CNA—Catholic groups and legal experts denounced the Biden administration’s notice on Monday that it would prohibit denial of gender-transition procedures in health care.
The Department of Health and Human Services (HHS) on Monday issued a notice that it would include, as unlawful sex discrimination, “discrimination on the basis of sexual orientation” as well as “on the basis of gender identity.”
Legal experts warned that HHS Secretary Xavier Becerra, a Catholic, would be enforcing federal law to require gender-transition procedures, under the policy of nondiscrimination.
“Becerra is threatening to put doctors and hospitals that disagree with current transgender ideology out of business, including those with medical, religious, or moral objections to conducting sex-reassignment surgeries on minors,” said Roger Severino, former head of the HHS Office for Civil Rights and current director of the HHS Accountability Project at the Ethics & Public Policy Center.
Mandating gender-transition procedures, while many doctors remain opposed to providing them, is not sound medical policy, he added.
The fundamental art of medicine and science shut down, opinion-of-the-day rules
“Becerra is trying to change the fundamental practice of medicine and science by the stroke of a pen, but will soon learn through lawsuits that sex as a biological reality won’t be so easily erased,” Severino said.
The HHS notice, announced on Monday, states that it is interpreting sex discrimination in health care to include discrimination on the basis of sexual orientation and gender identity.
In the Affordable Care Act, Sec. 1557 prohibited sex discrimination in health care; the Obama administration interpreted that provision to prohibit discrimination on the basis of pregnancy, sexual orientation, and gender identity. Thus, the administration said that the denial of some procedures, such as abortions and gender-transition surgeries, constituted unlawful discrimination in health care.
Using that interpretation, the administration in 2016 announced the “transgender mandate,” forcing all doctors who accept Medicaid and other federal funding to provide gender-transition surgeries upon the referral of a mental health professional. The administration did not allow exemptions for doctors who objected to the procedures because of conscience or medical reasons.
On Monday, the Biden administration said it was extending protections against sex discrimination to include sexual orientation and gender identity discrimination. It cited the Supreme Court’s June 2020 decision in Bostock v. Clayton County, where the court found that federal laws against sex-based employment discrimination also applied to cases involving sexual orientation and gender identity.
Doctors and Hospitals face punishment and worse
Becket, a legal group which is representing a coalition of doctors and religious groups opposed to the transgender mandate, said on Monday that the HHS announcement will “punish” doctors and hospitals opposed to the mandate.
Becket vice president and senior counsel Luke Goodrich said the group would be asking a federal court on Friday for a permanent injunction from the mandate.
HHS said that it would comply with existing court orders against the transgender mandate, as well as federal religious freedom protections under the Religious Freedom Restoration Act. However, Becket said that the administration is still fighting these cases in court.
“In today’s announcement, 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,” Goodrich said. Congress is also considering the Equality Act, a law which prohibits discrimination on the basis of gender identity and which specifically overrides RFRA. The White House has supported the legislation and called for its passage.
Severino on Monday called the Biden administration’s announcement “lawless.”
“This lawless action circumvents the public rulemaking process followed by both the Trump and Obama administrations on this issue and contradicts an existing court injunction,” he said. Two federal courts have ruled against the HHS transgender mandate.
As head of the HHS civil rights office, Severino twice found Becerra – then-attorney general of California – in violation of federal conscience laws, due to his defense of state abortion mandates.
Other Catholic leaders condemned the HHS announcement
“Coercing doctors to carry out highly controversial and unproven ‘treatments’ like administering puberty blocking hormones to children and performing irreversible sex changes – against their best medical judgment and conscience – is the latest effort by the Biden administration to force anyone who dissents from its radical ideology into compliance,” stated Grazie Pozo Christie, M.D., policy advisor for The Catholic Association.
Brian Burch, president of CatholicVote.org, said the announcement was all about mandating gender-transitioning, and not about actual “health care.”
“Contrary to the misleading HHS announcement, no American is being denied care for broken arms, or standard medical procedures based on their gender ‘identity’ or sexual orientation. This move by HHS is a setup to normalize and strong arm doctors into administering puberty blocking drugs on children, performing sex-change surgeries, and more,” he stated. “Catholic hospitals and doctors are likely to come under increased pressure and scrutiny as a result.”
In 2020, the Trump administration said it would only interpret sex discrimination under biological sex, and not gender identity or sexual orientation.