Catholic Employers Have Opportunity for Protection From HHS Abortion and Transgender Mandates

The Catholic Benefits Association’s legal victories allow present and future nonprofit and for-profit members to provide employee benefits in line with their well-formed Catholic consciences.

A Catholic doctor folding hands with his Rosary.
A Catholic doctor folding hands with his Rosary. (photo: Mr. Nixon / Shutterstock)

Catholic employers that belong to the Catholic Benefits Association, from dioceses to nonprofit and for-profit small businesses, can secure employee benefits free from government mandates that violate their religious beliefs, thanks to a recent legal decision in federal court. 

“We have a very unique and comprehensive ruling,” Douglas Wilson, CEO of the Catholic Benefits Association, told the Register. “Anybody who becomes a member of CBA now will be protected,” he said.

The CBA case is part of a set of ongoing legal actions in North Dakota and Texas against the Department of Health and Human Services’ mandate, implemented in 2016 and revised in 2020, that required doctors to perform gender-transition surgeries or refer patients for them — despite objections they would have to the procedure — and would require insurance coverage for gender-transition surgeries. But for Catholic entities not a party to these other ongoing legal cases, the CBA case provides them a path to secure those protections for their employee benefits, provided the government does not seek to challenge them by appealing the ruling. 

“We’re trying to build a safe haven where Catholic employers can live their faith through the benefits they provide to their membership,” Wilson said. 

On Jan. 19, U.S. district Judge Peter Welte of the Eastern District of North Dakota granted Catholic Benefits Association, and a coalition of other Catholic groups, which were represented by the religious liberty organization Becket, permanent injunctive relief from the HHS mandate. 

The federal court’s decision followed an October 2019 federal district court decision in Texas, which had also struck down the transgender mandate but did not issue an injunction. 

Becket has appealed to the 5th U.S. Circuit Court of Appeals in order to obtain the injunction in that case, as well. The federal appeals court is set to hear the case on March 3.

“We need a court order telling HHS you’re not allowed to force Catholic hospitals, doctors, and the Christian Medical and Dental Association to perform and pay for gender transitions in violation of their religious beliefs and their medical judgement,” Luke Goodrich, vice president and senior counsel at Becket, told the Register.


Legal Background

Goodrich explained that Becket filed the two lawsuits in federal courts based in Texas and North Dakota shortly after the Obama administration issued the transgender mandate in 2016. Becket represented the Franciscan Alliance in the Texas case and the Sisters of Mercy, University of Mary, and SMP Health System in the North Dakota case. However, Goodrich said the cases were put on hold after the Trump administration asked for an opportunity to address those concerns with a new rule, which it published in 2020. 

However, Goodrich explained that the Trump administration’s new rule did not solve the issue. The U.S. Supreme Court’s June 2020 decision in Bostock v. Clayton County interpreted Title VII’s prohibitions against discrimination based on sex to include both sexual orientation and gender identity.

“There’s an argument in line with Bostock that the 2020 rule does not lift the transgender mandate,” Goodrich said. “Because the 2020 rule didn’t solve the problem, we pressed forward with both of those lawsuits in Texas and North Dakota.”

Goodrich explained the North Dakota case secured a permanent injunction based on the Religious Freedom Restoration Act. So HHS cannot impose abortion or transgender mandates on the parties in those cases.

The parties are working to resolve some leftover issues, but “once that cleanup is done, the judgment from the North Dakota case will be final.”

Then the 60-day clock starts for HHS to file an appeal. 

While the case is not nationwide, Goodrich said, “Every plaintiff in the case and any of the members of the Catholic Benefits Association are protected.”

Goodrich added that HHS will have to take the decisions coming out of Texas and North Dakota “very seriously” if it tries to enforce the transgender mandate against other religious entities that are not technically protected by the injunction. Other federal courts will be looking at existing precedent coming out of Texas and North Dakota, he said, “so they’d be rolling the dice.”


CBA’s Hard-Won Protections

The Catholic Benefits Association’s legal victory under the Religious Freedom Restoration Act applies to both present and future members. The decision in North Dakota adopted a legal precedent set in the CBA’s victory against the abortion mandate, making the protections apply to present and future members, so the courts would not have to deal with repeat litigation as the CBA’s membership grew.

CBA had also secured, from that period of litigation, for legal protections to be “extended to the insurance carriers and third-party administrators working in service to our members.” 

CBA’s membership includes 65 dioceses, approximately a third of the U.S. dioceses and eparchies, and 1,100 affiliated members, such as charities, hospitals, universities and small businesses. Wilson said the association is seeing a “tremendous upswing” in membership following the ruling. 

The CBA scheduled an in-depth webinar on Feb. 16 and another on Feb. 18 with the U.S. bishops to discuss what the win means, who is protected, and who can participate. He said feedback has been very positive.

“We believe that webinar is going to be exceptionally well attended,” he said in advance of the initial event.

Wilson said the legal protections from these cases include CBA’s member class of for-profit and nonprofit businesses owned by Catholics. The legal criteria for CBA members is the company has to be majority-owned by Catholics (51% or more), the board has to be 51% Catholic, and they have to have a written policy that they provide benefits that adhere to the written teachings of the Catholic Church. 

“If they meet those three criteria, they can join the CBA and enjoy the same membership benefits as the dioceses that are members,” he said. 


Moral Considerations

At the heart of these disagreements between the federal government and Catholic entities is an incorrect understanding of what constitutes a human being, one Catholic moral theologian explained.

Kevin Miller, a professor at Franciscan University of Steubenville, told the Register human beings are a unity of body and soul, and therefore bodies cannot be treated as if a body were clothes for the soul.

“We are a composite of body and soul — to be one sex or the other is part of our embodied nature. It’s human nature to be either male or female,” he said, while acknowledging that there are some very rare genetic conditions that pose more complicated cases. “But when someone who is genetically male or female, XY or XX, and has normal genitalia corresponding to that chromosome type, then it’s part of that person’s nature to be male or female, respectively.”

For this reason, he said, the Church is very concerned about hormonal treatments and surgeries to change one’s sexual presentation because they would be a type of mutilation. While a mutilation like amputation would be appropriate for a diseased limb to save the body, he explained that mutilation is not something that could be done on a healthy body. 

“Doctors who recognize the wrongness of these treatments and procedures, and so on, shouldn’t be forced to do them, and taxpayers shouldn’t be forced to pay for them,” he said, saying Catholics need to have the freedom to act in accord with their well-formed consciences. 

The Vatican has taken up the issue of “gender ideology” in education — the notional idea that gender is a social construct and a person can simply choose his or her own gender identity. Miller said that, as far as he knows, the Vatican has not addressed the scientific subject of gender dysphoria — a medical condition of one’s subjective experience of gender being in conflict with one’s objective biological sex — and moral pathways for treating the condition. 

He said, “It’s going to be increasingly necessary for the magisterium to step in on this.”