Obama Mandate on Sex Reassignment Surgery Challenged in Court

In its continued commitment to infringing upon the rights of religious healthcare providers, the Obama administration mandated last spring that doctors and hospitals may not “deny or limit treatment” to those seeking sex reassignment procedures, even when these procedures run contrary to the provider’s religious beliefs and medical judgement. Last Tuesday, the religious providers fought back. Filing a lawsuit in a Texas federal court, a coalition of religious healthcare providers, represented by the Becket Fund for Religious Liberty, charged that Obama’s Health and Human Services Administration “overstepped its bounds” by requiring doctors to participate in sex-reassignment procedures—including sex reassignment services and procedures on young children.

The lawsuit was filed in the U.S. District Court for the Northern District of Texas for a reason. It is the same court that temporarily blocked the Obama administration’s overreach on transgender bathrooms in the nation’s public schools. In that case, the judge challenged the Obama administration’s interpretation of Title IX, which prohibits sex discrimination in schools, colleges, and universities. In his injunction temporarily barring the Obama administration from taking action against school districts that do not provide transgendered individuals access to the bathrooms of their choice, Texas Judge Reed O’Connor said that Title IX’s text is “not ambiguous … the law specifically permits educational institutions to provide separate toilets, locker rooms and showers based on sex, provided that the separate facilities are comparable.”

The current lawsuit filed by the Becket Fund, representing over 17,000 physicians in the states of Kansas, Kentucky, Nebraska, Texas and Wisconsin, along with doctors and hospitals affiliated with the Christian Medical and Dental Associations, Franciscan Alliance, and Specialty Physicians of Illinois, alleges that the Obama administration is requiring doctors to ignore their medical expertise and religious convictions, forcing them to perform gender transition services and procedures.

CHA’s Ambiguous Response to the Transgender Mandate
Faithful Catholics who recall the pivotal role that Sr. Carol Keehan, leader of the Catholic Health Association, played in helping to pass the Affordable Care Act—replete with mandates for the provision of contraceptives and abortifacients by Catholic institutions—will be unsurprised that the Catholic Health Association (CHA) has not joined in the lawsuit over the sex reassignment services mandate. The recipient of one of President Obama’s silver signing pens, Sr. Keehan has been one of the president’s biggest supporters on his healthcare initiatives. Continuing that support, the current issue of Health Care Ethics, the quarterly publication of the CHA, advises readers that the new regulations on sex discrimination mandated by the Obama administration “require that we examine both our clinical and human resources policies.”

In an attempt to present an argument in favor of Catholic hospitals performing sex reassignment procedures, the winter 2016 edition of the CHA’s Health Care Ethics contained two pro sex reassignment articles by ethicists. The first, by Becket Gremmels, Ph.D., System Director of Ethics at CHRISTUS Health in Irving Texas, draws from papal statements to argue that “sex reassignment surgery could be justified from a Catholic moral perspective.” Enlisting Pope Pius XII’s principle of totality, Gremmels argues that according to Pope Pius XII, “the principle of totality in fact does not require a body part to be diseased or pathological to justify its amputation, removal, suppression, or destruction if its normal functioning exacerbates a pathology in another part of the body. Furthermore, Pius XII’s example shows this to be true even when the healthy body part is a reproductive organ.” From Gremmels perspective, if an individual suffers from gender dysphoria, (defined in the Diagnostic Statistical Manual as a condition of being uneasy, uncomfortable or unhappy because of one’s gender) then Pope Pius XII would recognize that “in some cases, a healthy organ that is normal, natural functioning might threaten the health or life of the whole body.” Gremmels illustrates his point with the morally licit example of the removal of both (healthy) testicles in a patient with prostate cancer because the hormones that would be produced without the removal would increase the spread of the cancer.

This hardly compares with the removal of the sex organs of an individual who is “uncomfortable or unhappy because of their gender.” Likewise, in the same winter 2016 edition of Health Care Ethics, Carol Bayley, Ph.D., the Vice President of Ethics and Justice Education at Dignity Health in San Francisco, argues that Catholic healthcare institutions should relate to individuals who suffer from gender dysphoria according to their “gender of choice,” and that Catholic institutions should perform sex reassignment surgery on at least some patients who ask for it. Bayley goes even further in using Catholic teachings to support sex reassignment surgery by claiming that “there is much in Scripture and in Catholic teaching about welcoming the stranger, about the respect for human persons, no matter who they are or what they look like, about the abundance of diversity in nature and the goodness of everything God creates.”

