Biden administration appeals to keep transgender mandate in place

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The Biden administration is appealing to keep in place a mandate that doctors and hospitals provide gender-transition surgeries, regardless of their conscientious beliefs.

On Tuesday, the legal group Becket – which represents Catholic doctors and hospitals in their case against the “transgender mandate” – reported that the administration had filed an appeal to keep the mandate in place.

#BREAKING: The Biden Admin just filed an appeal seeking to force religious doctors and hospitals to perform potentially harmful gender-transition procedures against their conscience and professional medical judgment,” stated Luke Goodrich, VP and senior counsel at Becket, on Twitter on Tuesday.

The Obama administration in 2016 first issued the mandate, interpreting a nondiscrimination provision in the Affordable Care Act (ACA) to require doctors and hospitals to provide gender-transition surgeries upon the referral of a mental health professional.

The mandate did not include exemptions for religion and conscience, thus applying even to doctors and hospitals with conscientious or even medical opposition to performing gender-transition surgeries.

As almost all doctors receive Medicare and Medicaid funds, the mandate as attached to federal funding would apply almost universally, Becket argued.

“The Biden Admin says it can punish doctors and hospitals for ‘sex discrimination’ unless they perform controversial gender-transition procedures,” Goodrich tweeted on Tuesday.

More than 19,000 healthcare professionals, nine states, and several religious organizations filed two lawsuits against the mandate; in December 2016, two federal courts placed an injunction on the mandate.

Two more federal district court judges ruled against the mandate in 2019 and 2021. In January, a judge in North Dakota granted permanent injunctive relief to Catholic doctors, hospitals, clinics, and benefits groups that sued over the mandate.

On Tuesday, the Biden administration appealed that ruling, asking that the mandate stay in effect. “This is bad for patients, doctors, and religious liberty,” Goodrich said.

Goodrich added that “we look forward to another ruling that protects patients, aligns with current medical research, and ensures doctors aren’t forced to violate their religious beliefs and professional medical judgment.”

In another ongoing case against the mandate, the Fifth U.S. Circuit Court of Appeals on April 15 sent the case back to a lower court, instructing that the district court decide whether the mandate could be permanently stopped. The North Texas district court had previously granted relief to plaintiffs against the mandate; the Fifth Circuit noted new developments in the matter, including President Biden's executive order redefining "sex" in federal civil rights law to include sexual orientation and gender identity.

Becket represents a coalition of doctors and hospitals – including Catholic doctors, hospitals, and benefits groups – opposed to the mandate.

“The plaintiffs are religious doctors, hospitals, and clinics who joyfully serve ALL patients regardless of sex or gender identity,” Goodrich said. “They also provide millions of dollars in free and low-cost care to the elderly, poor, and underserved--care that is jeopardized by the government’s attempt to punish them with multi-million dollar penalties.”

Section 1557 of the ACA prohibits discrimination in health care on the basis of sex; the Obama administration interpreted that to prohibit discrimination on the basis of sexual orientation, gender identity, and pregnancy – thus forbidding the denial of abortions and gender-transitioning procedures in health care.

The Trump administration did establish conscience protections for doctors opposed to the mandate in 2020, but a federal court placed an injunction on that rule.

This article was updated on April 21.

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