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Protecting the Right Not to Do Harm

The 8th Circuit ruled the government may not force doctors to perform gender reassignment surgeries on minors.
Erin Morrow Hawley
Published
Court says the government may not force doctors to perform gender reassignment surgeries on minors

Something is rotten—and not just in the state of Denmark—when a U.S. federal court must step in to prevent the government from forcing religious hospitals and doctors to violate their best medical judgment and sincere religious beliefs that “gender-reassignment” surgery harms children. But it’s still a good thing that the Eighth Circuit Court of Appeals issued such a ruling on Dec. 9.

There is much on the line in this case. The Biden administration claims the power to force tens of thousands of religious doctors and hospitals across the country to perform controversial “gender-transition” surgeries. The administration points to an unlikely source of authority: Section 1557 of the Affordable Care Act. That provision requires only that hospitals receiving federal funds refrain from discriminating “on the basis of sex.” Such provisions typically ensure that women and men must be treated equally in the provision of medical care. But, according to the Biden administration, this provision prohibits discrimination based on sexual orientation—instead of just biological sex—and thus supports its view that failing to perform a “gender-reassignment” surgery is discrimination within the meaning of the statute.

Based on its (controversial) interpretation of Section 1557, the Department of Health and Human Services issued a Notice and Guidance on Gender Affirming Care in March. This notice claims that attempts to restrict “gender-reassignment” surgeries are “dangerous” and in violation of Section 1557’s antidiscrimination provision. This means that doctors and hospitals must perform “gender-reassignment” surgeries—medically unnecessary procedures that permanently alter the developing bodies of minor children risking permanent sterilization—or face the threat of huge penalties and fines.

The plaintiffs in the case—Catholic nuns, clinics, and hospitals—provide medical care for transgender patients but cannot provide “gender-transition” surgeries to minors while remaining consistent with their faith because they believe them to be harmful to patients.

Last week, the Eighth Circuit joined the Fifth Circuit in putting the gender-surgery mandate on hold, at least as applied to religious hospitals and doctors. The Eighth Circuit found that the “intrusion upon the Catholic Plaintiffs’ exercise of religion” showed irreparable harm.  This is a win for religious liberty and for the rights of medical providers to object to providing care that violates their deeply held faith convictions.

But even more is at stake. The federal government is using taxpayer dollars to push young children into making permanent and irreversible changes to their developing bodies—sometimes without parental consent. As U.S. Rep. Nancy Mace, R-S.C., put it, instead of encouraging children to alter their bodies “through potentially irreversible medical or surgical intervention our government should be promoting policies to protect vulnerable children—who cannot consent.”

As Christians, the message to these vulnerable youth, indeed, to all of our youth, is the life-affirming truth that each of them is made in the very image of God. That every single one of them is fearfully and wonderfully made. That God lovingly formed each of them in the womb, and has good plans for them, plans that only they can fulfill. That God the Father looks at them and calls them “good.”

Childhood gender transition hormones and surgeries come with serious and often irreversible physical consequences. The physical consequences include heart conditions, increased cancer risk, loss of bone density, and lifelong sterilization. Yet the administration is pushing gender transition therapies on even our youngest children when studies repeatedly show that, for most children, gender dysphoria disappears early in puberty if we support and care for them without pushing social, chemical, or physical “transitions.” Indeed, the two sets of studies recommended by The World Professional Association for Transgender Help, an organization the Biden administration cites ad nauseam, show that between 77-94 percent and 73-88 percent of children referred for gender dysphoria will grow out of their gender dysphoria naturally.

This means that the Biden administration is encouraging young children (who cannot truly consent) to alter their bodies permanently even though the vast majority of them will later become comfortable with the bodies of their birth. While the Eighth Circuit decision is a win for religious liberty and for conscientious objectors, we must ask ourselves what sort of society prohibits minors from drinking, smoking, or getting married and yet encourages them permanently to alter their bodies in ways that risk sterilization and other physical and mental harm. What are we doing?

Erin Morrow Hawley
Senior Counsel
Erin Morrow Hawley serves as senior counsel to the appellate team at Alliance Defending Freedom.