Lawyers representing two Catholic organizations argued Wednesday for a preemptive lawsuit against transgender care mandates, asserting in appellate court that federal law should not compel faith-based health care providers and insurers to cover “gender transition procedures.”
An attorney for the Religious Sisters of Mercy made his argument before a three-judge panel of the U.S. Court of Appeals for the 8th Circuit against the Department of Health and Human Services.
The lawsuit says that HHS’ planned enforcement of the Affordable Care Act’s Section 1557, which bars discrimination on the basis of “gender identity,” would compel doctors and hospitals to perform surgical procedures on transgender patients even when the operations are potentially harmful.
The department “promised to ‘vigorously enforce’ Section 1557. Its recent notification of enforcement just months ago said, ‘We will enforce Section 1557 to prohibit gender identity discrimination,’” said attorney Luke Goodrich of the religious liberty law firm Becket, which is representing the Sisters of Mercy.
Mr. Goodrich said that HHS has said it would go after those with religious objections to providing drugs, surgeries and counseling to individuals who wish to “transition” to another gender and asked the panel to uphold a January 2021 U.S. District Court ruling blocking such requirements.
Attorney Ian Speir is representing the Catholic Benefits Association, a lobbying group whose Catholic Insurance Co. unit provides health insurance for its members and is included in the lawsuit as a plaintiff.
Mr. Speir of the Nussbaum Speir Gleason law firm in Colorado Springs, Colorado, told the panel that the Equal Employment Opportunity Commission is poised to mandate payment for transgender medical procedures under Title VII of the Civil Rights Act, and he asked the court to block those directives, as well.
But Justice Department attorney Ashley A. Cheung, representing both agencies, said they “have not in fact taken a position either way on whether objecting religious entities are required to provide and cover transition services.”
Neither HHS nor EEOC has “ever taken any enforcement action against any entity for declining to cover transition services, let alone an objective religious entity,” she added.
However, Ms. Cheung said “the government is not in a position to disavow any future enforcement” because the agencies are “in the process of considering these complicated issues.” She said the 1993 Religious Freedom Restoration Act would be considered in any future enforcement actions.
“There is no credible threat of enforcement here,” Ms. Cheung said.
Mr. Goodrich responded that there is a “constitutional interest” in considering a pre-enforcement injunction, that HHS is allowed to enforce a mandate under the ACA and “that there’s a credible threat of enforcement.”
“HHS has clearly stated its position in the 2016 rule, saying that categorical refusals to perform or ensure gender transitions — which is what our clients do — is unlawful on its face,” he said.
Said Mr. Speir: “Title VII bars gender identity discrimination. … [I]t’s been the EEOC’s unwavering position since at least 2012. And the EEOC has enforced that specific interpretation in the context that’s at issue here by requiring employers to cover gender transition services in their health plans.”
The panel comprised three Republican-appointed judges: Chief Judge Lavenski R. Smith and Judge Raymond W. Gruender were appointed by President George W. Bush; Judge Jonathan A. Kobes by President Donald Trump.
The judges did not say when they would issue a ruling.
Correction: An earlier version of this report incorrectly spelled attorney Ian Speir’s surname and misidentified his law firm.
• Mark A. Kellner can be reached at mkellner@washingtontimes.com.
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