Battles Over Gender-Affirming Care Rage In Courts, State Legislatures
Pope Francis, U.S. Bishops oppose gender theory. Some legal experts expect the issue to end up before the Supreme Court.
By Gary Gately
As battles over gender-affirming care play out in the courts and state legislatures across the country, Catholic leaders from Pope Francis to U.S. bishops condemn such medical treatments as incompatible with God’s will.
Americans as a whole also are split over gender-affirming care: More than half of registered and likely U.S. voters said they would oppose a candidate who frequently speaks about restricting access to gender-affirming care, and 81% say healthcare decisions for youth should be left to parents, according to a survey released Thursday by the LGBTQ advocacy group GLAAD.
Former President Donald Trump and a growing number of other Republicans have vowed to seek to ban gender-affirming care, and some legal experts expect the issue to end up before the U.S. Supreme Court.
In North Dakota, U.S. District Court Judge Daniel M. Traynor ruled Monday that the U.S. Equal Employment Opportunity Commission and U.S. Department of Health and Human Services cannot mandate that the Christian Employers Alliance pay for gender-affirming procedures.
“CEA’s sincerely held religious belief is that male and female are immutable realities defined by biological sex and that gender reassignment is contrary to Christian Values,” Traynor wrote. “As a result, performing or providing healthcare coverage for gender-transition services under the EEOC and HHS coverage mandates impinges upon CEA’s beliefs.”
The ruling came in a lawsuit filed by three families and a pediatrician seeking to block enforcement of a law banning gender-affirming care for children.
North Dakota’s law, enacted in January 2023, stipulates that healthcare providers can face up to 10 years in prison and a maximum $20,000 fine for providing gender-affirming surgeries on minors.
It’s one of at least 20 states where Republican-controlled legislatures have enacted laws banning or restricting gender-affirming care.
The conservative law firm Alliance Defending Freedom represented the business alliance.
“The employers we represent believe that God purposefully created humans as either male or female, and so it would violate their religious beliefs to pay for or perform life-altering medical procedures or surgeries that seek to change one’s sex,” ADF attorney Matt Bowman said in a statement.
“The court was on firm ground to stop the administration from enforcing these unlawful mandates that disrespect people of faith,” Bowman added.
Elsewhere in recent weeks:
In Texas, a judge temporarily blocked Republican Attorney General Ken Paxton’s attempt to force an LGBTQ organization to turn over documents on transgender minors and the gender-affirming care they’re receiving. PFLAG National, which supports families seeking gender-affirming care, sued last week to challenge Paxton’s demand that it turn over the documents.
Travis County District Court Judge Maria Cantú Hexsel said in her injunction that granting Paxton’s request would amount to a “gross invasion” of privacy and violate the organization’s rights to free speech and protection from unreasonable searches. But Paxton said in a statement: “Any organization seeking to violate this law, commit fraud or weaponize science and medicine against children will be held accountable.”
A federal appeals court in Indiana lifted a lower court’s decision blocking the state’s gender-affirming care ban, allowing the law to take effect immediately. The three-judge court gave no explanation in its three-paragraph ruling but said a full opinion and judgment would follow. The American Civil Liberties Union and the ACLU of Indiana, which challenged the ban, said in a statement: “This ruling is beyond disappointing and a heartbreaking development for thousands of transgender youth, their doctors and their families…. We want all the transgender youth of Indiana to know this fight is far from over and we will continue to challenge this law until it is permanently defeated and Indiana is made a safer place to raise every family.” But Todd Rokita, Indiana’s Republican attorney general, said: “Our common-sense state law, banning dangerous and irreversible gender-transition procedures for minors, is now enforceable.”
Idaho asked the U.S. Supreme Court to let the state enforce its strict ban on gender-affirming care for transgender children. That came after a federal judge upheld a lower court decision temporarily blocking the law from taking effect, saying it likely violates transgender children’s 14th Amendment rights to equal treatment. Two transgender youth and their parents — who challenged the law — asked the U.S. Supreme Court to reject Idaho’s request to allow it to enforce it. The law would impose penalties of up to 10 years in prison for doctors who provide gender-affirming medications or surgical treatments to minors.
But at the same time, 11 Democratic-controlled state legislatures have enacted laws to shield from lawsuits or criminal prosecution healthcare providers who perform gender-affirming treatments.
Last week, Pope Francis condemned gender theory at a Vatican conference. It seeks to erase differences between the sexes, contrary to God’s will, he said. (Gender theory suggests that gender is more complex and fluid than the binary categories of male and female.)
“I have asked that studies be carried out into this ugly ideology of our times, which cancels out the differences and makes everything the same,” Francis said. “Canceling out the differences means canceling out humanity.”
Some LGBTQ rights advocates criticized the 87-year-old Jesuit pontiff, including New Ways Ministry, a Catholic LGBTQ advocacy group.
The ministry’s Robert Shine noted in a blog post that Francis has repeatedly met with trans people and that the pope told some trans women at a Vatican luncheon last fall: “God loves us as we are.”
Yet, Shine wrote: “Repeatedly, he also speaks of ‘gender ideology’ in near-apocalyptic terms — and without much clarity. Indeed, his language on gender seems out of sync with his entire pontificate. How can a pope who speaks and writes in existential terms about climate change, who claims the world is experiencing World War III in piecemeal, claim that evolving understandings of gender and sexuality are the worst danger of our times?”
For its part, the U.S. Conference of Catholic Bishops wrote in “On the Moral Limits to Technological Manipulation of the Human Body” last spring: “Any technological intervention that does not accord with the fundamental order of the human person as a unity of body and soul, including the sexual difference inscribed in the body, ultimately does not help but, rather, harms the human person.
The USCCB is expected to stipulate in its directives that Catholic providers must not perform gender-affirming treatments.
Such treatments have received support from leading medical experts and major U.S. medical organizations, including the American Medical Association, the American Psychiatric Association and the American Academy of Pediatrics.
On Monday, New Ways Ministry published an opinion piece by a Catholic pediatric endocrinologist who works in a gender clinic at a major U.S. teaching hospital but chose to remain anonymous because of fears for her safety after she and her colleagues received “vicious emails” because they care for transgender youth.
“Because I am a Catholic physician, I spent many hours discerning whether it was morally acceptable to treat these children,” she wrote under the pseudonym Mary DeAngelis. “I view relieving suffering as my duty as a physician. These children are clearly suffering.”
The pediatrician wrote that many trans youth suffer bullying, family rejection, lack of affirmation of gender identity in school, stigmatization, violence, sexual assault and high rates of self-harm, suicide ideation and suicide attempts.
The Trevor Project, which advocates for LGBTQ young people, reported in 2022 that 59% of trans males had contemplated suicide and 22% attempted it within the preceding year, while 48% of trans females in that age group had contemplated suicide and 12% attempted to end their lives.
(If you or anyone you know is contemplating suicide or are in crisis, contact the 988 Suicide & Crisis Lifeline by dialing 988, or the Crisis Text Line by texting HOME to 741741.)
The pediatrician wrote that the risk is significantly reduced with supportive care, including mental health treatment.
“I have seen this turnaround repeatedly in my practice,” she wrote. “Treating gender dysphoria in children in our society has unfortunately become political. However, treatment of these children does not ‘groom’ them to affirm a gender identity contrary to their biological sex. Instead, this treatment is a support for them through an exceedingly difficult period in the path to affirming their authentic selves.”
