Judge blocks HHS mandate on gender transition, abortion

A federal judge has blocked implementation of a controversial Obama administration rule that requires doctors to perform gender transition procedures or treatments, as well as abortions.

In a Dec. 31 opinion, judge Reed O'Connor of the Northern District of Texas granted a nationwide, preliminary injunction against a Department of Health and Human Services (HHS) regulation that mandates the performance of and insurance coverage for gender transitions—even on children—and abortions, even if they violate the religious or ethical beliefs of the physicians and others involved.

The HHS rule was scheduled to go into full effect Jan. 1. Religious freedom advocates applauded the decision.

"This ruling is a common-sense decision that is a victory for all who believe that children should not be pawns of the state and that the political ideology of the day should not supplant the consciences of doctors," said Travis Wussow, the new vice president for public policy, as well as general counsel, of the Southern Baptist Ethics & Religious Liberty Commission. 

"I am thankful for Judge O'Connor's intervention and pray that our federal government would stop its needless assault on the conscience," Wussow said in written comments for Baptist Press.

Lori Windham, senior counsel for Becket Law (formerly the Becket Fund for Religious Liberty), described O'Connor's ruling as "an across-the-board victory."

"The government has no business forcing private doctors to perform procedures on children that the government itself recognizes can be harmful and exempts its own doctors from performing," Windham said in a written statement. "The ruling ensures that doctors' best medical judgment will not be replaced with political agendas and bureaucratic interference."

O'Connor, whose court is in Wichita Falls, had previously blocked enforcement of another transgender directive from the Obama administration. In August, he issued a preliminary injunction against a May guidance from the Departments of Education and Justice that instructed public school districts, as well as colleges and universities, to allow students to use the restrooms and locker rooms of their gender identity instead of their biological sex.

In granting the latest injunction, O'Connor ruled those challenging the HHS transgender/abortion mandate had demonstrated they likely would succeed because the rule redefined "sex discrimination" and failed to protect religious freedom.

As it did in its guidance to schools, the Obama administration defined "sex" in the HHS rule to include gender identity, which it describes as "an individual's internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual's sex assigned at birth."

Title IX—a federal law that bars sex discrimination in federally funded education programs and activities—"unambiguously prevented discrimination on the basis of the biological differences between males and females," O'Connor wrote, thereby ruling it did not include gender identity.

He also said the HHS regulation's "failure to include Title IX's religious exemptions renders the [mandate] contrary to law."

The HHS regulation, an implementation of the 2010 health-reform law, became partly effective July 18.

In October, a Christian association of more than 10,000 physicians and a Roman Catholic hospital system—represented by Becket Law—asked O'Connor to block enforcement of the rule. Eight states joined the Christian Medical and Dental Associations and the Franciscan Network in the legal challenge.

In their motion, the challengers contended the HHS regulation violates the U.S. Constitution, including the First Amendment's freedom of speech clause, and federal laws, including the Religious Freedom Restoration Act.

The HHS rule applies to all private doctors, health care providers and health insurance plans that accept federal funding. It apparently would affect more than 900,000 physicians and virtually all hospitals. Foes of the regulation estimate it will cost citizens and health care providers nearly $1 billion.

HHS exempted the federal government's Medicare and Medicaid programs from the regulation's requirement, however, because its panel of experts said the literature "is 'inconclusive' on whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria." Gender dysphoria refers to the discomfort a person may feel with his biological sex.

The Human Rights Campaign (HRC)—the country's largest gay and transgender rights organization—criticized O'Connor's decision.

The ruling "puts thousands of people at risk of marginalization, harassment, and discrimination at a time they are most vulnerable and in need of inclusive, respectful care," HRC Legal Director Sarah Warbelow said in a written release. "While Judge O'Connor's action is unconscionable, we believe that justice will prevail as courts continue to recognize that discrimination on the basis of sex is illegal, including discrimination on the basis of gender identity."

A website started in opposition to the HHS rule—www.transgendermandate.org—reports two studies show overwhelming numbers of children who report gender dysphoria grow out of that discomfort and live healthy lives despite not having surgery or lifelong hormone treatments. One study showed this to be true in 77 to 94 percent of children and another in 73 to 88 percent of children.

Messengers to the 2014 Southern Baptist Convention approved a resolution regarding transgender identity that "affirm[ed] God's good design that gender identity is determined by biological sex and not by one's self-perception." The resolution "regard[ed] our transgender neighbors as image-bearers of Almighty God and therefore condemn[ed] acts of abuse or bullying committed against them."

The resolution also said, "We invite all transgender persons to trust in Christ and to experience renewal in the Gospel."

Tom Strode is Washington bureau chief for Baptist Press, the Southern Baptist Convention's news service.

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