Administration hits pause on gender-identity health rule

Written by William C. Duncan

May 6, 2022

The American hospital system has roots in religious motivations and institutions. As medical practice has become more regulated, the potential for conflicts between religious service providers and government agencies has increased – as we have seen with other social services.

Most regulations, of course, are welcomed by religious organizations because they merely establish expectations of safety that coincide with the aspirations of providers.

There are, however, situations where laws create moral quandaries for medical professionals who are people of faith and for faith-based organizations that provide medical care.

The most prominent example arises from the abortion context. After the U.S. Supreme Court struck down state abortion laws in Roe v. Wade, Congress recognized the potential conscience conflicts for doctors and nurses who might be asked to perform or assist with abortions and enacted legislation to protect them.

More recently, conflicts have arisen over transgender procedures.

  • In Washington, a Catholic health organization was sued for refusing to pay for the procedures for an employee’s child. The organization settled and agreed to offer coverage going forward.
  • In California, a Catholic hospital system was sued for declining to perform a hysterectomy requested for purpose of a gender transition. A California court of appeals decided the denial was discriminatory and that the burden this law placed “on the exercise of religion is justified by California’s compelling interest in ensuring full and equal access to medical treatment for all its residents.” Ongoing lawsuits in New Jersey and Maryland against Catholic hospitals involve the same facts.

In 2021, the Department of Health and Human Services weighed in on the topic, proposing a new regulation that would bar discrimination on the basis of gender identity in medical care in programs that receive federal funding. In January of this year, the department proposed a rule that would have extended this policy to health insurers.

These proposals raised concerns for some religious freedom advocates. They worried the proposed rules would require religious medical providers, like the hospitals in the lawsuits, or religious employers offering health plans to their employees to participate in or support transgender procedures at odds with their beliefs.

Last week, however, the department announced it would address the nondiscrimination policies at a later time and adopted a new rule on health coverage that did not include them. There was speculation that the proposals were dropped because they could have led to lawsuits like the Hobby Lobby case. In that case, a religious employer challenged a federal mandate to provide drug coverage to employees that the employer believed would have caused abortions, and the Supreme Court ruled in favor of the employer.

This delay is welcome and should provide an opportunity to ensure that concerns about discrimination are addressed in a way that does not require religious organizations or people of faith to subsidize practices at odds with their faith.

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