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Obama Administration Sued over Rules Requiring Catholic Healthcare Providers to Perform Transgender Surgeries, Abortions

The Catholic Benefits Association (CBA) and the Diocese of Fargo have filed a lawsuit against President Barack Obama’s deputies over new federal rules that, on January 1, 2017, will require Catholic healthcare providers to perform gender transition procedures and abortions.

The new rules will also require Catholic dioceses, religious orders, and other Catholic employers to cover gender transition surgeries and their group insurers to cover surgical abortions in their health plans.

The regulations are part of an Obama administration campaign to redefine the term “sex” in anti-discrimination laws.

On a press call, Martin Nussbaum of Lewis Roca Rothgerber Christie LLP, CBA’s general counsel, who represents the group in the lawsuit, explained:

Title IX prohibits discrimination on the basis of sex. In September of 2015, HHS [Health and Human Services] imposed a rule determining sex as meaning not only male and female, but sexual orientation and gender identity. It reasoned in a healthcare context, that if an employer’s health plan covered a hysterectomy for a woman suffering from cancer, it must also cover it for a trans man seeking to erase reminders of this person’s biological sex.

Similarly, HHS reasoned, said Nussbaum, that “if a hospital or physician might reconstruct a man’s genitalia destroyed by an improvised explosive device in war, it must also construct genitalia for a gender-dysphoric woman journeying toward presenting as a man.”

“I was confident that this rule had such extreme requirements that HHS would not make it final until after the election. I was wrong,” he continued. “It became final on May 18, 2016, and there’s been virtually no press coverage about it.”

Nussbaum added the new rule mandates group health plans must include “coverage for gender transition services, including hormonal treatments, counseling, and a host of surgeries that would either remove or transform the sexual organs of men or women.”

Some of the newly mandated procedures are a penectomy (removal of penis), metoidioplasty (creation of penis, using clitoris), vaginectomy (removal of vagina), and vulvectomy (removal of vulva).

“HHS’s own experts agree that these procedures can harm patients with gender dysphoria in ways that are often irreversible,” said Douglas Wilson, the CBA’s CEO, in a statement. “So even as HHS is requiring doctors to perform these surgeries, it has chosen not to mandate coverage of the same procedures in Medicare and Medicaid. This is blatant hypocrisy coupled with shoddy science.”

“Catholic hospitals provide compassionate care to everyone, regardless of status,” Wilson added. “Patients experiencing gender dysphoria deserve no less. The prime ethic of any healthcare provider is do no harm. These regulations do the opposite.”

Similar rules issued by HHS and the Equal Employment Opportunity Commission (EEOC) require employers to cover gender transition surgeries in their group health plans. However, none of the HHS or EEOC rules has a religious exemption, meaning that all Catholic institutions – dioceses, religious institutes, private schools, colleges, hospitals, and closely held businesses – are required to perform or pay for medical procedures that directly conflict with the teachings of the Catholic faith.

“Even assuming the government has a sound basis for these rules – and it doesn’t – it can accomplish its objectives in other ways,” said Nussbaum. “HHS and EEOC shouldn’t be conscripting the Catholic Church to advance their political agenda.”

CBA chairman Archbishop William Lori said in a statement:

By redefining “sex” to mean both “gender identity” and “termination of pregnancy,” the Obama administration is not only trying to sidestep Congress and impose radical new healthcare mandates on hospitals and employers; it is creating a moral problem for Catholic employers that must be addressed.

CBA, the Diocese of Fargo, and Catholic Charities North America have also filed an emergency motion for a temporary restraining order “in order to prevent immediate irreparable injury to Catholic healthcare providers and Catholic employers.”

“Many of the CBA’s members will become subject to penalties, liability, and potential loss of federal funds on January 1, 2017, when their health plans renew,” the motion states.

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