It is likely that there may have been some push-back from readers of the Gemmels and Bayley articles, and to their credit, the Catholic Health Association published a “Response to Bayley and Gremmels on Transgender Ethics” in the summer 2016 issue by E. Christian Brugger, Ph.D., the J. Francis Stafford Professor of Moral Theology at St. John Vianney Theological Seminary in Denver, and Senior Fellow of Ethics at the Culture of Life Foundation in Washington, D.C. Calling Bayley’s use of Scripture “simplistic,” Brugger reminds us that “revelation teaches us that God creates human beings as males and females… In cases where maleness or femaleness is unambiguously expressed in one’s anatomy and genetic make-up, the Christian presumption is that the whole person, body and psyche, is that sex.” Countering Bayley’s claims that patients who undergo sex reassignment surgery experience relief, Brugger cites evidence that the long-term effects of such surgery are deleterious.

There are dramatically higher rates of suicide for those who choose to engage in sex reassignment procedures than for those who do not. A 30-year longitudinal study in Sweden published in 2011 revealed that beginning about 10 years following the surgery the transgendered began to experience increasing mental difficulties. Their suicide mortality rose almost 20-fold above the comparable non-transgender population. Dr. Paul McHugh, psychiatrist-in-chief at Johns Hopkins Hospital was so concerned about the psychological impact of gender identity disorder that he halted the practice of sex reassignment surgery at his institution. He wrote about that decision in the November 2004 issue of First Things and concluded that Johns Hopkins would no longer participate in the “unusual and radical treatment” for mental disorders.

Brugger was even harsher in his criticism of Gremmel’s claim that the teaching of Pope Pius XII on the “principle of totality” justified sex reassignment surgery from a Catholic moral perspective. Stating that “to counsel, perform or accept for oneself any surgery believing or asserting that what’s happening is that person is changing (reassigning) his biological sex would always be contrary to the truth and therefore always impermissible. In other words, to participate in sex reassignment surgery following the assumptions about sex and gender held today by the secular culture would be intrinsically evil.”

Brugger concluded his critique of Bayley’s and Gremmel’s claims by listing several problems sex assignment surgery may cause: First, the problem of scandal: leaders of Catholic healthcare institutions would have a grave responsibility to ensure that any participation in these surgeries do not cause scandal. Second, such surgery would “contribute to culturally flawed attitudes about sex and gender.” Third, Brugger identifies “non-marital and homosexual behavior” as a real problem in response to Bayley who dismisses it as irrelevant to the problems of gender dysphoria. Bayley, says Brugger, fails to consider the case of a gender dysphoric individual who has begun to identify as a member of the opposite sex and proceeds to act out sexually with individuals of the sex with which he or she no longer identifies. Fourth, Brugger identifies the “[b]ad effects on the cooperator” if Catholic hospitals begin to perform these surgeries. He suggests that it may result in hospital leaders and employees growing indifferent to the serious issues at stake in the larger transgender question. Brugger also identifies “a very grave issue” that both authors ignore: “unfairness toward those for whom persons with gender confusion have special moral responsibilities. The spouses and especially the children and other immature dependents of those who begin publicly to identify as the opposite sex, or worse, attempt to alter their bodies to appear like the opposite sex, can be harmed terribly and unfairly by their loved-one’s decisions.”

Brugger concludes his critique of the two articles published in Health Care Ethics by saying that “as apostolates of the Catholic Church, Catholic healthcare institutions have a duty to bear witness to the truths of the Gospel, and against those evils that are especially harmful to people’s temporal and eternal welfare. Gender ideology is certainly one of those evils.” It is difficult to understand why the Catholic Health Association provided a platform to Bayley and Gremmel who called on Catholic hospitals to provide gender reassignment surgery. Even so, we must be grateful to Sr. Keehan for allowing Professor Brugger to correct the errors of Bayley and Gremmel by providing an accurate presentation of Catholic teaching on a growing ethical challenge to the medical profession.

(Photo credit: ChurchMilitant)

Anne Hendershott

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Anne Hendershott is Professor of Sociology and Director of the Veritas Center at Franciscan University in Steubenville, Ohio. She is the author of Status Envy: The Politics of Catholic Higher Education; The Politics of Abortion; and The Politics of Deviance (Encounter Books). She is also the co-author of Renewal: How a New Generation of Priests and Bishops are Revitalizing the Catholic Church (2013).

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