Advocacy Groups Sue HHS Over “Gender Identity Mandate”

On Thursday a case was filed in the Eastern District of Tennessee at Chattanooga by the American College of Pediatricians, the Catholic Medical Association, and Dr. Jeanie Dassow against Xavier Becerra as Secretary of the Department of Health and Human Services and Robinsue Frohboese as Acting Director of the Office for Civil Rights of the agency. The case concerns the current administration’s policy on gender transition procedures and the mandate to participate in such treatments.

In 2016, the complaint said, HHS used its rulemaking authority under Section 1557 to promulgate a final rule entitled Nondiscrimination in Health Programs and Activities, which interprets discrimination “on the basis of sex” to include discrimination on the basis of gender identity and sex stereotypes. The rule forbade the categorization of gender transition services as experimental and required that a doctor advise patients about these procedures in ways that suggest they are appropriate for gender dysphoria and may not deter patients away from them.

The rule also required that a doctor perform (or refer for) hysterectomies, mastectomies, hormones, drugs, and plastic surgery, if the doctor performs analogous services in other, non-transition medical practices, for example, to biological females seeking cancer treatment. The rule required offices to send in affirmations of following these procedures and could also reject an office from participating in programs such as medicare or Medicaid if they failed to comply.

The plaintiffs claim a variety of injuries, including chilling of the free speech of doctors and facilities, violations of religious freedom, harm to the independent medical judgment of the doctors in counseling regarding the side effects and future impacts of the treatments, and implications that the use of the gender identity will require falsified information in medical records. The counts include claims regarding violations of Administrative Procedures Act, violations of the First and Fifth Amendment regarding free speech and religion, violation of the Religious Freedom Restoration Act, and other causes. The plaintiffs are represented by Alliance Defending Freedom.