A federal U.S. court has issued a permanent injunction against a Biden administration mandate barring religious doctors from denying trans people gender-affirming care.
On August 26, the Fifth Circuit Court of Appeals ruled that the Department of Health and Human Services (HHS) directive violated healthcare providers’ religious rights, according to Reuters. The directive stems from Section 1557 of the Affordable Care Act, which bars healthcare programs that receive federal funds, such as hospitals and doctors that take Medicare or Medicaid, from discriminating against patients on the basis of sex. This includes discrimination based on gender identity, as the HHS said in 2016.
The three-judge panel unanimously upheld a lower court’s ruling that the Christian groups challenging the mandate—the Christian Medical & Dental Association, Speciality Physicians of Illinois and the Franciscan Alliance—“cannot be required to carry out these procedures in violation of their deeply held beliefs.” Of the judges, two were Trump appointees, while the other was appointed by George W. Bush.
On behalf of the bench, Judge Don Willett wrote that the HHS had caused faith-based providers harm because it “repeatedly refused to disavow enforcement” against them. “In its brief on appeal, HHS simply says it ‘has not to date evaluated’ whether it will enforce Section 1557 against Franciscan Alliance—in other words, it concedes that it may,” Willett wrote.
Sarah Warbelow, legal director for the Human Rights Campaign (HRC), told Xtra that the decision is “indefensible.”
“Religious freedom is a fundamental American value, and protecting religious minorities from discrimination is entirely compatible with protecting vulnerable and at-risk populations,” Warbelow said in an email. “But the judges’ decision will put the non-medical opinions of healthcare institutions, medical providers and even insurance companies above those of patients and their own doctors. Denying critical medical care compromises the health and safety of everyone.”
The case is likely to go to the Supreme Court, which has generally upheld the constitutionality of the Affordable Care Act as a whole. Despite the current roster being the most right-leaning SCOTUS in 90 years, there was a conservative majority for the Bostock v. Clayton County ruling in 2020, which held that Title VII of the Civil Rights Act of 1964 protects LGBTQ2S+ people from employment discrimination.
The fight over trans healthcare protections has already been debated in U.S. courts for years. After the HHS first handed down its rule that Section 1557 applies to gender identity discrimination in May 2016, religious complainants filed a lawsuit with the U.S. District Court of the Northern District of Texas. The Texas district court sided with them on two separate occasions, but declined to issue a permanent injunction, leading the groups to appeal in order to obtain block Section 1557 indefinitely.
The permanent injunction against Section 1557 is likely to exacerbate already-existing barriers to gender-affirming healthcare. According to a 2015 survey from the National Center for Transgender Equality, a third of trans people said that expenses prevented them from receiving medical care, while almost a quarter declined to seek treatment because due to fears of discrimination. Of the trans people who received healthcare, a third said that they’d had a negative experience with a healthcare provider, and eight percent said that they had been denied transition-related care.
The permanent injunction, too, marks a week of mixed news for trans healthcare. Last Thursday, the Eighth U.S. Circuit Court of Appeals temporarily blocked Arkansas from enforcing its April 2021 ban on trans youth receiving gender-affirming medical care, marking the second time the law has been met with an injunction. The ACLU had challenged the statute on behalf of two doctors providing transition-related care, as well as four trans children and their families.
Arkansas was the first U.S. state to enact such a ban, which bars doctors from prescribing puberty blockers, hormone treatments or gender-affirming surgery to anyone under 18 years old. (There are no doctors who perform such procedures in the state.) A federal judge blocked a similar law in Alabama last May, but a Tennessee statute banning hormone treatments for prepubescent trans youth remains in place.
These laws are just part of a wave of legislative attacks against trans people, which includes at least 130 bills aiming to restrict trans youths’ access to bathrooms and medical care and their participation in sports, according to HRC.
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