How the HHS Transgender Mandate Hurts Catholic Education

Just hours before it was set to go into effect, a federal district court judge in Texas issued an injunction on December 31 against the Obama administration’s harmful “transgender mandate” that, among other things, could have forced Catholic educational institutions to comply with morally objectionable provisions within Obamacare.

This is not the “HHS mandate,” the Department of Health and Human Services (HHS) regulations that mandate coverage for sterilization and contraceptives, including some that cause abortion, in health insurance plans. Because that mandate does not exempt most religious employers, the Supreme Court last year in Zubik v. Burwell unanimously overturned lower court rulings upholding the “HHS mandate” against the Little Sisters of the Poor and participants (including The Cardinal Newman Society) in the Christian Brothers Health Benefits Trust. The Supreme Court instructed the lower courts to seek “an approach going forward that accommodates the petitioner’s religious beliefs,” but the matter has yet to be resolved.

This is a new mandate related to Section 1557 of the Affordable Care Act, which forbids federally funded health-related entities — including nearly all private health insurers and colleges that receive HHS funds for medical education programs — to discriminate on the basis of race, color, national origin, sex, age or disability.

In regulations that were finalized recently, HHS defines “sex” to include “gender identity.” This creates a “transgender mandate,” under which health-related entities must accept a person’s choice of gender that is different from their biological sex at birth. The HHS also defines “sex” to include “termination of pregnancy,” which the Catholic Benefits Association believes could force healthcare institutions to provide employee insurance that covers elective abortion and could interfere with Catholic moral standards for employees who have abortions.

Among the affected institutions is the Newman Guide-recommended University of Mary in Bismarck, N.D., because it has received HHS funds for its medical programs. The Becket Fund has filed a lawsuit in North Dakota federal district court on behalf of the university and other parties.

University of Mary President Monsignor James Shea told The Cardinal Newman Society that the university was awarded a $1.2 million grant for rural healthcare education from HHS this past summer, and would be subject to the transgender mandate because of its large health care education programs. In order to comply, UMary would need to change its health insurance to include coverage for abortion and gender transition procedures and therapies, while also referring for such services out of the university’s student health clinic.

Changing their health coverage in this way would make the university complicit in the evil of abortion, and helping to facilitate gender transition procedures would constitute a denial of the truths about human sexuality and the human person as understood by the Church. While many Catholic colleges seem to have no problem ignoring biological reality and Church teaching regarding gender and human sexuality, Pope Francis and the U.S. bishops have made clear that gender ideology is a serious threat to individuals, families and our society.

The Catholic Benefits Association (CBA) sees yet another possible consequence of the Section 1557 regulations, which could be more far-reaching and damaging than the “HHS mandate.” CBA believes that most private health insurers — including those providing health benefits to employees of religious organizations — may be prevented from categorically excluding coverage related to “gender transition” and from denying claims for “transgender” services that are comparable to other covered services. For instance, if a hysterectomy is covered for serious medical reasons, it might also be covered for “transgender” purposes

Insurers might also be required to include elective abortion coverage for even employees of Catholic schools and colleges. HHS has refused to include a religious exemption in the Section 1557 regulations.

A separate lawsuit challenging the transgender regulation was filed last week by CBA, the Diocese of Fargo and Catholic Charities North Dakota against the regulation’s requirement that group health plans cover gender transition and abortion procedures. The CBA is comprised of Catholic educational institutions, among other entities, and the Diocese of Fargo’s health coverage includes coverage for its Catholic schools.

“We ask only for the freedom to serve consistent with our conscience and our Catholic faith,” said Bishop John Folda of Fargo. “While we do not discriminate against individuals because of their orientation, our Catholic values will not permit us to pay for or facilitate actions that are contrary to our faith.”

The Obama administration has been pushing for the redefinition of sex to include gender identity through its reinterpretation of Title IX, but Title IX includes an exemption for most religious schools and colleges. The HHS transgender mandate provides no religious exemption of any kind — a blatant assault on religious freedom.

Martin Nussbaum, general counsel for the CBA, told the Washington Times that two CBA-member dioceses have already received riders from their insurance companies on implementing the transgender regulation that contain guidelines on the newly covered gender transition procedures. These procedures include “Clitoroplasty (creation of clitoris),” “Labiaplasty (creation of labia),” “Orchiectomy (removal of testicles),” “Penectomy (removal of penis),” “Urethroplasty (reconstruction of female urethra)” and “Vaginoplasty (creation of vagina).”

For Catholic schools and colleges that are subject to this mandate to comply would send a devastating message about commitment to Catholic identity and to leading students to the truth in Christ. The radical ideology behind the HHS transgender regulation ultimately hurts those it claims to help, and by further normalizing this ideology through complicity, Catholic educational institutions would sow serious confusion about the nature of human sexuality — especially among young people.

The recent injunction is by no means the end of the legal battle against this mandate. Catholic education leaders must stand firm in their opposition to this violation of religious liberty to protect the integrity of their institutions and their religious mission.

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