Texas Judge Issues Nationwide Injunction Against Federal Transgender Health Mandate

Zachary BarrettJan 04, 2017

A federal judge in Texas issued an injunction to stop the enforcement of an Obama administration rule that would prohibit healthcare providers from discriminating against patients based on "gender identity" or 'termination of pregnancy.

The mandate, which was passed in May and went into effect for many on January 1, implements Section 1557 of the Affordable Care Act, which bars discrimination on the basis of sex but extends the definition to include gender-identity.

President Barack Obama's signature health care law, the Affordable Care Act, was passed in 2010, but its provisions have been phased in incrementally.

Judge O'Connor's ruling in the case (Franciscan Alliance, et.al v. Sylvia Burwell, Secretary of the United States Department of Health and Human Services; and United States Department of Health and Human Services) decided a suit against HHS by Franciscan Alliance, Inc. "The ruling ensures that doctors' best medical judgment will not be replaced with political agendas and bureaucratic interference". The guidelines explicitly state that the provision applies to transgender Americans, and applies to any health program or activity that receives federal funding, including hospitals that accept Medicare or doctors who receive medicaid payments.

[The rules place] substantial pressure on Plaintiffs to perform and cover transition and abortion procedures.

"The order does not change the fact that federal law bans gender-based discrimination", Keisling said. And a physician that, for religious or conscientious reasons can not perform a particular procedure, chooses to instead refer a patient to another health care provider may also be determined to be in violation of this new rule.

"Judge O'Connor's conclusion that transgender people and persons who have had abortions are somehow excepted from protection is deeply troubling, legally specious, and morally repugnant."

The 46-page order grants a temporary injunction prevented the Obama administration from ordering federal health officials to enforce rules (mostly social conservative) critics say could violate the religious rights of doctors and other caregivers. As Timothy Jost explains in Health Affairs, "Judge O'Connor is simply wrong in believing that [the rule] requires anyone to pay for or perform abortions".

But Young said the impact could be damaging to transgender people seeking care, who for years have faced denial of insurance benefits or access to doctors they chose due to their gender identity.

Texas Attorney General Ken Paxton filed the lawsuit against the rule in August on behalf of eight states, including Texas, Wisconsin, Nebraska, Kentucky and Kansas, along with the Becket Fund for Religious Liberty, which represented religious-affiliated health providers who object to the regulation on religious grounds.

He ruled that schools must treat a student's gender identity as the student's sex so as to comply with federal nondiscrimination statutes.

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