As churches and religious hospitals will soon be required to cover or perform transgender reassignment surgeries, a lawyer who represents numerous Catholic dioceses and Christian denominations is concerned that the Obama administration's questionable legal interpretations on gender identity won't be easily changed through regulatory action by the Donald Trump administration.
A new Department of Health and Human Services mandate requires health care providers, insurers and employers to cover or perform transgender health services, such as transgender reassignment surgeries and other treatments for gender dysphoria, on the grounds that denying such treatment would be sex discrimination. Additionally, the mandate will also require all group insurers to provide abortions, thus forcing a number of faith-based employers to be complicit in providing abortion coverage.
Opponents of the mandate warn that faith-based hospitals, schools, charities and employers will not be given a religious exemption from the mandate and could be at risk of losing federal Medicare and Medicaid funding, being fined, sanctioned or criminally prosecuted if they uphold their religious convictions.
Although many are holding onto hope that President-elect Trump and his HHS nominee, Rep. Tom Price, will take swift regulatory action to undo Obama's HHS abortion and comprehensive transgender services (ACTS) mandate, attempts to undo the effects of the Obama administration's interpretation that gender identity is covered under "sex" nondiscrimination protections in civil rights law could be much trickier than conservatives anticipate.
Martin Nussbaum, a lawyer who represents various Catholic archdioceses, Protestant denominations, ministries, charities and many other religious institutions spoke with reporters on a conference call Wednesday about the impact that the ACTS mandate will have.
During the call, Nussbaum was asked if he thinks the Trump administration will be able to simply overturn ACTS mandate through a regulatory order, just as the Obama administration created the mandate through regulatory action.
"The short answer is that we don't think it can," Nussbaum, who is the co-chair of the Religious Institutions Group at the law firm Lewis, Roca, Rothgerber and Christie, said.
Although Trump and his appointees can propose new regulations to cancel out the ACTS mandate and other transgender guidelines and directives issued by Obama's federal agencies, Nussbaum explained that appeals courts and the U.S. Equal Employment Opportunity Commission have set a troubling precedent of deferring to the Obama administration's legal interpretation of gender identity.
"All those things and some more can be reversed by the executive branch but since the executive branch has started — contrary to decades of congressional action — interpreting sex in these various ways to mean gender identity, some courts and the EEOC, acting in a quasi-judicial capacity, have entered decisions finding this."
Nussbaum pointed to how the Fourth Circuit Court of Appeals ruled in April in favor of a transgender high school student who sued his Virginia school district for the right to use bathrooms consistent with his gender identity. The court ruled that the administration has authority to interpret its own regulations.
However, the Supreme Court has issued a temporary stay on the court's ruling and has taken on the case.
"That case was decided by three Fourth Circuit judges, two of whom were appointees by the incumbent president," Nussbaum explained. "What they looked at were regulations issued by federal departments that said that sex means gender identity and they said, 'We must defer as the Obama appointees, to the Obama agencies that announced that sex means this.' And therefore, it became law."
Nussbaum stated that the 4th circuit decision shows that there is "something of an echo chamber of legal logic."
In continuing the "echo chamber," a federal court ruled in September that a transgender fifth grader in Ohio must be allowed to use the girl's bathroom. And the Sixth Circuit Court of Appeals ruled last week to allow the Ohio fifth grader to continue to use the girl's bathroom.
"That precedent, and there are some others as well, cannot be undone simply by an executive action," Nussbaum warned.
The only way for the ACTs mandate and other mandates like it to be entirely reversed is through an injunction won in court.
In August, five Republican states and religious health organizations representing over 17,000 physicians filed a federal lawsuit that claims that the administration's transgender health services mandate will force doctors to act against their best medical judgement and religious beliefs.
"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," the lawsuit explains. "Thus, the regulation represents a radical invasion of the federal bureaucracy into a doctor's medical judgment."
In October, the American Civil Liberties Union of Texas and the River City Gender Alliance intervened in the case to oppose the lawsuit against the mandate.
According to the Becket Fund for Religious Liberty, the case is being heard by a U.S. District Court judge in Texas named Reed O'Connor. O'Connor is expected to make a decision before Jan. 1, when the mandate is scheduled to take effect for many health providers.
"We made the argument that it's incredibly improper for the government to invade the important doctor-patient relationship, and it shouldn't be mandating doctors to perform procedures against their best medical judgement," Mark Rienzi, senior counsel at Becket Fund, told WND. "Personal medical decisions about the welfare of a child should be free from political agendas and interference by bureaucrats."
O'Connor could favor those arguing against the mandate because he is the same judge who ruled in August to block the Obama administration from enforcing its guidance to public schools that tries to coerce school districts to allow transgender students to use bathrooms and locker rooms consistent with their gender identity or risk losing funding.
Ironically, the two major insurance plans that are exempted from the Obama transgender mandate are Medicaid and Medicare. Before the regulation was passed in May, HHS researchers found that "clinical evidence for gender reassignment surgery was inconclusive for the Medicare population at large."
"The government bureaucrats are ignoring the scientific conclusions of their own agency," Lori Windham, a lawyer with the Becket Fund, told The Christian Post in August. "It is deeply troubling that the government could tell doctors what they are supposed to do when the government won't impose those same rules on itself."
Despite the rulings by the appellate courts that favored the transgender students, it should be noted that conservatives have so far been successful in their federal lawsuit against the Education and Justice Departments' joint transgender guidance for public schools, considering O'Connor reaffirmed his nationwide injunction against the guidance in October.
As the Obama administration has appealed O'Connor's ruling to the Fifth Circuit Court of Appeals, only time will tell if that appellate court reacts in the same way that the Fourth and Sixth have.