The U.S. Court of Appeals for the Sixth Circuit will soon hear oral arguments in the case of American College of Pediatricians v. Becerra. The Biden administration is mandating that doctors perform so-called “sex-change surgeries” and provide harmful, life-altering drugs to their patients on demand, even for children, even if doing so violates a doctor’s medical judgment or religious beliefs. The U.S. Department of Health and Human Services is acting upon an executive order signed by President Biden shortly after he took office, instructing his administration to reinterpret “sex” in federal law to include “sexual orientation” and “gender identity.” While the legal question before the court is focused on whether the physicians and other health-care professionals have standing to seek relief from the courts, much more troubling cultural currents loom beneath the surface: the politicization of medicine and laws made by the unelected and unaccountable branches of government.
For the 3,000 members of the American College of Pediatricians and the Catholic Medical Association, along with innumerable physicians across the country who abide by the Hippocratic Oath to “first, do no harm,” permanently altering the healthy body of a child is unthinkable. However, the potential consequences of the Biden administration’s gender-identity mandate loom like the Sword of Damocles over the heads of those whose personal and professional ethics are at odds with the ongoing politicization of medicine. In its public statements and actions, the administration has given every indication it plans to enforce its controversial mandate against these doctors — threatening to drive them out of the practice of medicine altogether. In court, though, the administration has carefully avoided making any explicit commitment to prosecute specific doctors, insisting they haven’t decided yet which ones they’ll come after.
This strategic ambiguity serves as both a sword, of the Damocles variety, and a shield: a sword to pressure medical professionals into complying out of fear of a potential enforcement action, and a shield to argue the challengers have no standing because the government hasn’t started prosecuting them yet. It is a legal strategy as clever as it is nefarious. And it isn’t the first time a clever argument resulted in dire, yet predictable, consequences.
When the U.S. Supreme Court handed down its decision in Bostock v. Clayton County, Justice Neil Gorsuch, writing for the majority, adopted a too-clever-by-half semantic argument that discrimination based on sexual orientation or gender identity is impossible without knowledge of biological sex. Therefore, in the court’s reasoning, Title VII of the 1964 Civil Rights Act’s prohibition of employment decisions based on sex extends to employment actions based merely on sexual orientation and gender identity. This sort of hypertextual analysis goes beyond missing the forest for the trees to ignoring the forest in search of a twig. Congress had unsuccessfully attempted on multiple occasions to amend Title VII to include sexual orientation and gender identity. But why do so if it was there all along? As Justice Samuel Alito’s dissent pointed out, “There is only one word for what the Court has done today: legislation. . . . A more brazen abuse of our authority to interpret statutes is hard to recall.”
Justice Gorsuch was careful to point out that the majority opinion only applied to Title VII, but the law of unintended consequences proved once again to be stronger than any law passed by Congress or decreed under the guise of judicial opinion. The ink was barely dry on the Supreme Court’s decision when the Biden administration announced it would adopt the same reasoning in enforcing any antidiscrimination provision of federal law that included the word “sex.” Less than four years later, doctors across the nation are now in the untenable position of choosing between adherence to conscience and adherence to the ideology of federal bureaucrats. The choice is not only an impossible one for these doctors but also an unconstitutional one for any citizen of this republic. The religious liberty and free speech clauses of the First Amendment were written to protect the God-given right to live and speak according to one’s convictions and to prevent government-coerced speech or conduct.
In American College of Pediatricians v. Becerra, we’re witnessing yet another clash between an unconstitutional attempt to rewrite federal law and the undeniable protections provided by our Constitution. As we await the Sixth Circuit’s decision, it remains to be seen which will be left “standing.”