Federal Court Protects Children and Doctors from Harmful Transgender Regulation

The Story: Days before it was to take effect, a federal court in Texas issued an injunction against a regulation that would have forced doctors to perform gender transition procedures—including on children—even when it violated their conscience.

The Background: In May 2016, the Department of Health and Human Services (HHS) issued a new rule to the Affordable Care Act (aka Obamacare) that “prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities.” The Obama administration claims that “gender identity” is synonymous with “sex” (i.e., a person’s biological sex), and the new rule explains that the “gender identity spectrum includes an array of possible gender identities beyond male and female.”

Because of this interpretation the new rule requires doctors to provide, and insurance companies to pay, for a broad range of procedures intended to affect “gender transition.” As the regulation states, “We believe that it is important to ensure that civil rights protections are extended to transgender individuals to afford them equal access to health coverage, including for health services related to gender transition.” The regulation also notes that a conscience exemption for religious reasons was considered but rejected as unnecessary.

In response to this rule, three physician and hospital groups (Franciscan Alliance, Specialty Physicians of Illinois, and the Christian Medical & Dental Associations) joined eight states (Texas, Wisconsin, Mississippi, Nebraska, Kentucky, Louisiana, Arizona, and Kansas) in filing a lawsuit against HHS.

According to the lawsuit, “Under the new Regulation, a doctor must perform these procedures even when they are contrary to the doctor’s medical judgment and could result in significant, long-term medical harm.” Additionally, because the rule contains no age limitation, the plaintiffs in the lawsuit expressed concern that it may require health insurance coverage of transitions for children, even though transition-related procedures are viewed by many in the medical community as harmful—a view held even by HHS’s own medical experts.

On Saturday, U.S. District Judge Reed O'Connor agreed the concerns were valid and issued a preliminary injunction. Although the decision will be appealed, the injunction prevented the rule from going into effect at its scheduled date of activation, January 1, 2017.

Why It Matters: The injunction is a significant (albeit temporary) victory for religious liberty, rights of conscience, and the protection of children.

Had the rule gone into effect, Christian doctors could have lost their jobs or been sued for discrimination for refusing to perform gender transition procedures on children. The rule would have also required most private health insurance policies to cover transition procedures for minors. Two major insurance plans, however, were exempted from this HHS’s rule. Those two plans are also the ones run by HHS: Medicare and Medicaid. As TransgenderMandate.org notes,

Why are the government’s plans exempt? Most children referred for gender dysphoria grow up not to be transgender, and the government’s own panel of medical experts concluded that these gender transition procedures can beharmful.

Medicare and Medicaid don't even have to pay for these procedures because HHS’s medical experts believe gender transition procedures can be harmful. But HHS’s political appointees have pushed through a rule that will ruin doctors whose best medical judgment is that they cannot perform the very same procedures because it will harm the child under their care.

Studies have shown that up to 93 percent of children referred for gender dysphoria (i.e., feeling one's emotional and psychological identity as male or female to be opposite to one's biological sex) grow out of it naturally by the time they reach adolescence or adulthood. By putting them through the transition process, though, the children would be at risk for medical problems later in life. The Institute of Medicine of the National Academies found that transgender individuals “may be at increased risk for breast, ovarian, uterine, or prostate cancer as a result of hormone therapy.”

“This is a common-sense ruling,” said Lori Windham, senior counsel at Becket Law, which filed a lawsuit against the regulation. “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. Today’s ruling ensures that doctors’ best medical judgment will not be replaced with political agendas and bureaucratic interference.”