By Mark Pattison
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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