Lawyers representing two Catholic organizations on Wednesday argued for a preemptive lawsuit against transgender care mandates, arguing in the appeals court that federal law shouldn’t require faith-based health care providers and insurers to cover the “gender transition procedures”.
An attorney for the Sisters of Mercy Religious presented his case before a three-judge panel of the United States Court of Appeals for the 8th Circuit against the Department of Health and Human Services.
The lawsuit says HHS’s planned enforcement of Section 1557 of the Affordable Care Act, which prohibits discrimination based on “gender identity,” would require doctors and hospitals to perform surgeries on transgender patients even when the operations are potentially dangerous.
The department “promised to “vigorously enforce” Section 1557. Its recent enforcement notice just months ago stated, “We will enforce Section 1557 to prohibit discrimination based on gender identity.” “said attorney Luke Goodrich of the Becket law firm, which is representing the Sisters of Mercy.
Goodrich said HHS said it would go after those with religious objections to providing drugs, surgeries and counseling for people who want to ‘transition’ to another sex and asked the panel to uphold a January 2021 U.S. District Court ruling blocking these requirements. .
Attorney Ian Speir is representing the Catholic Benefits Association, a lobby group whose Catholic Insurance Co. unit provides health insurance to its members and is included in the lawsuit as a plaintiff.
Mr. Speir of the Nussbaum Speir Gleason law firm in Colorado Springs, Colorado, told the panel that the Equal Employment Opportunity Commission was about to impose payment for transgender medical procedures under of Title VII of the Civil Rights Act, and he asked the court to block those guidelines as well.
But Justice Department attorney Ashley A. Cheung, representing the two agencies, said they “have not in fact taken a position on whether religious entities who oppose it are required to provide and cover transition services”.
Neither HHS nor the EEOC has “ever taken enforcement action against any entity for refusing to cover transitional services, let alone an objective religious entity,” she added.
However, Ms Cheung said the “government is unable to disavow any future application” as the agencies are “reviewing these complicated issues”. She said the 1993 Religious Freedom Restoration Act would be considered in any future enforcement action.
“There is no credible threat of execution here,” Ms Cheung said.
Mr. Goodrich responded that there was a “constitutional interest” in considering a pre-execution injunction, that HHS is authorized to execute a warrant under the ACA, and that “there is a credible threat of ‘execution”.
“HHS made its position clear in the 2016 rule, saying outright refusals to perform or provide gender transitions — which our clients do — are prima facie illegal,” he said.
Mr. Speir said, “Title VII prohibits discrimination based on gender identity. … [I]This has been the steadfast position of the EEOC since at least 2012. And the EEOC has applied this specific interpretation in the context that is at issue here by requiring employers to cover gender transition services in their health plans. .
The panel consisted of three Republican-appointed justices: Chief Justice Lavenski R. Smith and Justice Raymond W. Gruender were appointed by President George W. Bush; Judge Jonathan A. Kobes by President Donald Trump.
The judges did not say when they would render a decision.
Correction: An earlier version of this report misspelled lawyer Ian Speir’s last name and misidentified his law firm.
