Three Catholic organizations are suing the U.S. federal government over a regulation that went into effect yesterday which expands anti-discrimination laws to protect LGBT people further.
A new Department of Health and Human Services’ (HHS) regulation interprets existing regulations banning discrimination based on sex as including sexual orientation and gender identity as protected classes. The regulation stems from the Affordable Care Act, and is rooted in the non-discrimination protections of Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972.
According to the National Catholic Reporter, the HHS regulation “requires group health plans to cover these procedures and services” related to gender transitions and counseling for gender identity questions. The regulation applies to any group health plans, insurers, and hospitals who receive federal funding and does not include a religious exemption.
Three Catholic groups — the Catholic Benefits Association (CBA), the Diocese of Fargo, and Catholic Charities North Dakota — are now claiming the regulation violates religious liberty protections found elsewhere in federal law. The CBA offers insurance and employment benefits to church workers in Catholic dioceses, education, healthcare, and religious life.
Bishop John T. Folda of Fargo said that while the church does not discriminate based on a person’s “orientation,” Catholic values “will not permit us to pay for or facilitate actions that are contrary to our faith.” Archbishop William Lori of Baltimore, who is not only the head of the U.S. bishops’ committee on religious liberty but is also chairperson of the CBA, said President Barack Obama’s administration sought to “impose radical new health care mandates . . .creating a moral problem for Catholic employers.”
Two other lawsuits in federal court are challenging the HHS regulation. They were filed by the Becket Fund, a conservative Catholic legal/political organization. The suits include Catholic plaintiffs such as the Franciscan Alliance, the Sisters of Mercy in North Dakota, the University of Mary, and SMP Health System. A half dozen states have joined the suits as well.
In a related case, the HHS regulation was invoked in a discrimination lawsuit by a transgender man against the Dignity Health system, which the man alleges denied him gender-confirming surgeries. That lawsuit is ongoing, reported Crux.
But transgender advocates have challenged these claims of religious liberty violations as misguided. Jillian Weiss, director of the Transgender Legal Defense and Education Fund (TLDEF), said the regulation establishes parity in healthcare for trans people. Gay Star News reported:
“‘The only thing a doctor is obliged to do is treat all patients, including trans patients, with dignity and respect and to make treatment decisions free from bias,’ said Ezra Young, staff attorney for the TLDEF, in a statement.
“‘If a doctor has a sound, evidence-based, medical reason to delay transition care for a specific patient, that would be respected under the regulations.'”
Despite contrary claims, the regulation does not force health care providers to deliver services they do not deem medically necessary. It only ensures trans people have equal rights and equal treatment. Sarah Warbelow, legal director of the Human Rights Campaign, explained to PinkNews, “‘What the rule says is if you provide a particular service to anybody, you can’t refuse to provide it to anyone.'”
As with many discussions of LGBT legal rights in the United States, religious opponents of equality have set up a false contrast between LGBT communities and religious institutions. These matters are really about balancing the goods of human dignity, conscience, equal rights, and religious liberty, all of which are affirmed in Catholic teaching. At times, legal action is needed to uphold rights; more often, a collaborative approach could advance the common good by bringing together different interest groups and finding a beneficial solution for all involved.
The sadder reality about these present lawsuits is that church officials have buttressed their claims with ideas that do not exist in church teaching. There is no prohibition on gender transitions or mental health counseling for LGBT people, whereas non-discrimination protections and equality of persons are well-established doctrine. Despite the claims of some church leaders and right-wing organizations, Catholics in the United States are overwhelmingly supportive of LGBT rights.
It is worth noting, too, that Pope John XXIII’s 1963 encyclical Pacem in Terris was among the first instances where healthcare was named as a human right. Outside the United States, where the nation’s bishops have in recent years waged an ideologically driven attack on the Affordable Care Act, the church has championed expanded access to healthcare. Malta, a very Catholic island nation, passed a transgender rights law which is considered the gold standard in Europe. Historically Catholic nations elsewhere have led the way on transgender and intersex legal rights.
Most tragic is that while U.S. church officials expend their time and resources fighting LGBT rights and claiming that religious liberty is under attack, they neglect almost wholesale the discrimination and violence LGBT people face and the very real threats to religious liberty present in our world today.
–Robert Shine, New Ways Ministry, January 2, 2016