‘Predictable’: Supreme Court transgender decision leads to religious liberty legal battle

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A transgender man last week filed a lawsuit against a Catholic-run hospital in Maryland, citing in his complaint June’s landmark Supreme Court decision on transgender rights, fulfilling conservative fears that the ruling would usher in a legal war.

The suit, filed on behalf of Jesse Hammons by the American Civil Liberties Union, alleges that St. Joseph Medical Center, a Catholic-run hospital within the University of Maryland Medical System, violated the First and Fourteenth Amendments by refusing to perform a surgery necessary to Hammons’s transition from woman to man. The suit uses Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County to buttress its argument, namely, that refusing services to transgender people is a form of discrimination on the basis of sex.

When Bostock was decided in June, many social conservatives predicted that it would have dire implications for women’s sports leagues, single-sex dorms on college campuses, and general religious liberty exceptions to nondiscrimination laws granted to faith-based institutions.

“Predictable. Indeed, predicted,” tweeted Ryan Anderson, a senior fellow at the Heritage Foundation, in reference to the arguments in the case culled from Bostock.

Anderson pointed to his own work on transgender activists’ clashes with religious institutions and said that the ACLU’s argument holds no water, since “good hospitals remove diseased organs, not healthy ones. Regardless of ‘identity.’”

The ACLU’s argument rests on two points. The first is that St. Joseph’s, which, until UMMS acquired it in 2012, was owned by the Catholic Church, violates the First Amendment’s establishment clause by operating according to Catholic teaching. The second is that the hospital violated the equal protection clause of the Fourteenth Amendment because it would have performed the procedure, a hysterectomy, if Hammons, a biological woman, needed it for reasons other than gender dysphoria.

The hospital canceled the hysterectomy after learning that Hammons’s uterus was healthy and that the procedure was part of a gender transition. In the complaint, attorneys at the ACLU noted that the hospital left Hammons “shocked, angry, afraid, and devastated” when it stated that it could not perform the operation because of religious reservations.

Gorsuch’s opinions in Bostock, which signaled judicial willingness to treat transgender people as a protected class, spurred the ACLU to take up the case, said senior staff attorney Joshua Block, who is representing Hammons in the case.

“The Supreme Court has been clear that a government-controlled corporation like UMMS must comply with the Constitution,” he said in a statement. “A governmental entity cannot deny medical care based on religious beliefs, and it cannot discriminate against transgender people by denying them health care that is available to everyone else.”

Michael Schwartzberg, a spokesman for the UMMS, said that while unable to comment on any particular case, transgender patients unable to receive procedures at the Catholic-run hospital “can be offered care at other University of Maryland Medical System hospitals.”

The UMMS lawsuit is just one in a series filed by gay and transgender activists, all of which cite Bostock as setting an important precedent for their arguments. A coalition of 22 states and Washington, D.C., on Monday, sued the Department of Health and Human Services for, in June, eliminating an Obama-era rule in the Affordable Care Act that had included nondiscrimination protections for gay and transgender people, as well as people seeking an abortion. HHS replaced the rule with a new one, defining sex in biological terms, a move that was widely seen as offering protections to faith-based organizations.

But in the lawsuit’s complaint, filed by New York Attorney General Letitia James, the states assert that in promulgating its rule, HHS failed “to properly account for Bostock” and how the court aligned its own view of sex with that of the Obama administration. The HHS rule in place, the complaint said, was therefore, “contrary to law.”

“The Rule is also arbitrary and capricious because it disregards Bostock and the weight of applicable federal case law holding that prohibited discrimination on the basis of sex includes discrimination based on sex stereotypes, gender identity, sexual orientation, and pregnancy-related conditions,” the complaint added.

The complaint asks that HHS roll back the rule, in agreement with the Supreme Court’s understanding of sex.

When the Bostock decision was delivered in late June, many religious liberty advocates speculated that the way in which Gorsuch wrote his majority opinion invited more litigation on the issue. Gorsuch wrote that although the court is “deeply concerned” with preserving the free exercise of religion in the United States since Bostock did not specifically address any religious liberty concerns, those concerns were “questions for future cases.” Gorsuch indicated, however, that the court would likely look favorably on religious liberty cases that resulted from the Bostock decision.

When looking broadly at the Supreme Court’s religious liberty decisions in 2020, Michael Moreland, a professor of law and religion at Villanova University, said that in the coming years, the court will attempt to give concessions to both gay and transgender groups and religious people when they clash.

“You start to see a way in which the court is trying to balance, on the one hand, protections for gay rights, and on the other hand, protections for religious freedom,” Moreland said in reference to Bostock.

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