Monday Memo — How The Transgender Mandate Will Affect Faith-Based Doctors

My friend, Jonathan Imbody, who serves as the Vice President for Government Relations for the Christian Medical and Dental Association, has done a masterful job of shining a spotlight on the Obama administration’s newly enacted transgender mandate. He explains what we faith-based healthcare professionals (and faith-based health institutions) need to know about this and how we can defend ourselves.

Jon Imbody

What happened when?
The transgender mandate, promulgated by the U.S. Department of Health and Human Services (HHS) under the assumed authority of the Affordable Care Act (Obamacare), went into effect July 18, 2016. A new website explains what the mandate requires, why it violates the law and what conscientious objectors can do to protect their rights.

Whom does the rule target?
HHS recently mandated that healthcare professionals must perform gender transition procedures on any child referred by a mental health professional, even if the physician believes the treatment or hormone therapy could harm the child.

Healthcare professionals who follow the Hippocratic Oath to act in the best interest of their patient instead of this new mandate can face severe consequences, including losing their jobs. The transgender mandate also requires virtually all private insurance companies and many employers to cover gender transition procedures or face stiff penalties and legal action.

What do they have to do?
The new rule includes no religious exemption; it will have significant impacts on religious healthcare professionals:

  • It will require healthcare professionals to perform certain gender transition services, including elective hysterectomies or cross-hormone therapy.
  • It will require healthcare professionals to refer individuals for gender transition services.
  • It will require healthcare professionals to provide insurance coverage for gender transition services, some of which include sterilization procedures.
  • It may require healthcare professionals to provide coverage for abortion.
  • It will require healthcare professionals to open facilities, such as showers, bathrooms or locker rooms, to employees based on gender preference.
  • It will expose healthcare professionals to hostile work environment lawsuits unless healthcare professionals refer to individuals by their preferred name or gender pronoun.

What happens to those who do not comply?
A healthcare professional not in compliance risks:

  • Losing HHS funding
  • Being subjected to federal enforcement proceedings
  • Being subjected to false claims liability
  • Being sued for damages and attorneys’ fees by patients, employees or their dependents

What does the evidence show regarding gender transition procedures?
Research shows significant risks are associated with gender transition procedures in childhood. Again, that is why HHS’s own medical board advised against requiring coverage of gender transition surgical procedures under Medicare and Medicaid.

Along with physical impacts like heart conditions, increased cancer risk and loss of bone density, the peer-reviewed longitudinal studies of children with gender dysphoria (that HHS accepted as valid) found that fewer than one in four children referred for gender dysphoria continued to experience that condition into adulthood. Some grew out of it, but many of the children ended up realizing they were not transgender but instead gay or lesbian.

The Transgender Mandate virtually guarantees that healthcare professionals will be forced—against their medical judgment—to perform procedures aimed at altering the gender of children who are not actually transgender. Medical science is on the side of any physician who feels that in a specific case it would be a mistake to begin gender transition procedures on a child.

What about medical judgment?
The mandate does not allow space for the doctor’s medical judgment and does not even allow the doctor to refer the child to another doctor, even one more qualified, or for a hospital to find a doctor willing to perform the procedure. Any refusal by a qualified and practicing doctor to perform such a procedure is a violation of the Mandate.

To be clear, this is not a question of access to care but of forcing a political ideology on healthcare professionals against their medical judgment.

Is anyone moving to stop this?
In August 2016, Christian Medical & Dental Associations; the states of Texas, Wisconsin, Nebraska, Kentucky and Kansas; North Texas State Hospital; Franciscan Alliance, Inc.; and Specialty Physicians of Illinois, LLC filed a lawsuit against HHS in the U.S. District Court for the Northern District of Texas.

The Becket Fund for Religious Liberty, which boasts an undefeated record in Supreme Court cases, represents the plaintiffs. The lawsuit asks the court to do the following:

  1. Declare that the challenged regulation is invalid under the Administrative Procedure Act;
  2. Declare that the challenged regulation is invalid under the Religious Freedom Restoration Act;
  3. Declare that the challenged regulation is invalid under the First Amendment to the United States Constitution;
  4. Declare that the challenged regulation is invalid under the Fifth Amendment of the United States Constitution;
  5. Declare that the challenged regulation is invalid under the Fourteenth Amendment of the United States Constitution;
  6. Issue a permanent injunction enjoining defendants from enforcing the challenged regulations against plaintiffs, those acting in concert with plaintiffs and all states;
  7. Award actual damages;
  8. Award nominal damages;
  9. Award plaintiffs the costs of this action and reasonable attorney’s fees; and
  10. Award such other and further relief as it deems equitable and just.

If you are a healthcare professional or institution impacted by the HHS transgender mandate, we encourage you to use this webpage to present your views confidentially (or publicly, if you prefer).

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