Catholic groups can’t be forced to perform gender transition surgeries by government, according to Eighth Circuit decision

The government can’t force religious medical organizations to perform or insure gender transition operations, an appeals court says.

Friday’s Eighth Circuit Court of Appeals decision in Religious Sisters of Mercy v. Becerra is the result of several Catholic organizations suing the government in 2016 over a rule that would have compelled them to act against their religious beliefs in performing transgender surgeries.

The Department of Health and Human Services had published the rule interpreting Section 1557 of the Affordable Care Act, also known as Obamacare. It essentially broadened Section 1557’s ban against sex discrimination to include prohibiting discrimination on the basis of gender identity.

Under the rule, all organizations funded by HHS would have been required to perform services such as sex-change operations. A refusal to do so would constitute discrimination.

Several Catholic organizations, including a university, hospitals and nuns, sued HHS. Notably, the complaint argued HHS had not provided a religious exemption, such as that found in Title IX, despite being asked to provide it. Rather, HHS declared it would decide on a case-by-case basis whether claims for exemptions were valid under the Religious Freedom Restoration Act.

Proceedings in the case were suspended for a time to allow for more rulemaking and adjustments on the part of HHS. In 2020, the 2016 version of the rule was repealed, and a new rule was published. However, as the Eighth Circuit opinion notes, “the 2020 rule did ‘not craft a religious exemption to Section 1557.’” The case then resumed in November 2020.

A judge ruled in the plaintiffs’ favor in January 2021, saying the plaintiffs’ beliefs were violated by the rule. Judge Peter D. Welte permanently barred HHS, as well as the Equal Employment Opportunity Commission, from enforcing interpretations of Section 1557 and Title VII requiring plaintiffs – or, by extension, any religious medical entity – to either insure or perform “gender-transition procedures.”

The government appealed, and the case was put before a panel of three judges in the Eighth Circuit Court of Appeals. The court largely affirmed the lower court’s injunction against HHS and the EEOC, agreeing the rule presents “irreparable harm” in its violation of the plaintiffs’ ability to exercise their religion.

“The federal government has no business forcing doctors to violate their consciences or perform controversial procedures that could permanently harm their patients,” said attorney Luke Goodrich, senior counsel and vice president for the Becket Fund for Religious Liberty, which represented the plaintiffs. “The government’s attempt to force doctors to go against their consciences was bad for patients, bad for doctors and bad for religious liberty.”

Becket achieved another victory for Christian and Catholic clients regarding the same rule in August, with the Fifth Circuit Court of Appeals ruling against compelled gender transition operations and abortions under the Affordable Care Act.

The government has a 45-day window to ask the full Eighth Circuit to rehear the case, and a 90-day window to appeal the case to the Supreme Court.