There is an interesting constitutional challenge brewing in Tennessee where 3,000 physicians and health care professionals are suing the Biden Administration over the mandate for doctors to perform gender transition procedures. One of the first changes ordered by the Biden Administration was redefine the discrimination laws to include the denial of such gender transition procedures. The case could force courts to address a direct conflict between anti-discrimination laws and religious values–a medical version of cases like Masterpiece Cake shop.. The Defendants include the U.S. Department of Health and Human Services and the Office for Civil Rights of the HHS, including Xavier Becerra, the secretary of the HHS, and Robinsue Frohboese, acting director and principal deputy of the Office for Civil Rights of the HHS.
Section 1557 of the Patient Protection and Affordable Care Act provide that an individual shall not be excluded from participation in, be denied the benefits of, or be subjected to discrimination on the grounds prohibited under Title VI of the Civil Rights Act of 1964. One of the earliest acts of President Biden to sign an executive order upon entering office that required Section 1557 and Title IX be interpreted to include gender identity as a protected trait.
Title IX also prohibits discrimination on the basis of race, color, national origin, sex (including sexual orientation and gender identity), age or disability in covered health programs or activities.
These medical experts challenge the government’s authority to effectively order them to perform gender transition procedures, prescribe hormones or puberty blockers. Additionally, they claim the Biden Administration is forcing them conform their speech to gender identity, rather than biological sex, regardless of their medical judgment or conscientious objections.
Notably, the first claim in the Complaint below is brought under the Administrative Procedures Act (APA) which has proven repeatedly successful in challenges to the unilateral actions of the Biden Administration.
The second claim is brought under both the First and Fifth Amendments in raising claims of free speech and free association:
“Plaintiffs oppose the gender identity mandate’s requirements of, and restrictions on, their speech including: having to offer and refer for gender interventions; the use of pronouns; medical screening questions; medical coding and record keeping; referrals; policies governing speech and information at their medical practices; assurances of compliance with Section 1557; and mandatory notices of compliance with Section 1557.”
The third claim is under the Religious Freedom Restoration Act (RFRA) which prohibits the federal government from substantially burdening a person’s exercise of religion, unless the government demonstrates that the burden is the least restrictive means of furthering a compelling government interest. 42 U.S.C. § 2000bb-1(a): “The gender identity mandate substantially burdens the Religious Plaintiffs’ exercise of religion by requiring them to engage in the objectionable practices in violation of their beliefs.”
The fourth claim is based on the First and Fifth Amendments in the alleged denial of freedom of religion. Notably, this claim reveals a division among plaintiffs, which the Complaint addresses by creating a subset of claims:
“All Plaintiffs bring this Free Exercise Clause claim except the nonreligious members of ACPeds. CMA asserts the claim on behalf of its members, and ACPeds brings it on behalf of its religious members. Dr. Dassow brings the claim on behalf of herself. Collectively, these are referred to as the Religious Plaintiffs.”
The fifth and final claim is based on federalism that the order on gender identity exceeds Congress’s Article I enumerated powers and transgresses on the reserved powers of the State under the federal constitution’s structural principles of federalism and the Tenth Amendment.
Some of these claims like the federalism challenge will be difficult to maintain since the government maintains national medical rules tied to federal programs. However, this is a major challenge that could force a ruling on whether physicians retain the right to decline procedures or practices based on religious objections.
Here is the complaint: American College of Pediatricians v. Becerra