Federal Court Blocks Obamacare Mandate Forcing Doctors to Perform Transgender Surgery

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
January 20, 2021 Updated: January 20, 2021

A federal court has ruled to protect some doctors and health care providers from being penalized for refusing to perform gender transition procedures on the grounds of religious belief.

In a decision a day before Joe Biden took the oath of office, United States District Court Chief Judge Peter D. Welte from North Dakota granted a request to block the Department of Health and Human Services (HHS) and the Equal Employment Opportunity Commission (EEOC) from enforcing an Obamacare mandate that compels medical professionals and healthcare providers to perform gender transition services.

In 2016, the HHS issued a rule interpreting Section 1557 of the Patient Protection and Affordable Care Act (ACA), which prohibits certain forms of discrimination in healthcare, including sex discrimination.

The rule prohibited insurers and third party administrations from offering or administer health plans with gender-transition exclusions. The regulation also prohibited a healthcare provider from refusing to offer medical services for gender transitions if that provider offered comparable services to others.

The rule did not provide an exemption for religious grounds, arguing that Title IX’s religious exemptions only apply to an educational context. The department at the time also argued that “a blanket religious exemption could result in a denial or delay in the provision of health care to individuals and in discouraging individuals from seeking necessary care.”

The department instead explained that it would consider religious exemptions on an individualized case-by-case basis for claims under the 1993 Religious Freedom Restoration Act (RFRA).

An order of Catholic nuns, a Catholic university, and Catholic healthcare organizations challenged the mandate under the RFRA, while the state of North Dakota joined the lawsuit to challenge the mandate under a federal law known as the Administrative Procedure Act that governs rulemaking by administrative agencies.

The mandate was previously put on hold by a federal judge in North Dakota and was struck down in 2019 by another federal court in Texas. Under the Trump administration, HHS passed a new rule aimed at walking back the mandate. However, the 2020 rule was blocked by separate challenges in other courts.

Welte said in his decision that the plaintiffs have shown “an entitlement” for injunctive relief, saying that a violation under the RFRA is comparable to the deprivation of a First Amendment right.

“The Catholic healthcare entities’ refusal to perform or cover gender-transition procedures is predicated on an exercise of their religious beliefs protected by the First Amendment,” Welte said (pdf).

“Absent an injunction, [plantiffs] will either be ‘forced to violate their sincerely held religious beliefs’ by performing and covering gender-transition procedures ‘or to incur severe monetary penalties for refusing to comply,'” he added.

Attorney Luke Goodrich, senior counsel at Becket, a religious organization representing the plaintiffs, said the court’s decision “recognizes our medical heroes’ right to practice medicine in line with their conscience and without politically motivated interference from government bureaucrats.”

“These religious doctors and hospitals provide top-notch medical care to all patients for everything from cancer to the common cold,” Goodrich said in a statement.

“All they’re asking is that they be allowed to continue serving their patients as they’ve done for decades, without being forced to perform controversial, medically unsupported procedures that are against their religious beliefs and potentially harmful to their patients. The Constitution and federal law require no less.”

During his campaign, Biden had vowed to push LGBTQ rights as part of his agenda, including coverage for care related to gender transitioning and surgery. He signed an executive order on his first day as president to prevent discrimination on the basis of gender identity and sexual discrimination.

Xavier Becerra, who has been tapped by Biden to lead the HHS, had previously argued in favor of using taxpayers’ money to provide transgender individuals in North Carolina with coverage for gender transitioning surgery and treatment.

Some religious liberty advocates and people of faith are worried that the religious freedom protections implemented by the Trump administration could be rolled back under a Biden administration.

Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.