3,000 healthcare workers sue Biden admin. over mandate forcing them to perform sex-change surgeries

California Attorney General Xavier Becerra speaks outside the U.S. Supreme Court in Washington, D.C., November 12, 2019.
California Attorney General Xavier Becerra speaks outside the U.S. Supreme Court in Washington, D.C., November 12, 2019. | SAUL LOEB/AFP via Getty Images

Two associations representing 3,000 medical professionals and an individual doctor based in Tennessee have filed a lawsuit against the Biden administration’s Transgender Mandate, arguing that it violates federal conscience protection laws.

The American College of Pediatricians and the Catholic Medical Association, along with Dr. Jeanie Dassow of Chattanooga, filed the suit last week in the U.S. District Court for the Eastern District of Tennessee at Chattanooga.

At issue in the court case is the HHS’ current interpretation of Section 1557 of the Affordable Care Act, which bars sex discrimination, to include requiring doctors to perform elective gender-transition procedures, including cosmetic surgeries such as double mastectomies, phalloplasties and orchiectomies (testicle removal).  

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Defendants named in the suit include the U.S. Department of Health & Human Services, HHS Secretary Xavier Becerra, the HHS Office for Civil Rights and Robinsue Frohboese, acting director and principal deputy in the HHS OCR.

“This case challenges whether the federal government can make medical doctors perform gender-transition surgeries, prescribe gender-transition drugs, and speak and write about patients according to gender identity, rather than biological reality—regardless of doctors’ medical judgment or conscientious objections,” noted the introduction of the lawsuit.

The suit argues that the HHS rule, known as the Transgender Mandate, violated the Administrative Procedure Act, the Religious Freedom Restoration Act, as well as the First Amendment’s Free Speech and Free Exercise of Religion Clauses.

HHS first announced its revised interpretation of the statute in May. The so-called Transgender Surgery Mandate was first implemented by HHS under former President Barack Obama in 2016, but the Trump administration repealed the mandate in 2018.

“It is the position of the Department of Health and Human Services that everyone – including LGBTQ people – should be able to access health care, free from discrimination or interference, period,” said Becerra in the announcement.

Becerra warned that fears over discrimination based on sexual orientation or gender identity “can lead individuals to forgo care, which can have serious negative health consequences.”

Alliance Defending Freedom Senior Counsel Ryan Bangert, who is helping to represent the plaintiffs, said in a statement released Thursday that the HHS was “grossly overreaching its authority” by issuing the mandate.

“Forcing doctors to prescribe transition hormones for 13-year-olds or perform life-altering surgeries on adolescents is unlawful, unethical, and dangerous,” stated Bangert.

“Our clients are rightfully objecting on medical, ethical, religious, and conscientious grounds to this unlawful government mandate to provide gender-transition procedures.”

To justify their interpretation, HHS pointed to the 2020 U.S. Supreme Court case Bostock v. Clayton County, in which the high court ruled 6-3 that Title VII of the Civil Rights Act of 1964 applied to sexual orientation and gender identity, even though neither category is specifically mentioned in the federal law: “The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation.” 

Justice Neil Gorsuch wrote the majority opinion for the Bostock decision, concluding that “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions.” 

“That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” he continued.

Over the years, the Transgender Mandate has been the subject of multiple lawsuits, including one filed by the Franciscan Alliance, a network of Catholic hospitals in Texas.

On Aug. 9, U.S. District Judge Reed O’Connor of the Northern District of Texas, appointed to the bench by former President George W. Bush, granted a permanent injunction against the HHS mandate on behalf of the Franciscan Alliance.

O’Connor concluded that the mandate violated RFRA by unjustly harming the plaintiffs' religious practices. He specifically contended that the mandate used threats of “fines and civil liability” to “coerce them to perform and provide insurance coverage for gender-transition procedures and abortions.”

“When the RFRA violation is clear and the threat of irreparable harm is present, a permanent injunction exempting Christian Plaintiffs from that religion-burdening conduct is the appropriate relief,” he added.

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