Eighth Circuit Upholds Injunction on Rule Requiring Gender Transition Surgeries

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


69 thoughts on “Eighth Circuit Upholds Injunction on Rule Requiring Gender Transition Surgeries”

  1. I believe if Trump was president he would have brought them both back . Two is too far forward for Joe and his administration to see that far .

  2. re: Lin

    Guess Biden copied Ronald Reagan like the Iran-Contra scandal. At least Biden is trading for hostages in an above board manner.

    If you remember back then, the Americans held by Iran were miraculously released the day Jimmy Carter left office. Reagan supporters were trying to insinuate there was no secret deal to release hostages, trying to portray Carter as a weak leader.

    1. AZ: Respectfully, methinks you are confusing some history here. The mid-1980s Iran-Contra “scandal” had NOTHING to do with Carter, who left office in January 1981.
      -Guess Biden (Really) copied Obama, -who in 2016, overpaid Iran (in exchange for four Americans, including, importantly, a Washington Post journalist) by sending $400 MILLION to Iran and RELEASING SEVEN (7) convicted Iranians serving time in the U.S. for crimes such as facilitating a satellite agreement between Iran and Russia; providing satellite services to Iran; selling military apparatus to Iran; exporting electronics to Iran; and miscellaneous cyber-hacking attacks. ADDITIONALLY, Obama granted pre-trial pardons to three other Iranians for shipping high-tech equipment to Iran. But wait-there’s more! ADDITIONALLY, Obama surrendered U.S. demands for extradition of FOURTEEN (14) other Iranians for similar crimes.

    2. We trade a gun runner who will probably go back to gun running for some kid who probably hates America and will probably again take a knee during the national anthem. We could have got a marine. But that doesn’t make any sense, now does it.

    3. You haven’t even recovered from Reagan Derangement Syndrome, have you?

      Do you know the Soviet Union collapsed?

  3. Responding to Lin:

    One prisoner was accused of espionage (although he was framed). The other prisoner was accused of possessing a drug less harmful than Russian Vodka. The latter case was much simpler to do in the eyes of the Russian public.

    It had nothing to do with race or sexual orientation.

    1. AZ: Thank you for supporting my comment by opining that Whelan was framed. -You’re right, though, that pot is less (or at least equal) in harm as vodka.– So why, then, did the United States need to “trade” Griner for heinous arms-dealing criminal Viktor Bout? Do you use your Ace card to beat a 2 of Hearts in a card game?
      I stand by my comment that Griner is worth more to Democratic Party votes than Whelan.

      1. “I stand by my comment that Griner is worth more to Democratic Party votes than Whelan.”

        That was a despicable choice: Bring home a creature who hates America. Leave to rot in a Russian prison a man who fought for America.

        There is no more dramatic example of the fact that the Biden administration is run by those who hate America.

        1. As Victor Hansen wrote: We trade lethal terrorists for woke celebrity athletes as if to confirm our enemies’ cynical stereotypes.


        The heinous “Merchant of Death” was traded for a warped, anti-American, flag-kneeling, foreign hyphenate, while a patriotic U.S. Marine and actual American is left behind on the battlefield.

        “That dudn’t make any sense.”

        – George W. Bush

    2. If race or sexual orientation had nothing to do with it – then why was the straight white male Fogle left behind and not bundled along with Griner? Same charges and has been imprisoned longer… That 2 for 1 deal still would have been garbage.

    3. More over we have no idea how many CIA agents we got back in this ” on the surface “bad deal”.” ..it may have been a good deal. We hear it all the time…what a bad deal….it emboldened enemy’s to snatch up more Americans. We’ve seen bad deals…like bergdahl- and then beyond the six Russian spies….but we don’t really ever know what we got in return. But we do know the parade of horrible isn’t really happening….likely because we were smart enough to get leverage in return…..

  4. BRAVO Eighth Circuit! I wonder if Brittney Griner were not a transgender, homosexual Black who knowingly and illegally concealed marijuana into Russia,- maybe Paul Whelan might have been considered Brittney’s equal in the eyes of the Biden administration (when it comes to prospective voting blocs).

  5. Two primary problems here:

    1) Religious institutions shouldn’t be in the hospital business. Be a church or be a hospital. Taxpayers should stop
    subsidizing churches and religious institutions altogether, they should pay the same tax rate as other corporations.
    Seems like a clear 1st Amendment issue since many taxpayers don’t support the religion of the institution.

    2) In some zipcodes, the nearest hospitals are only religious hospitals. If you take your child to the emergency room, you
    have little choice in choosing religious hospitals. If Congress wants to really help, create competing
    non-religious hospitals.

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