Catholic institutions vulnerable to sexual “identity” discrimination lawsuits

In an attempt to continue her desired “transition” from female to male, Evan Michael Minton was scheduled by her surgeon to undergo a hysterectomy at Dignity Health chain’s Catholic Mercy San Juan Medical Center in Carmichael, California last summer.  The surgery was denied by the Catholic hospital’s policy.  And, although Minton was able to have the surgery at another Dignity Health chain hospital in September, she told a reporter for the Sacramento Bee that she was “devastated” by the denial. Claiming that the hospital’s unwillingness to perform the surgery caused such “frustration and disappointment,” the American Civil Liberties Union has now stepped in to file a lawsuit against the hospital last week on his behalf.

Filed in San Francisco Superior Court, the ACLU lawsuit claims that Minton was “discriminated against” when she sought a hysterectomy as part of her transition from female to male.  Spokeswoman Melissa Jue, of the Mercy San Juan Medical Center, told reporters that “sterilization procedures, such as hysterectomies or tubal ligations are permitted by Catholic hospitals only to cure or alleviate a serious pathology.”  She pointed out that Dignity Health officials helped Minton obtain the hysterectomy the following month at one of Dignity’s non-Catholic hospitals, Methodist Hospital of Sacramento.

Minton’s surgeon, obstetrician gynecologist Dr. Lindsey Dawson, told reporters: “I don’t blame the administrators.  I blame the (Catholic) doctrines.”  Minton has already had a double mastectomy and a phalloplasty in her quest to become a male.  The hysterectomy was the final step in Minton’s journey to “be able to be congruent with who I am.”  Telling reporters that “When I got my complete body, the rest of my life starts here,” Minton added that: “I don’t want it to affect my transgender brothers and sisters the way it affected me…No one should have to go through that.” That is exactly what should concern all Catholic institutions—including Catholic colleges and universities—as they are all vulnerable to transgender discrimination lawsuits. Minton’s suit is a cautionary tale for Catholic institutions.

All of this is emerging from U.S. Department of Health and Human Services rule issued on September 8, 2015, by the Obama administration.  The rule is really a new interpretation of Section 1557 of the Affordable Care Act (ACA) to extend Title IX’s definition of “sex” to include gender identity. The Rule was published as final on May 18, 2016, and it expanded the HHS definition of gender identity even further from the proposed definition to mean an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female. HHS stated in the new rule that “gender identity spectrum includes an array of possible gender identities beyond male and female,” and individuals with “non-binary gender identities are protected under the rule.”  This means that doctors, hospitals and other healthcare providers—including those receiving nursing or medical training on Catholic college campuses—may not “deny or limit treatment” to those seeking sex reassignment procedures, even when those procedures run contrary to the provider’s religious beliefs and medical judgement.

Religious institutions have attempted to fight back. Last August, the Becket Fund for Religious Liberty filed a lawsuit in a Texas federal court on behalf of a coalition of religious healthcare providers, charging that Obama’s Health and Human Services Administration “overstepped its bounds” by requiring medical providers to participate in sex-reassignment procedures—including sex reassignment services and procedures on young children.

More recently, on November 7, 2016 the Beckett Fund filed yet another lawsuit—this time including a Catholic college in the lawsuit—against the federal government’s HHS mandates on behalf of the Religious Sisters of Mercy and the University of Mary. The State of North Dakota also joined Becket’s legal challenge. According to the complaint, Becket points out that the HHS mandate forces healthcare professionals and the University of Mary to violate their deeply held religious beliefs.  One of the plaintiffs, the University of Mary, maintains that the Catholic school “infuses Benedictine values throughout its educational experience, including its premier nursing program,” yet will be forced to violate their deeply held religious beliefs by participating in what the Catholic Church teaches are “harmful medical transition procedures.”  The regulation also requires that they pay for these same medical transition procedures in their health plans on pain of massive financial liability.

The Conference of Catholic Bishops opposed inclusion of gender identity in federal health care laws barring sexual discrimination.  In a November 6, 2015 letter to the U.S. Department of Health and Human Services the bishops claimed that “that medical and surgical interventions that attempt to alter one’s sex are, in fact, detrimental to patients” and “are not properly viewed as health care because they do not cure or prevent disease or illness. Rather they reject a person’s nature at birth as male or female.”

As the Sisters of Mercy/University of Mary lawsuit points out, since the Sisters of Mercy Health System provides hysterectomies to some patients, such as those diagnosed with uterine cancer, the HHS Regulations force the Catholic health care providers to provide a hysterectomy and remove an otherwise healthy uterus for a medial transition—notwithstanding the serious potential harm to the patient, and the violation of the religious beliefs of the providers.  The Becket complaint also points out that the Regulations require Plaintiffs to “compel the speech of healthcare professionals” (including Catholic university nursing students) in several ways—mandating revisions to healthcare professionals written policies, requiring them to promise to provide transition related procedures, and requires healthcare providers to use gender-transition affirming language in all situations regardless of circumstance.

Unless President Trump actually repeals the Affordable Care Act—including its religious liberty destroying mandates surrounding gender identity—the Catholic Church is likely in for a long battle.  The Church cannot change her teachings on non-negotiable issues such as the nature of man and woman.  Pope Francis has already joined his predecessor Pope Emeritus Benedict XVI in condemning contemporary gender theory as denying “the order of creation.” In a Christmas-time homily on December 23, 2008, Pope Benedict directly addressed transgender issues by cautioning Catholics about “destroying the very essence of the human creature through manipulating their God-given gender to suit their sexual choices.”  Likewise, Pope Francis rejects the social constructionist view of gender as fluid and changeable, maintain that gender is God-given.

The Church understands that there are several dimensions to gender dysphoria—including a sociological dimension and a psychological dimension—that gender transitioning procedures cannot begin to treat.  UCLA and the National Foundation for Suicide Prevention data reveal that more than 41 percent of those identifying as “transgender” or gender nonconforming have attempted suicide, compared with only 4.6 percent of the overall U. S. population who report a lifetime suicide attempt.  It is also higher than the 10-20 percent of lesbian, gay and bisexual adults who report ever attempting suicide.  This data come from the American Foundation for Suicide Prevention and UCLA’s Williams Institute, which analyzed results from the National Transgender Discrimination Survey.  More than a dozen other studies since 2001 have found similar results for the alarmingly high rates of suicide for transgender individuals.

In 2013, a 44-year old Belgian female-to-male transsexual chose to die by euthanasia after expressing her unhappiness with her sex-change operation.  Claiming that the surgery had turned her into a “monster,” doctors assisted her in ending her life on the grounds of “unbearable psychological suffering”.  While progressives insist that the reason for the high suicide rates for the LGBT community is due to the stigma and discrimination they have historically faced, the reality is far more complex.  In fact, the prevalence of suicide attempts is actually elevated among those transgendered individuals who are open about their transgender identity.  Those who disclose to others that they are transgender have the highest rates of suicide (50%).

The Obama administration’s HHS mandate seems to ignore the documented evidence of the risks associated with medical transition procedures.  Yet, as the November 2016 Becket Fund lawsuit points out, “HHS’s own medical experts recently wrote, ‘Based on a thorough review of the clinical evidence available at this time, there is not enough evidence to determine whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria.”  Some of the best designed studies have reported serious harms.

Unless the Trump administration is willing to repeal the HHS mandates that violate the religious liberty of all Catholic institutions—including Catholic colleges and universities—these  institutions will continue to be vulnerable to costly lawsuits for “discriminating” against transgendered individuals desiring transition procedures.