Court strikes down Biden’s transgender mandate

WASHINGTON -- The 8th U.S. Circuit Court of Appeals in St. Louis Dec. 9 permanently blocked a transgender mandate the U.S. Department of Health and Human Services had implemented as a revision to the Affordable Care Act.

The mandate forces doctors and hospitals to perform gender-transition procedures on their patients even if this violates their conscience and best medical judgment. The 8th Circuit concluded the mandate violates a key federal law protecting religious liberty — the Religious Freedom Restoration Act.

The Biden administration has 45 days from the date of the ruling to ask the 8th Circuit to rehear the case, Sisters of Mercy v. Becerra, or 90 days to appeal to the U.S. Supreme Court. “Becerra” is HHS Secretary Xavier Becerra.

“The federal government has no business forcing doctors to violate their consciences or perform controversial procedures that could permanently harm their patients,” said Luke Goodrich, vice president and senior counsel at Becket, a Washington-based religious liberty law firm representing the plaintiffs.

“This is a common-sense ruling that protects patients, aligns with best medical practice, and ensures doctors can follow their Hippocratic oath to ‘do no harm.’ ” 

The 8th Circuit’s ruling echoes a unanimous ruling by the 5th U.S. Circuit Court of Appeals in New Orleans, which struck down the mandate in a late August ruling in Franciscan Alliance v. Becerra.

The Biden administration had until Nov. 25 to appeal the 5th Circuit’s decision to the U.S. Supreme Court. But the deadline came and went without an appeal being filed, “meaning this win is FINAL,” Goodrich tweeted that day.

In May 2016, under the Obama administration, the HHS civil rights office finalized regulations for an ACA provision called Section 1557. The agency added “sexual orientation and gender identity” to the provision, which prohibits discrimination on the basis of race, colour, national origin, age, disability or sex — including pregnancy — in covered health programs or activities.

The mandate required 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.

The case that ended up before the 8th Circuit, Sisters of Mercy v. Becerra, was first filed in federal court in November 2016 by Becket on behalf of the Sisters of Mercy, the University of Mary and SMP Health System. The state of North Dakota also joined the suit.