Thousands Of Doctors Take Legal Action Against Transgender Mandate
Authored by Jacob Burg via The Epoch Times (emphasis ours),
A group of 3,000 doctors and medical professionals is suing the U.S. Department of Health and Human Services (HHS) over a mandate that broadens the term "sex" in federal civil rights statutes to include "gender identity" and "sexual orientation."
The group argues that the rule, among other things, forces physicians who see Medicaid patients or receive federal funding to provide "gender-affirming" care to children who want to transition to the opposite sex. This includes prescribing hormone treatments and puberty blockers and performing surgery such as removing girls' breasts.
The doctors challenging the rule say it will force them to provide that kind of treatment, even if they think it's medically wrong for the patient or if it goes against their religious beliefs. That makes it unconstitutional, they say.
As such, the Alliance Defending Freedom (ADF) filed a lawsuit on behalf of the American College of Pediatricians, an adolescent care obstetrics and gynecology doctor, and Catholic Medical Associates.
The lawsuit, filed on Aug. 26, 2021, asks the court to block HHS from penalizing doctors for refusing to provide gender-altering treatments to children for any reason.
The case initially was dismissed by a lower court when the U.S. Department of Justice (DOJ) filed a motion claiming that it would honor doctors' constitutional right to refuse such treatments.
However, ADF attorney Chris Schandevel said his clients worry that a dismissed case could mean DOJ officials could reverse the department's stance at any time. So he's seeking an injunction to specifically prevent HHS or any other federal agency from disciplining doctors who refuse to give children such treatments for any reason.
The 6th Circuit of the U.S. Court of Appeals in Cincinnati heard oral arguments on the case on Dec. 6. The appellate court has jurisdiction over federal appeals from cases originating in Kentucky, Michigan, Tennessee, and Ohio.
The court's decision could take up to three months. If denied, plaintiffs could seek review from the U.S. Supreme Court.
By Order of the President
The HHS mandate in May 2021 followed an executive order issued four months earlier by President Joe Biden. The order expanded the interpretation of "sex" beyond a person's biology, to include a person's declared "gender identity" or "sexual orientation."
"Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love," President Biden's order states. "Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.
"Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes. People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation."
Federal agencies indicated that this interpretation would extend into discrimination clauses in the Affordable Care Act (ACA). And that could require doctors to provide treatment to children and adults who identify as transgender and want to undergo a "transition" to a new gender identity, Mr. Schandevel said.
The mandate could apply to any health care providers who receive federal money, such as those accepting patients on Medicaid or with ACA health insurance coverage, also known as Obamacare.
This "gender-affirming" care would extend to pediatric services and potentially bring about disciplinary action for physicians refusing for any reason to provide that care to children, Mr. Schandevel said.
The DOJ filed a motion to dismiss the lawsuit on July 19, 2022, claiming that the HHS hasn't mandated that health care providers "perform all kinds of gender transition services, even providers who have religious objections" and that the lawsuit begins on a "false premise" by suggesting that such a mandate exists.
HHS attorneys assert in the motion that their interpretation of President Biden's executive order means "sex discrimination extends to gender-identity discrimination."
But, they write, this doesn't indicate that doctors opposed to providing gender-altering treatments "fall within the scope of unlawful gender-identity discrimination, and HHS has consistently affirmed that the Religious Freedom Restoration Act and other religious defenses may be raised, on a case-by-case basis, to a charge of discrimination."
But for Mr. Schandevel and the doctors he represents, that's not enough.
"Outside of the courtroom, in their public statements, the administration has given every indication that they plan to enforce this gender-identity mandate as broadly as possible," he said.
"They have given every indication that they plan to come after doctors, like our doctors, that we're representing in this case."
Mr. Schandevel cites a notice dated March 2, 2022, from the HHS Office for Civil Rights (OCR) that invites patients and parents to file complaints with the OCR if they feel they have been denied "gender-affirming" care.
"As a law enforcement agency, OCR is investigating and, where appropriate, enforcing Section 1557 of the Affordable Care Act cases involving discrimination on the basis of sexual orientation and gender identity in accordance with all applicable law," the notice reads.
"This means that if people believe they have been discriminated against in a health program or activity that receives financial assistance from HHS, they can file a complaint."
Mr. Schandevel said that doctors who ADF represents shouldn't have to just take the DOJ at its word and just hope that it won't violate the doctors’ rights.
“We should be able to get a court to say that their rights are protected," He said.
"Our doctors have every reason to fear that if they say no, that they're not going to [perform a sex-change operation] that the federal government is going to try to take away their federal funding based on that conscientious practice of medicine."
Concerned Pediatricians
Pediatricians represented by Mr. Schandevel are wary of "gender-affirming" care for children for reasons beyond personal convictions, he said.
Dr. Quentin Van Meter, a pediatrician and pediatric endocrinologist with five decades of experience, said he read "the broad medical literature across the spectrum on the subject” and came to a decision that he can live with his code of medical ethics.
Dr. Van Meter contended that the research used to validate pediatric gender-altering treatments is often "cherry-picked"—researchers make conclusions that don't support the data collected.
Proponents of helping children try to alter their gender identity argue that access to such childhood procedures lowers the rate of suicide among minors who identify as transgender.
They often cite a 2020 study, published by the American Academy of Pediatrics, that purportedly establishes that link.
A 2019 study published in the American Journal of Psychiatry studied the same phenomenon—the alleged lowered risks of suicide for children receiving "gender-affirming" care.
In that study's conclusions, researchers argued that children receiving gender-altering procedures have much higher levels of anxiety and mood disorders before treatment than other children. They wrote that these procedures, such as hormone blockers or surgery, lowered the need for anxiety and mood care once the child received treatment affirming a new gender.
However, that study drew ire from other researchers, who sent letters to the journal's editors challenging the statistical methodology employed in the study.
"Upon request, the authors reanalyzed the data," according to a correction published by the American Journal of Psychiatry on Aug. 1, 2020. "The results demonstrated no advantage of surgery in relation to subsequent mood or anxiety disorder-related health care visits or prescriptions or hospitalizations following suicide attempts in that comparison."
Dr. Van Meter said he believes that "the scientific validity of what they're basing their treatment protocol on is based on so little valid science that it must cease and desist immediately."
The Swedish Approach
Dr. Van Meter also pointed to recent changes to the official position of the governments of Sweden and Norway on the issue.
Sweden, which has had broad tolerance for the LGBT community, recently reversed its previous official position on "gender-affirming" care for minors through its National Board of Health and Welfare (NBHW), saying "the risks outweigh the benefits at this point."
"Uncertain science and newly acquired knowledge means that the National Board of Health and Welfare now recommends restraint when it comes to hormone treatment," a translation of the NBHW announcement reads.
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