Lawsuits Challenge Federal ‘Transgender Mandate’

Nine states have joined Catholic institutions to challenge rule requiring doctors to administer hormonal drugs, perform transgender surgeries.

(photo: Shutterstock/Oleksandr Malysh)

WASHINGTON — A pair of lawsuits filed on behalf of nine states, several religious orders and more than a dozen Catholic hospitals are challenging a new federal mandate that attorneys say requires doctors to administer hormonal drugs and perform transgender surgeries, even if doing so goes against their medical judgment or religious convictions.

“It’s horrifying that this rule imposes those types of requirements on doctors,” said Stephanie Barclay, an attorney with the Becket Fund, the group that has filed the lawsuits.

The mandate has a sweeping impact, affecting up to 900,000 doctors, according to Barclay.

The new rule was enacted by the U.S. Department of Health and Human Services, and HHS Secretary Sylvia Burwell   is named as the main defendant in the suits.

The Becket Fund is warning of the potential consequences for children, who are covered under the mandate. It also questions the prudence of performing irreversible procedures on children when studies indicate that the vast majority of them — up to 94% — tend to outgrow their gender dysphoria (their identification with the sex opposite to their biological sex).

The first lawsuit against the rule, filed Oct. 21, is on behalf of the Franciscan Alliance, a network of 14 hospitals in Illinois and Indiana established by the Sisters of St. Francis of Perpetual Adoration, and the Christian Medical and Dental Society, an Illinois nonprofit. Eight states are also represented: Texas, Wisconsin, Nebraska, Kentucky, Kansas, Louisiana, Arizona and Mississippi.

The second lawsuit was filed Nov. 7 on behalf of the Sisters of Mercy — and two clinics they operate — and the Sisters of Mary of the Presentation, who also run a network of hospitals and clinics. Both are based in the upper Midwest. The state of North Dakota and the University of Mary, a Benedictine college in Bismarck, are also parties to the suit.

“[T]hese cases raise the same legal issues,” said Luke Goodrich, an attorney at the Becket Fund. “But different parties in different parts of the country are affected by the rule, and it’s not always possible to simply add new parties to an existing lawsuit, so that's why a similar case is being brought in a different court.”

A Becket Fund attorney was unavailable to comment following the election on the potential impact the outcome might have on the issue of the transgender mandate.


Experimental Procedures

Doctors warn that transgender procedures are still experimental and could have a range of potential adverse effects.

“Science tells us that people who feel they are trapped in the wrong body are not born this way. The HHS mandate, however, forces all physicians to go against science and pretend that they are in the wrong body. Therefore, physicians are to prescribe, or refer to another physician who will prescribe toxic hormones and the surgical removal of healthy body parts in order to impersonate the opposite sex,” said Michelle Cretella, the president of the American College of Pediatricians, a 500-member organization that she describes as committed to “the highest quality research and natural-law principles.”

She said the procedures sterilize children as young as 11 years old.

“You do not treat a mental or emotional illness by creating physical disease,” Cretella said.

“We know from studies that giving estrogen to women can increase their risks of heart attack, stroke, blood clots, phlebitis, breast cancer, gall bladder disease, liver tumors and even death, but we have no idea what it will do to biologically gendered males who do not have the same cellular physiology as women over the long term,” added Dr. Lester Ruppersberger, a board-certified obstetrician and gynecologist who serves as the president of the Catholic Medical Association. “Further, these surgeries are permanent, mutilating and irreversible — and very expensive.”

“No child has the cognitive or experiential maturity to make these kinds of irreversible, life-altering decisions. To allow parents to make these decisions for their children is equally unethical,” Cretella said.

The Becket Fund sees such concerns validated by the fact that the federal government has exempted itself — that is, the Centers for Medicare and Medicaid Services — from its own mandate.

“It’s really astonishing to see the hypocrisy,” Barclay said.


Conscience Concerns

Ruppersberger indicated that forcing private doctors to carry out such procedures violates their Hippocratic Oath to do no harm. In order for a doctor to have ethics, he or she must also have a well-formed conscience, which is based on a sense of what is right and wrong, Ruppersberger said.

For many doctors, he said that moral sense, in turn, is shaped by religious conviction. “Those of us who have a strong faith background hold the human body as sacred and with dignity from conception to natural death, and ‘mandates’ that do not respect the dignity of the person are violations of law and conscience,” Ruppersberger said, citing the Genesis account of Adam and Eve.

Kevin Miller, a moral theologian at the Franciscan University of Steubenville, said the Church’s opposition to transgender procedures is also rooted natural law. That begins with the understanding that a person “isn’t a soul inhabiting a body, but, rather, a body-soul composite.” The integrity of the body is violated when individuals have a perfectly healthy body cosmetically modified to match their mental image of what their sex should be, according to Miller.

“Most of us still recognize this on an instinctive level when — in cases that are, thank heavens, pretty rare — people demand some kinds of bodily mutilations, like amputation of a healthy limb,” Miller said. “And this remains true also —perhaps even more true! — in cases in which someone wants a male body transformed into a ‘female’ one, or vice versa.”

Though the issue of “gender transition” is not explicitly discussed in magisterial documents, two encyclicals of Pope St. John Paul outline the foundational principles for opposing it. Veritatis Splendor (The Splendor of Truth) reinforces Church teaching about the unity of the body and soul. A second encyclical, Evangelium Vitae (The Value and Inviolability of Human Life), warns of the pitfalls of considering nature to be “mere ‘matter’ for our manipulation,” Miller said.


Severe Penalties for Non-Compliance

The transgender mandate took effect in July, but additional requirements and penalties won’t kick in until next January. Barclay says the repercussions for doctors could be severe, ranging from monetary impacts to lawsuits and even job loss.

“The consequences of these mandates could force physicians out of business, have them limit their practices, create fines and block their participation in federally funded health insurance plans and affect their ability to support their families. It may even affect their board certification and hospital privileges if certifying boards buy into these mandates motivated by an ideological agenda that can prove to be harmful to our patients,” Ruppersberger said.

Added Cretella, “Physicians who refuse will face a reduction in payments from Medicaid and Medicare, and likely worse. This issue is so politicized that physicians have already been sanctioned in the workplace just for expressing the view that gender dysphoria in children is treatable with therapy and should not be treated with toxic hormones or surgery.”

Register correspondent Stephen Beale writes from Providence, Rhode Island.