- The Washington Times - Thursday, August 25, 2016

Religious health care providers and five states are suing the federal government over a regulation that they say would require doctors to perform sex-reassignment procedures, even if doing so would run contrary to their medical judgment and ethical beliefs.

The lawsuit, filed Tuesday at a federal court in Texas, takes issue with a nondiscrimination mandate issued in May by the U.S. Department of Health and Human Services.

Lori Windham, senior counsel at the Becket Fund for Religious Liberty, which represents the coalition, said the mandate would force doctors to perform sex-reassignment procedures on children.

It reaches every doctor, hospital and insurer that receives federal Medicare and Medicaid dollars, Ms. Windham said — “virtually every doctor in the United States.”

Doctors who refuse to perform the procedures would be subject to private litigation and compensatory damages, she said, and hospitals that fail to adhere to the mandate risk losing federal Medicaid and Medicare funding.

The mandate relies upon a prohibition on sex discrimination in Section 1557 of the Affordable Care Act, which HHS has interpreted as barring discrimination on the basis of gender identity.

That reading is consistent with other Obama administration interpretations of federal law, including the Department of Education’s insistence that Title IX’s prohibition on sex discrimination in education also applies to gender identity.

The lawsuit alleges that HHS overstepped its authority and misinterpreted Obamacare’s anti-discrimination provision.

“Government bureaucrats do not have the ability to go in and take away doctors’ ability to use their best medical judgment,” Ms. Windham said. “HHS has gone beyond its authority to intrude on the rights of doctors to counsel and treat their patients.”

The lawsuit was filed in the same federal court that on Sunday blocked the Obama administration’s order compelling public schools to regulate bathrooms, locker rooms and shower facilities on the basis of gender identity, rather than biological sex.

Siding with 14 states that sued the federal government over the order, U.S. District Judge Reed O’Connor said the Obama administration did not follow rule-making procedures outlined in the Administrative Procedure Act, including notice and comment.

Ms. Windham said she was “encouraged” by that outcome.

“We think it illustrates that HHS overstepped its bounds by trying to redefine the terms of the statute,” she said.

The Leadership Conference, a pro-LGBT organization, said the timing and location of the lawsuit “comes as no surprise.”

“Shopping around for right-wing judges willing to block the enforcement of our nation’s civil rights laws is an abuse of the judicial system,” Nancy Zirkin, executive vice president of the Leadership Conference, said in a statement.

Ms. Zirkin said the mandate ensures that transgender people are treated with “dignity, respect, and freedom from discrimination” when receiving health care.

Ms. Windham said the mandate is “blatantly hypocritical,” pointing out that HHS medical experts have long prevented Medicare and Medicaid funds from covering sex-transition procedures due to dubious evidence about the their effectiveness and the fluidity of gender identity in children.

“So they do not require Medicare and Medicaid to cover these procedures; they look at it on a case-by-case basis,” she said. “Yet the political appointees at HHS are saying that doctors cannot look at it on a case-by-case basis.”

Texas, Wisconsin, Nebraska and Kansas have joined in the suit, and Kentucky Gov. Matt Bevin, a Republican, is joining the suit on behalf of his state.

The plaintiffs in the lawsuit include the Franciscan Alliance, which operates 14 hospitals in Indiana and Illinois, and the Christian Medical Association, a national network of medical professionals.

Religious groups unsuccessfully lobbied for an exception to the mandate before it was implemented. The lawsuit argues the edict infringes upon the rights of religious medical professionals.

“Doctors and health care providers like Franciscan Alliance have joined this profession in order to serve people,” Ms. Windham said. “They’re inspired by their faith, and they should not be forced to provide transition procedures, especially for children, that go against their medical judgment.”

• Bradford Richardson can be reached at brichardson@washingtontimes.com.

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