?The 5th U.S. Circuit Court of Appeals ruled on Aug. 26 that the federal government cannot require health care providers to perform gender-transition procedures or abortions when they have a religious objection to it. In Franciscan Alliance v. Becerra, the court confirmed the federal government cannot penalize or deny federal financial assistance because of a medical provider’s failure to perform gender-transition services or abortions.
In 2021, a Catholic hospital association and a Christian health care professional association filed a lawsuit against the U.S. Department of Health and Human Services (HHS), claiming that the federal requirement to provide gender-affirming care and abortions violated their religious rights under the federal Religious Freedom Restoration Act (RFRA). They asked the court to block enforcement of a 2016 HHS rule.
The U.S. Constitution’s 14th Amendment bans sex discrimination. In addition, the Affordable Care Act (ACA) prohibits sex discrimination by health care programs that receive federal funding. HHS has interpreted this to include discrimination based on gender identity or sexual orientation.
“This is a classic example of the clash between the heightened protections that the federal government has given to LGBTQ+ citizens in its interpretation of the discrimination protections provided by the Affordable Care Act and the RFRA,” said Kelly Bunting, an attorney with Greenberg Traurig in Philadelphia. “You can see the progression of the court’s reasoning based on fairly recent rulings interpreting the RFRA and how that bumps up against the federal government’s attempts to expand protections for LGBTQ+ citizens.”
The circuit court did not give hospitals permission to broadly refuse care for transgender people.
“Note that the plaintiffs were specifically asserting that provision of gender-affirming care would violate their religious beliefs, not providing general medical services to transgender people,” said Christy Mallory, legal director at the Williams Institute, a research center at UCLA School of Law in Los Angeles. “It’s possible that the court would have reached a different result if the challenge was to any application of the nondiscrimination policy.”
Bunting believes there will be an increase in the number of states restricting gender-affirming care and more cases with doctors refusing to provide gender-transition services.
“We will have to wait and see how this all plays out,” she said. “Medical ethicists are starting to weigh in on the difficult questions involving a physician’s ethical duty toward their patients and potentially contradictory religious beliefs. There have been several cases in the past where pharmacists who objected to providing pills that induce medical abortions based on their religious beliefs were permitted to opt out of doing so.”
State Laws
Legal protections for LGBTQ patients vary by state and are changing rapidly.
Four states—Alabama, Arizona, Arkansas and Texas—recently enacted laws restricting youth access to gender-affirming care and, in some cases, imposing penalties on adults facilitating access. Courts have temporarily blocked Alabama, Arkansas and Texas from enforcing these laws, according to a recent report from the Kaiser Family Foundation. This year, 15 states considered similar restrictions on gender-affirming care.
“It’s possible that legislators in other states will continue to introduce legislation seeking to restrict access to care in future sessions,” Mallory said. “On the other hand, existing restrictions on access to care for youth have been challenged in court, and the bans have not fared well so far. Other states may look to these judicial opinions and decide not to pass similar laws that will likely subject the state to similar litigation.”
Going in the opposite direction, 22 states “have laws that prohibit discrimination based on gender identity in public accommodations, and several more states interpret their sex nondiscrimination laws to protect transgender people,” Mallory noted. “Some states also have laws that specifically prohibit some insurance providers and state Medicaid programs from discriminating against transgender people in health care coverage. These laws support access to gender-affirming care for transgender people living in or seeking services in these states.”
The American Medical Association, the American Academy of Pediatrics, the American Psychological Association, and American Psychiatric Association have issued statements recognizing the medical necessity and appropriateness of gender-affirming care for youth, as well as noting harmful effects from denying access to those services.
Sincere Religious Belief
The RFRA states that the federal government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” It provides an exception to this rule if the burden is necessary to advance a compelling government interest, such as protecting public health and safety.
RFRA applies to all sincerely held religious beliefs, regardless of whether they are central to or mandated by a particular religious organization.
“Not all religions object to or take a position on the morality of providing gender-affirming surgery or abortion or even contraception for that matter,” Bunting said. “There is likely to be litigation filed on both sides: patients who claim discrimination based on denial of care and doctors who claim they cannot be forced to act contrary to their religion.”
“It is up to the court hearing the case to determine whether the policy substantially burdens the plaintiff’s right to religious exercise, and if so, whether the government has a strong enough interest in applying the policy to the plaintiff to outweigh the burden on the plaintiff’s religious rights,” Mallory explained. “These determinations are made on a case-by-case basis, but courts will generally accept that an objection is based in religious beliefs and focus on evaluating the burden and the government’s interest.”