Circuit Court Orders Lower Court to Reconsider Whether to Protect Medical Professionals’ Religious Freedom

Health programs and activities that receive federal funds are barred from discriminating on the basis of race, color, national origin, disability, age, and sex. The Obama administration issued a rule to redefine “sex” to include “gender identity” shortly before the previous president left office. This re-interpretation of federal law impacted medical professionals who oppose performing “transition” surgery. A federal court barred the attempt to reinterpret the law, which likely would have violated the Religious Freedom Restoration Act, among other statutes.

President Donald Trump’s U.S. Department of Health and Human Services (HHS) published a final rule to align regulations with the court ruling, restoring “the rule of law by revising certain provisions that go beyond the plain meaning of the law as enacted by Congress.” But courts blocked the rule, and the Biden administration likely will rescind it.

Becket Law, which represents plaintiffs Franciscan Alliance, Incorporated; Christian Medical and Dental Society; and Specialty Physicians of Illinois,LLC, announced that a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit last week asked a lower court to reconsider whether to grant hospitals and medical professionals a permanent exemption from performing objectionable procedures.

The court noted (PDF – six pages) that much has changed since Obama issued his directive:

HHS repealed the 2016 rule and finalized a new rule in 2020;² the Supreme Court interpreted Title VII’s prohibition of “sex discrimination” to include gender identity in Bostock v. Clayton County;³ applying Bostock’s reasoning to Title IX, two district courts entered preliminary injunctions against the 2020 rule and purported to restore certain provisions of the 2016 rule at the center of this case;⁴ President Biden issued an executive order declaring that his administration would apply Bostock’s interpretation of Title VII to other statutes prohibiting sex discrimination;⁵ the Department of Justice issued guidance specifically instructing federal agencies to apply Bostock’s definition of sex discrimination to Title IX;⁶ and HHS is again considering a new rule.⁷

The court contended that these developments prevent it from ruling on the merits but remanded the case for the lower court to reconsider. President Trump created the Conscience and Religious Freedom division in the HHS in 2018 to protect hospitals and medical professionals from laws or policies that violate their rights. The division still exists, but the Biden administration is pretending it doesn’t.