Franciscan Alliance v. Burwell (USA)

A group of states and collections of religiously affiliated medical professionals are suing the US department of Health and Human Services (HHS) over the directive to interpret the term “sex” in the Affordable Care Act as inclusive of “gender identity”. The plaintiffs argue that by redefining “sex” the HHS are upending longstanding precedents and putting undue burden on to the medical community in the form of 1.) Forcing doctors on pain of significant financial liability to perform procedures that may run contrary to their medical judgement or deeply held religious beliefs 2.) Overriding the longstanding sovereign power of states to regulate state-sponsored healthcare 3.) Exposing the state to litigation from both their employees and patients 4.) Threatening that if the state does not provide expensive transition procedures they will be stripped of federal healthcare funding–jeopardizing their availability to otherwise provide medical care.

The lawsuit alleges that HHS has so loosely defined gender identity as to make nearly any procedure arguably medically necessary to treat gender dysphoria. HHS has stated that some procedures related to medical transition may be required even if not “strictly identified as medically necessary or appropriate.” This interpretation of the directive would mean that the federal government is stepping in to decide finally that any transition procedure be required of any medical professional if they would otherwise perform that procedure on an unhealthy patient. For example, a breast cancer surgeon who performs mastectomies may be required to remove healthy breast tissue from a trans female against their medical judgement. This oversteps the usually trust in medical professionals to, “do no harm” and make decisions in their patients best interests.

The risks and ethics associated with many medical transitioning procedures are well documented and still being debated, even within the trans community, and this re-defining of sex by HHS takes away the ability of doctors to use their best judgement in determining which procedures are most medically necessary. The Christian Medical & Dental Association in particular expressed concern about being required to perform procedures that may be unethical or endanger a child’s development because the child’s parents supports their medical transitioning. In an Ethics Statement released by the group they posit that, “Surgical alteration of sex characteristics has uncertain and potentially harmful psychological effects and can mask or exacerbate deeper psychological problems.” and that “Children lack the developmental cognitive capacity to assent or request such interventions, which have lifelong physical, psychological, and social consequences.”

The regulation also may require doctors to express opinions contrary to what they believe is the best course of action, or may even restrict them from describing a particular procedure as dangerous or experimental. The lawsuit also mentions that medical facilities would be required to open up normally sex-segregated private areas, such as shower facilities, to people based on their gender identity. This alone could disregard others’ already established “legal right to privacy” and open the medical facility up to future litigation from patients. The plaintiffs are also suing over the lack of religious exemptions, and the lack of specification as to how previous religious exemptions may be enacted relevant to this directive.

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