By Tom Ozimek
A federal appeals court has permanently blocked the Biden administration’s bid to force doctors and insurers to perform or pay for gender-transition procedures even if they object on grounds of conscience and medical judgment, with the court basing its decision on constitutional protections of religious freedom.
The U.S. Court of Appeals for the 8th Circuit issued a unanimous ruling (pdf) on Dec. 9 blocking the controversial U.S. Department of Health and Human Services (HHS) transgender mandate.
Issued in 2016, the mandate interpreted the Affordable Care Act in a way that required doctors to perform gender-transition procedures on any patient, including children, even if the doctor was convinced the procedure could harm the patient.
The mandate also required the vast majority of private insurance companies and many employers to cover the costs of gender-transition therapy or face penalties.
The HHS’s own panel of medical experts acknowledged that gender-transition procedures can be harmful and in many cases not medically justified, with HHS determining that Medicare and Medicaid should not be forced to cover such procedures.
Research has shown that gender-transition procedures carry significant risk for children, including loss of bone density, heart disease, and cancer.
‘Do No Harm’
Religious organizations and states sued to block the mandate, with the Becket Fund for Religious Liberty and the North Dakota Attorney General’s office representing some of the groups.
“The federal government has no business forcing doctors to violate their consciences or perform controversial procedures that could permanently harm their patients,” Luke Goodrich, vice president and senior counsel at Becket, said in a statement.
“This is a common-sense ruling that protects patients, aligns with best medical practice, and ensures doctors can follow their Hippocratic Oath to ‘do no harm,’” he added.
Becket filed the lawsuit in 2016 on behalf of a coalition of Catholic hospitals, a Catholic university, and Catholic nuns who run health clinics for the poor.
A federal district court blocked the mandate from taking effect, leading the Biden administration to appeal the case to the 8th Circuit, which in its Dec. 8 ruling concluded that the lower court “correctly held that ‘intrusion upon the Catholic Plaintiff’s exercise of religion’” justified a permanent injunction.
The Biden administration has 90 days to appeal the decision to the U.S. Supreme Court or 45 days to ask the 8th Circuit court to rehear the case.
There was no immediate reaction from the White House to the ruling.
Goodrich said in a call with reporters that he doubts the “Biden administration will pursue either of these avenues.”
The case is Religious Sisters of Mercy v. Becerra, case No. 21-1890.
Besides the Religious Sisters of Mercy v. Becerra, Becket also represents plaintiffs in a separate but related case initially filed in the U.S. District Court for the Northern District of Texas.
In that case, known as Franciscan Alliance v. Becerra, the Texas court issued a preliminary ruling in December 2016 that the mandate was a likely violation of religious freedom but stopped short of issuing an order that would have blocked the policy from being applied.
After an appeal by the challengers seeking a permanent injunction to block the mandate, the court agreed in 2021 to grant permanent relief to doctors and hospitals.
The Biden administration appealed but lost.
On Aug. 26, 2022, the 5th Circuit Court of Appeals affirmed the district court’s decision and issued a permanent injunction that allows doctors and hospitals to decide whether to carry out gender-transition procedures based on their conscience and medical judgment.
“The government’s attempt to force doctors to go against their consciences was bad for patients, bad for doctors, and bad for religious liberty,” Goodrich said in a statement.
The Biden administration has made transgender issues a key policy pillar, advocating strongly on behalf of people seeking gender-transition procedures and therapies and opposing policies like so-called “conversion therapy,” as it’s dubbed by critics, and “change-allowing therapy,” as it’s often referred to by advocates.
This type of therapy is basically counseling that helps people who want to change their sexual orientation or who want to de-transition after earlier changing their gender identity or expression.
“The phrase ‘Conversion therapy’ is provocative, pejorative, and ill-defined,” wrote André Van Mol, a board-certified family physician and co-chair of the Committee on Adolescent Sexuality of the American College of Pediatricians.
“It is a jamming tactic that combines both anti-religious allusions (‘conversion,’ implicitly forced) along with intimidation against therapists who allow patient-directed investigation of possible change,” Van Mol added.
Attack on ‘Conversion Therapy’
In a 10-page executive order issued on June 15, 2022, President Joe Biden pledged to defend the LGBT community from various forms of discrimination and expressed opposition to “conversion therapy.”
The order, which was accompanied by a seven-page explanation, describes conversion therapy as “efforts to suppress or change an individual’s sexual orientation, gender identity, or gender expression.”
In the order, Biden called for an administration-wide push to eliminate the use of such therapy by therapists across the nation, describing the practice as “harmful” and “discredited” and that it “can cause significant harm, including higher suicide rates.”
Twenty states and more than 100 municipalities have banned “conversion therapy” for minors.
The American Psychological Association, in a report released in 2009, stated that therapies used to try to change sexual orientation can be harmful and that most don’t succeed.
But some in the medical community have criticized reliance on the American Psychological Association’s report in attacks on change-allowing therapy.
“The habitually misquoted American Psychological Association’s Task Force’s 2009 report (on page 43) stated specifically that modern change-allowing therapy ‘since 1978’ was ‘nonaversive,’ meaning free of infliction of pain or shame,” Van Mol wrote in an email to The Epoch Times.
Van Mol said the Task Force’s report explicitly states on pages 43 and 82 that research meeting scientific standards didn’t allow attributing harm or help, inefficacy or efficacy, to change-allowing therapy.
“Banning counseling choice for gender dysphoria condemns already at-risk sexual minority youth to experimental and unproven hormonal and surgical gender-affirming therapy (GAT), which permanently and prematurely medicalizes children for a condition that overwhelmingly resolves by adulthood,” he said.
Van Mol said GAT hasn’t been proven safe and effective. It doesn’t reduce suicides and isn’t the international standard of care for gender dysphoric minors.
‘State-Sanctioned Viewpoint Discrimination’
Elizabeth Woning of California is a co-founder of the Changed Movement, an international network of people who no longer identify as LGBT.
“So-called conversion therapy is a pejorative phrase that is being used to promote state-sanctioned viewpoint discrimination,” Woning told The Epoch Times in an earlier interview. “LGBTQ-identifying people deserve the right to follow their conscience, even when it means receiving support to diminish unwanted sexual feelings.”
“Such bans dramatically oversimplify the lived experience of anyone who identifies as LGBTQ. They offer only one route for people to follow, no matter their faith or conscience,” she said.
Nevada therapist Robert Vazzo told The Epoch Times that he’s opposed to the Biden administration’s pushback against “conversion therapy,” a concept he said is not clearly defined and so opens the door to government overreach and abuse.
“Don’t ban anything that is poorly defined and can lead to a witch hunt among therapists whose world view regarding homosexuality is different from the mainstream,” he said.
Vazzo said the courts have consistently affirmed a therapist’s right to give his or her opinion during a session as part of free speech.
Steven Kovac contributed to this report.