Sunday, January 08, 2017
New Years' Eve injunction blocks the federal redefinition of the word 'sex'
On New Year's Eve, a federal judge in Texas issued an injunction against what has become known as the "transgender mandate." The injunction prevented enforcement of a new federal regulation issued this spring whose consequences have been hotly debated, which would have gone into effect on Jan. 1.
The Becket Fund, which litigated on behalf of religious healthcare provider networks, has argued ever since the rule was promulgated that it will require many doctors to perform procedures related to gender reassignment, even on children, and even where it violates their medical judgment, let alone their religious beliefs about sex changes.
The state plaintiffs in the case, who had sued alongside the providers, argued (among other things) that their state laws requiring doctors to act on their best medical judgment would be overturned by this new federal rule. They also argued that the rule would require them to provide state employees with insurance plans that cover sex reassignment procedures.
The Obama administration, on the other side (and this has been parroted in most of the media coverage), maintained that this rule merely forbade discrimination against transgendered individuals in healthcare, and that's all, full stop. If this actually were a fair statement of the case, then who could possibly be against that? After all, you don't have to buy into the normalization of gender dysphoria to find it completely immoral to deny treatment to a transgendered person who walks into a hospital with an injury or disease.
But as often happens in these cases, the popular representation is not always the same as the case presented in court. The rule, as the Department of Health and Human Services acknowledged in its own 66-page response to the complaint, would have subjected denials of gender reassignment treament or coverage to administrative and court challenges, in which those making the decisions would have had to justify their medical decisions in such cases as non-discriminatory.
Judge Reed O'Connor issued the preliminary injunction based on the belief that plaintiffs are likely to win the case at trial, and that a failure to enjoin the new rule would cause them irreparable harm.
Congress, through multiple federal laws over the last 45 years, has defined "sex" based on biological science. By using Title IX's definition for sex discrimination and applying it to the concept of "gender identity," HHS tried to slip a more subjective "modern gender" definition of "sex" into the law without Congress.