The recent (31 Dec 2016) decision of US Federal District Court Judge O’Connor in Franciscan Alliance Inc v Burwell (ND TX, Case 7:16-cv-00108-O; Dec. 31, 2016) (thanks to “Religion Clause” for the report and information) is a significant one. In short, the Obama administration had used the prohibition on “sex discrimination” in US Federal law to enact an administrative regulation requiring Christian health care providers (and some State governments) to provide transgender “transition” procedures, and abortions, to all patients, arguing that denying this coverage amounted to sex discrimination.

This highly questionable interpretation has now been overturned by this very significant decision; even though only a Federal district court judge, it seems to be binding across the whole of the US unless overturned.
Judge O’Connor gives a clear and helpful review of the law. As he says, there seems little doubt that when Congress used the word “sex” in the sex discrimination statute, “Title IX”, picked up by the relevant health care laws, it meant to refer to the binary division between men and women, and did not intend to refer to recent developments in “gender fluidity”. So see page 31:

“The text of Section 1557 is neither silent nor ambiguous as to its interpretation of sex discrimination. Section 1557 clearly adopted Title IX’s existing legal structure for prohibited sex discrimination. 42 U.S.C. § 18116(a). For the reasons set out more fully below, this Court has previously concluded: the meaning of sex in Title IX unambiguously refers to “the biological and anatomical differences between male and female students as determined at their birth.” Texas v. United States, No. 7:16-cv-00054, 2016 WL 4426495, at *14 (N.D. Tex. Aug. 21, 2016); see Johnston v. Univ. of Pittsburgh of Com. Sys. of Higher Educ., 97 F. Supp. 3d 657, 674 (W.D. Pa. 2015), appeal dismissed (Mar. 30, 2016) (“Title IX does not prohibit discrimination on the basis of transgender itself because transgender is not a protected characteristic under the statute.”); see infra III.B.1.a.ii. In promulgating the Rule, HHS revised the core of Title IX sex discrimination under the guise of simply incorporating it.”

So the Rule was actually contrary to the Congressional statute, not a clarification. In addition, Title IX itself provides an exemption for religious groups which the new rule did not include. See p 37:

“Failure to incorporate Title IX’s religious and abortion exemptions nullifies Congress’s specific direction to prohibit only the ground proscribed by Title IX. That is not permitted. Corley, 556 U.S. at 314. By not including these exemptions, HHS expanded the “ground prohibited under” Title IX that Section 1557 explicitly incorporated. See id. The Rule’s failure to include Title IX’s religious exemptions renders the Rule contrary to law.”

There is also a helpful summary at p 9 of why many religious bodies object to gender transition procedures:

“Franciscan provides all of its standard medical services to every individual, including those who identify as transgender. Am. Compl. 36, ECF No. 21. But Franciscan’s religious beliefs do not allow them to perform or cover transition-related procedures. Id. at 3.
Franciscan holds religious beliefs that sexual identity is an objective fact rooted in nature as male or female persons. Like the Catholic Church it serves, Franciscan believes that a person’s sex is ascertained biologically, and not by one’s beliefs, desires, or feelings. Franciscan believes that part of the image of God is an organic part of every man and woman, and that women and men reflect God’s image in unique, and uniquely dignified, ways. Am. Compl. 37, ECF No. 21. Indeed, Franciscan tailors care according to the biological differences between men and women and credits this approach as part of the success behind its award-winning heart-health treatment program.8 Id. Franciscan does not believe transition-related procedures are ever in the best interests of its patients and providing or covering any transition-related service would violate their deeply held religious beliefs. Id. at 37–38.” (emphasis added)

(Religious objections to pregnancy termination are, of course, well known.)

A further reason for holding the provisions of the Rule invalid lay in the Federal Religious Freedom Restoration Act, which I have mentioned previously. Under RFRA,

 the “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling government interest.” 42 U.S.C. § 2000bb-1(b) {from p 38 of the judgment}

Here, for the reasons noted above, it would be a “substantial burden” for Christian health care providers to be required to act contrary to their faith commitments and endorse gender transition procedures, or pregnancy terminations.

[T]he Court finds that Private Plaintiffs’ refusal to perform, refer for, or cover transitions or abortions is a sincere religious exercise. Private Plaintiffs have demonstrated they sincerely believe such procedures would harm their patients and force their employees to “engage in material cooperation with evil.” Priv. Pls.’ Br. 24, ECF No. 25. The Supreme Court has explained that the exercise of religion includes “business practices that are compelled or limited by the tenets of a religious doctrine.” Hobby Lobby, 134 S. Ct. at 2770. {at p 39}

In asking whether there was a “compelling government interest” at stake in allowing these groups not to provide such procedures, the Court was particularly struck, in the gender transition area, by the fact that the US Government’s own public health care funding did not require such coverage!

Yet, the government’s own health insurance programs, Medicare and Medicaid, do not mandate coverage for transition surgeries; the military’s health insurance program, TRICARE, specifically excludes coverage for transition surgeries; and the government’s own medical experts reported “conflicting” study results of transition procedures—“some reported benefits while others reported harms.” Centers for Medicare & Medicaid Services, Proposed Decision Memo for Gender Dysphoria and Gender Reassignment Surgery (June 2, 2016); see Pls.’ App. 648, ECF No. 26; see Hobby Lobby, 134 S. Ct. at 2780 (significant carve outs and exceptions may indicate the government lacks a compelling interest). Therefore, it appears the government has failed to adequately carry its burden and show the Rule advances a compelling interest.

In any case, it was clear that the final limb of the RFRA test, that there was no less restrictive way of meeting the goals, was not satisfied. As with the previous  Hobby Lobby case in 2014, where the US Supreme Court held that religiously motivated small businesses could not be required to provide health coverage that include abortifacient procedures, there were other ways that these health services could be provided.

If the government wishes to expand access to transition and abortion procedures, “[t]he most straightforward way of doing this would be for the government to assume the cost of providing the [procedures] at issue to any [individuals] who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” Id. The government could also assist transgender individuals in finding and paying for transition procedures available from the growing number of healthcare providers who offer and specialize in those services. The government has failed to demonstrate how exempting Private Plaintiffs pursuant to their religious beliefs would frustrate the goal of ensuring “nondiscriminatory access to health care and health coverage,” and the government has numerous less restrictive means available to provide access and coverage for transition and abortion procedures. See 81 Fed. Reg. at 31380. {at pp 41-42).

In short, as a matter of religious freedom protection (applying to the Christian health care providers), the Rule was in breach of the RFRA and also invalid for that reason.

No doubt there are many more debates to be had about these issues in the future. It seems likely that the new Federal Government will not be defending this Rule very strongly- although it always hard to tell what will happen. But the decision of Judge O’Connor here seems a sensible reminder that if major changes to medical care rules are to be made with a serious impact on religious freedom, they at least ought to be considered by the representatives of the people as a whole, rather than provided through administrative fiat.