often involves the loss of function of important bodily functions. It can involve the need for ongoing surgery over the course of decades because the body wants to try to go back.”

Brehany said that interfering with puberty also means interfering in “an entire process of maturation of the person from the brain to the muscles to the lungs ... they want to short circuit that process for some adolescents based on a subjective perception.” Cutting short that process, he said, “doesn’t just affect sexual organs, it can affect brain development and even emotional development and these things cannot be undone necessarily.”

The New York Times recently reported that “while puberty blockers are commonly referred to as ‘fully reversible,’ more research is needed to fully understand the impact they may have on certain patients’ fertility. There is also little known about the drugs’ lasting effects on brain development and bone mineral density.” 

The Endocrine Society advises “individuals seeking gender-affirming medical treatment should receive information and counsel on options for fertility preservation prior to initiating puberty suppression in adolescents and prior to treating with hormonal therapy in both adolescents and adults.”

Brehany said adolescents are being told “we can put you on these drugs right now to make you feel better,” but “do they really understand that they are short-circuiting the process of healthy physical development in a way that may never be correctable? And they’ll be on drugs the rest of their life if they want to maintain a certain level of appearance.”

Severino said “states are pushing back passing laws protecting the conscience rights of doctors to not perform these permanent, life-altering surgeries on minors.” He highlighted the fact that the United Kingdom High Court has effectively prohibited “cross-sex hormones and puberty blockers in minors because of the risks of taking this traumatic experiment on our children again without scientific backing.” 

In that case, judges concluded, “It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers. It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.” 

 

‘Bad Science and Bad Medicine’

“The Biden administration is throwing caution to the wind and now is going to be mandating that this experiment continues at the hands of people who disagree for good medical, religious, and moral reasons,” Severino said. “That’s the coercive aspect of this move. If anybody receives federal funds from Medicaid to Medicare to research grants they have to now accept — whether they agree or not — the new ideology that sex is subjective and it is whatever somebody says it is.” 

Dr. Paul Hruz, an associate professor of pediatrics and endocrinology at Washington University in St. Louis, told the Register via email that “proper interpretation and implementation of the Biden administration’s ‘anti-bias’ policy is key to ensuring that this executive action does not harm the very people it is intended to help.” 

“It is essential that one recognizes the innate biological differences between males and females,” he said. “Providing proper evidence-based medical care necessitates that physicians make treatment decisions in accord with these biological differences. This includes understanding that males and females have different disease predisposition, and respond differently to medications and other medical treatments.”

Hruz added, “This is the reason why our NIH (National Institutes of Health) requires researchers to investigate sex as a biological variable in all funded research. Doctors are also required to consider relative risks and benefits of medical interventions before making specific treatment recommendations. The failure to do so is both bad science and bad medicine.” 

“The treatment of people who suffer from gender dysphoria with hormones and surgery intended to align the physical appearance of the body to one's perceived sexual identity remains experimental with many remaining questions regarding relative risk and long term benefit,” he concluded. “Politicization of this area of medical care is itself a grave injustice. It jeopardizes the entire scientific enterprise.”