DOJ Abandons Effort to Force Religious Hospitals to Perform Gender Transitions

The Biden administration has declined to appeal an Eighth Circuit ruling that barred the administration from requiring religious hospitals to perform gender transition procedures. The ruling marks the Biden administration’s second loss at a U.S. circuit court in an administrative campaign to force religious hospitals to provide and insure gender transition procedures against their beliefs that dates back to 2016.

In Sisters of Mercy v. Becerra, a panel of the Eighth Circuit ruled on December 9, 2022 that the Department of Health and Human Services (HHS) and the Equal Employment Opportunity Commission (EEOC) may not interpret “antidiscrimination laws in a way that compels [religious entities] to perform and provide insurance coverage for gender transitions.” A Catholic hospital association had challenged the administration’s application of several rules, which they argued would force them to violate their religious beliefs.

“In 2016, the federal government reinterpreted the Affordable Care Act to require doctors and hospitals across the country to perform controversial gender-transition procedures, including on children, even when doing so would violate doctors’ consciences and could harm the patient,” described Becket Fund, the religious freedom legal firm that represented both Catholic hospital associations.

Among other effects, the rule would require health care practitioners to prescribe gender transition hormones to patients — such as estrogen for males and testosterone for females — so that their bodies would begin to develop physical characteristics associated with the opposite sex, such as facial hair for females or wide hips for males. It would also require health care practitioners to perform gender transition surgeries that amputate healthy body parts and replace them with dysfunctional imitations of body parts belonging to the opposite sex.

Litigation proceedings were halted during the Trump administration, which eventually revised the guidance — although other district courts blocked its 2020 rule. However, in 2021, the Biden administration reversed the Trump-era rule and reinstituted requirements similar to those found in the 2016 rule.

The court upheld a district court injunction forbidding HHS and EEOC from enforcing the rules against the Catholic hospitals, finding it was likely they would do so. The Department of Justice (DOJ) had until June 20 to file an appeal with the Supreme Court, and that date came and went without an appeal.

The Eighth Circuit’s ruling heavily quoted from a Fifth Circuit ruling issued months earlier in Franciscan Alliance v. Becerra, in which the Fifth Circuit ruled in favor of another Catholic hospital association on the same issue. Both circuit courts agreed that the administrative rules would violate the federal Religious Freedom Restoration Act (RFRA). The DOJ also declined to appeal that earlier decision.

“After multiple defeats in court, the federal government has thrown in the towel on its controversial, medically unsupported transgender mandate,” said Becket vice president and senior counsel Luke Goodrich.

Goodrich argued that the rule’s enforcement attacked the ethics of the medical profession, not to mention their patients. “Doctors take a solemn oath to ‘do no harm,’ and they can’t keep that oath if the federal government is forcing them to perform harmful, irreversible procedures against their conscience and medical expertise,” he said. “These religious doctors and hospitals provide vital care to patients in need, including millions of dollars in free and low-cost care to the elderly, poor, and underserved.”

Most importantly, Goodrich added, “This is a win for patients, conscience, and common sense.”