In a major decision, the United States Court of Appeals for the Eighth Circuit upheld a lower court on Friday that enjoined the Department of Health and Human Services (HHS) from forcing doctors with conscientious objections to perform gender transition surgeries. The case, Sisters of Mercy v. Becerra, concerns a 2016 rule that religious hospitals may be subject to non-discrimination provisions under the Affordable Care Act and that would require them to perform gender transitions.
Under Section 1557 of the Patient Protection and Affordable Care Act, the HHS and the Equal Employment Opportunity Commission found that anti-discrimination provisions requires doctors to perform and provide insurance coverage for gender transitions.
The district court held “that the [Religious Freedom Restoration Act of 1993 (RFRA)] entitles the . . . [p]laintiffs to permanent injunctive relief from the provision or coverage of gender-transition procedures.”
The Biden Administration brought an appeal by challenging the ability of the plaintiffs to be heard in federal court for failure to establish standing, ripeness, and imminent irreparable injury sufficient to justify permanent injunctive relief.
The Eighth Circuit rejected the appeal. One of the critical factors in the litigation was Bostock v. Clayton County, 140 S. Ct. 1731 (2020) where the Court held that “[w]hen an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex” under Title VII. 140 S. Ct. at 1744.
The Eighth Circuit noted the significance to the instant case:
In other words, the Court interpreted Title VII’s prohibition on “sex discrimination” to include gender identity and sexual orientation. Although the Court “proceed[ed] on the assumption that ‘sex’ . . . refer[s] only to biological distinctions between male and female,” id. at 1739, it determined that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” id. at 1741. But the Court cautioned that it was not “prejudg[ing]” whether its “decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination.” Id. at 1753. The Court also expressed “deep concern with preserving the promise of the free exercise of religion enshrined in our Constitution.” Id. at 1754. “But,” the Court noted, “worries about how Title VII may intersect with religious liberties are nothing new.” Id. In fact, Congress went “a step further . . . in . . . RFRA” by “prohibit[ing] the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest.” Id. “Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws,” the Court explained, “it might supersede Title VII’s commands in appropriate cases.” Id. Thus, “other employers in other cases may raise free exercise arguments that merit careful consideration.” Id.
The Biden Administration had hoped to avoid the merits in the case by challenging the ability of courts to hear these appeals. It is now facing successive adverse decisions that could find their way to the Supreme Court. The result could prove the opposite bookend case for Bostock.
Here is the opinion: Sisters of Mercy v. Becerra