HHS urged to ‘reconsider misguided mandate’ on transgender procedures

NEW YORK (CNS) — Catholic hospitals and their workers “must not be coerced by the government to violate their consciences” by being forced to perform “gender transition procedures” against their religious beliefs, said two U.S. cardinals writing in America magazine.

In a Sept. 26 article in the national weekly Jesuit publication based in New York, Cardinal Blase J. Cupich of Chicago and Cardinal Timothy M. Dolan of New York addressed a proposed revision called to the Affordable Health Care law drafted by the civil rights office of the U.S. Department of Health and Human Services.

The HHS proposal, or “proposed rule” as it is called, would apply to implementation of an ACA provision, Section 1557, which prohibits discrimination on the basis of race, color, national origin, age, disability or sex — including pregnancy, sexual orientation and gender identity — in covered health programs or activities.

This provision “rightly prohibits discrimination on the basis of sex in health care. We wholeheartedly support all efforts to ensure that everyone, without exception, receives the best health care that is their due,” Cardinals Cupich and Dolan wrote.

“Catholic hospitals do not discriminate against anyone and to do so would be offensive to the embracing and expansive healing ministry of Jesus Christ,” they said, noting that one of every seven Americans in need of hospital care will receive it in a Catholic facility.

“All people who come to us” are treated with dignity, “no matter their age, sex, racial or ethnic background or religion. It is also true for people who identify as transgender. They will receive the same treatment as any other patient,” the prelates said.

“However, if health care facilities are to be places where the twin pillars of faith and science stand together, then these facilities and their workers must not be coerced by the government to violate their consciences,” they said.

Besides forcing health care workers to perform gender transition procedures, the revisions would require health insurance plans to cover the costs of such procedures.

The HHS proposal will likely apply to all health care providers, clinics, nursing homes, hospitals, group health insurers and third-party administrators of self-funded plans.

The full proposal, published under the heading “Nondiscrimination in Health Programs and Activities,” can be found on the Federal Register’s website at https://bit.ly/3d0wwkJ. The site includes a link to submit comments and provides other ways to submit comments.

It was published Aug. 4 by the Federal Register, opening a 60-day period for public comment. The last day for submissions is Oct. 3.

“Under this new proposed rule, it would be considered discrimination for a health care facility or worker to object to performing gender transition procedures, regardless of whether that objection is a matter of sincerely held religious belief or clinical judgment,” Cardinals Cupich and Dolan said. “This is government coercion that intrudes on the religious freedom of faith-based health care facilities.”

They urged HHS “to reconsider its misguided mandate.”

“Such a mandate threatens the conscience rights of all health care providers and workers who have discerned that participating in, or facilitating, gender transition procedures is contrary to their own beliefs,” they added.

The cardinals said that “people of many faiths, or of no faith yet with deep personal convictions, may find these procedures profoundly troubling, and their constitutional rights deserve to be respected.”

“In a society that protects the free exercise of religion, religious health care providers cannot be expected to violate the teachings of their religion as a condition of continuing their care, and religious health care workers cannot be expected to violate their consciences as a condition of employment,” they said.

Cardinals Cupich and Dolan asked the question: “Does objecting to performing gender transition procedures — but welcoming patients who identify as transgender — constitute discrimination?”

“Of course not,” they said. “The focus of such an objection is completely on the procedure, not the patient.”

“Prohibiting the removal of a healthy, functioning organ is not discrimination, provided that the same determination would be made for anyone of any sex or gender, which is true at Catholic hospitals,” they continued.

The cardinals confirmed what other critics of the HHS proposal said when they first became aware of it back in July, that it would not include federal conscience protection for those in health care who object to performing these procedures.

“The proposed regulation does not codify the rights of faith-based providers to decline procedures based on conscience, as other federal laws do,” the prelates said. “Rather, it holds that HHS reserves the right to decide whether, despite those existing conscience protections, it can force faith-based providers to violate their beliefs.”

“Considering that the government is currently fighting court rulings that held that it violated religious freedom laws the last time it tried to impose a mandate like this, it is reasonable to lack confidence in the department’s commitment to construing these laws to provide appropriately robust conscience protections,” they said.

One such court ruling was handed down Aug. 26 by the 5th U.S. Circuit Court of Appeals in New Orleans.

In a unanimous decision, the court blocked an HHS transgender mandate in a case that dates back to the Obama administration.

The ruling came in the case Franciscan Alliance v. Becerra. The lawsuit was first filed in 2016 by Franciscan Alliance, a Catholic health care network, and a group of nearly 19,000 health care professionals.

That year the Obama administration began implementing a mandate requiring doctors to perform gender transition procedures on any patient, including children, and required private insurance companies — except plans run by Medicare and Medicaid — and many employers to cover gender reassignment therapy or face severe penalties and legal action.

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