The court case concerning discrimination in healthcare on the basis of gender identity will serve as a blueprint for future litigation against the Biden administration’s revival of 2016 protections for transgender people.
The Department of Health and Human Services has proposed adding gender identity to the class of protected categories in Obamacare’s anti-discrimination statute known as Section 1557. The Biden administration is seeking to reverse an effort in 2020 by the Trump administration to exclude anti-discrimination protections for people based on their gender identity, defining discrimination on the basis of sex to mean only biological sex.
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The 2016 version prompted the lawsuit between the federal government and a Catholic hospital system called the Franciscan Alliance, which argued the rule constituted a mandate that violated religious freedoms. The case is still being litigated nearly six years later.
The Franciscan Alliance, a Catholic medical group, a Christian medical association, and five states sued the Obama administration in 2016 over its definition of discrimination “on the basis of sex” to include discrimination based on “gender identity.” In December 2016, Judge Reed O’Connor of the Northern District of Texas issued a nationwide injunction, finding that the HHS Office for Civil Rights’ interpretation of the anti-discrimination rule violated the Administrative Procedure Act and Religious Freedom Restoration Act. The rule was then remanded back to HHS.
In 2021, O’Connor granted a permanent injunction on enforcement of the rule, determining that the federal government could not enforce the part of Section 1557 that would compel the plaintiffs in the case to perform or provide insurance coverage for transition services. HHS, which now cannot enforce this interpretation of Section 1557 by withholding federal funds or otherwise penalizing the specific religious plaintiffs in Franciscan Alliance, has appealed the case to the Fifth Circuit.
The latest iteration of the rule from the Biden administration flies in the face of O’Connor’s ruling, according to Roger Severino, the vice president of domestic policy at the Heritage Foundation and former director of the Office for Civil Rights at HHS under the Trump administration.
“They are trying to get around an existing injunction in a Franciscan Alliance case,” said Severino, who authored the 2020 rule concerning Section 1557.
The Biden administration’s proposed rule is expected to yield lawsuits from healthcare providers and hospital systems that object to providing gender transitions on religious or moral grounds. HHS Secretary Xavier Becerra said the rule would still make room for objections on a religious basis, but religious freedom advocates are skeptical.
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“It’s clearly HHS’ position that these doctors should not have conscience and religious rights to not perform treatments that are harmful and irreversible, especially for children,” said Rachel Morrison, a policy analyst at the Ethics and Public Policy Center. “It’s kind of like they’re saying, here’s this process you could apply on the one hand, and then, on the other hand, they’re fighting those who have sought those protections. So it’s hard to take them seriously.”
