By Mark Pattison
Catholic News Service
WASHINGTON (CNS) — The Catholic Benefits Association, which is made up of Catholic employers nationwide, has come out against a federal regulation scheduled to take effect Jan. 1 that redefines “sex” for anti-discrimination purposes to include sexual orientation and gender identity.
The regulation from the Department of Health and Human Services requires that coverage in group health plans “include coverage for gender transition services, hormonal treatments, counseling and a host of surgeries that would remove or transforms the sexual organs of men or women transitioning to the other gender,” said Martin Nussbaum, general counsel for the association, who called it an “extreme rule.”
“Clearly these things are contrary to Catholic doctrine and values, and part of what creates the problem for Catholic organizations,” he said during a Dec. 21 teleconference spelling out the regulation and its potential effects.
The Oklahoma City-based Catholic Benefits Association is made up of Catholic dioceses, hospitals, school systems, religious orders and other entities that offer their employees insurance and benefit programs that adhere to Catholic teaching.
Nussbaum said the regulation is injurious in several ways. Among them, it requires hospitals and physicians — including Catholic ones — to “provide the hormonal treatments and even the surgeries even if it’s contrary to their professional judgment” to patients who want to become a different sex.
The regulation also “mandates access to single-sex facilities,” Nussbaum noted. If a Catholic Charities agency ran a safe house, for example, a transgender woman “would have the right to be admitted,” he added.
Another key objection Nussbaum pointed out is that the regulation has “no exemptions from it. No religious exemption, no accommodation, no church-plan exemption. The only groups that would be exempt from it are organizations that have fewer than 15 employees and don’t receive Medicaid or Medicare funds.”
“Even Medicare and Medicaid don’t cover these service” outlined in the regulation, “and that says a lot,” said Catholic Benefits Association CEO Douglas Wilson.
Wilson said it is “a health care issue” because Catholic employers might not be able to offer health benefits to their employees if what the regulation requires to be covered has to be part of employees’ health plan.
The final regulation was published in May. It applies to implementing Section 1557 of the Affordable Care Act, which provides that individuals cannot be subject to discrimination based on their race, color, national origin, sex, age or disability.
“Frankly, my eyes almost popped out of my head when I saw in the final rule they were going way beyond burdening health care providers and employers. It required us to do a complete analysis of Title IX,” which governs sex discrimination, and Title VII, which Wilson called “the granddaddy of civil rights laws.”
Title IX of the Education Amendments Act of 1972 states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.
Whereas Title IX regulations have “a pretty generous religious organization exemption,” he added, “we were mystified” that the new regulation as published had all of the Title IX language “but left behind the religious exemption.”
A lawsuit invoking the regulation was filed in San Francisco earlier this year by a transgender man against Dignity Health over being denied coverage of gender reassignment surgeries. The California-based health system operates hospitals and ancillary care facilities, including some Catholic facilities, in three states.
Dignity has filed a motion to dismiss the lawsuit. The federal Equal Employment Opportunity Commission cited Title VII in a friend of the court brief on the plaintiff’s behalf.
Asked about the incoming Trump administration with regard to the regulation, Nussbaum said, “The president and his appointees can do a lot to help in this area. A new regulation can be proposed. It can even be effective the date it’s proposed.” One remedy, Nussbaum added, would be a determination of how “‘sex’ can be defined” in federal law and regulations.
Two lawsuits have already been filed challenging the HHS regulation. The Washington-based Becket Fund filed a lawsuit in U.S. District Court for the Northern District of Texas in Wichita Falls on behalf of Franciscan Alliance, a religious hospital network sponsored by the Sisters of St. Francis of Perpetual Adoration, and the Christian Medical & Dental Associations, defending them from the new government regulation. The states of Texas, Kansas, Kentucky, Nebraska and Wisconsin also joined in the suit.
The District Court heard arguments in the case Dec. 20; a ruling was expected before Jan. 1. The plaintiffs’ motion is for partial summary judgment to dispose of the case without a trial. The lawsuit was first filed Aug. 23; later three other states — Louisiana, Arizona and Mississippi — later joined as plaintiffs in the case.
The Becket Fund filed a second lawsuit Nov. 7 in U.S. District Court for the District of North Dakota on behalf of the Sisters of Mercy; the University of Mary, a Catholic university near Bismarck, North Dakota; and SMP Health System. The state of North Dakota has since joined the suit. In this case, the plaintiffs are seeking a preliminary injunction to stop the mandate from going into effect.
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