That didn’t take long.
The ink is barely dry on the U.S. Supreme Court’s June 15 landmark decision in Bostock v. Clayton County, which redefined the word “sex” in the 1964 Civil Rights Act with respect to employment discrimination, and LGBT activists have now filed a new lawsuit asking the courts to go even further by striking down a conscience rule issued by the U.S. Department of Health and Human Services (HHS). Their goal with the new lawsuit is to force religious hospitals, doctors and other healthcare personnel to perform so-called “gender-transition” surgeries – what activists call “gender affirmation” surgeries.
Medical professionals and clinics would also be forced to provide puberty blockers for children and opposite-sex hormones for those struggling with gender dysphoria – against their professional judgment.
In 2016, the Obama-era HHS took it upon itself to redefine nondiscrimination terms in the Affordable Care Act, aka Obamacare, such as “sex” (in section 1557) to include “gender identity” and “termination of pregnancy,” the latter term being a euphemism for abortion. The net effect of that rule would be to remove objections to performing procedures that violated healthcare providers’ consciences.
A Texas federal district court judge issued a nationwide injunction blocking the effect of the portions of that rule concerning gender identity and the termination of pregnancy. The judge ruled that the agency exceeded its authority and likely violated the Religious Freedom Restoration Act rights of doctors and hospitals
The new rule, just finalized by the current HHS, returned the definition of “sex” under Section 1557 to the definition included by Congress in 2010 when Obamacare was passed, which referred back to the 1972 Title IX law prohibiting discrimination on the basis of sex in educational programs. HHS hailed the rule, issued on June 12, as a victory for the rule of law and a return to the original purpose of the law as intended by Congress.
But that was just three days before the Supreme Court held in Bostock that when Congress used the term “sex” in the 1964 Civil Rights Act, that term was broad enough to encompass sexual orientation and gender identity. Bostock did not address the issue of whether “sex” also includes “termination of pregnancy.”
The LGBT plaintiffs in the new lawsuit allege that Bostock’s reasoning, affecting federal employment non-discrimination law, must necessarily apply to the healthcare field as well. As they allege in the legal papers filed in the U.S. District Court for the District of Columbia:
“To be clear, Bostock’s holding that discrimination on the basis of sexual orientation or transgender status constitutes discrimination on the basis of sex forecloses HHS’s attempts to deny the full protection of Section 1557 to LGBTQ individuals and patients in health care settings.”
The plaintiffs are also clear that they are targeting the religious beliefs of the healthcare providers protected under the new rule:
“HHS’s attempt to create new religious exemptions in Section 1557 is contrary to law and endangers patients’ health in the name of advancing the religious beliefs of those who are entrusted with caring for them—a result sharply at odds with HHS’s stated mission to ‘enhance and protect the health and well-being of all Americans’ and to ‘provid[e] for effective health and human services.’”
The goal of this lawsuit is to effectively kill religious or medical conscience as a valid objection in the healthcare field when it comes to performing otherwise unnecessary or objectionable procedures or treatments. Although the plaintiffs allege that LGBT individuals will be refused medical care on a massive scale if the rule were permitted to continue, that is most certainly not the reality. The objection of medical providers is not to serving LGBT individuals because they are LGBT, but to performing certain procedures. If a surgeon refuses to perform a chemical or surgical castration on an 18-year-old boy who thinks he is a girl, that ought to be an individual doctor’s prerogative under any reasonable understanding of medical or religious conscience.
A modern version of the Hippocratic Oath requires that doctors remember, “Above all, I must not play at God.” This new lawsuit will force doctors to do just that. And punish them if they don’t.
The case is Whitman-Walker Clinic v. HHS.
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