While HHS said it will comply with the Religious Freedom Restoration Act (RFRA), its statement that exceptions will not be required if the government has “a compelling interest” causes the ERLC “to believe that conscience and religious exemptions may not be granted,” Leatherwood wrote.
RFRA is a 1993 federal law that prohibits the government from substantially burdening the free exercise of religion. The government may gain an exemption if it can show it has a compelling interest and is using the “least restrictive means” to further that interest.
The ERLC objected to the proposed regulation when HHS announced it in July. Upon the proposal’s release, HHS Secretary Xavier Becerra said, “Health care should be a right not dependent on looks, location, love, language, or the type of care someone needs.”
HHS’ proposed rule is the latest in a series of actions by the Biden administration during its 18 months in office to support LGBT rights and abortion access. These include executive orders by President Biden regarding both matters.
The proposal builds on HHS’ May 2021 announcement it would interpret federal law banning sex discrimination to include discrimination on the basis of both sexual orientation and gender identity.
Sexual orientation includes homosexuality, bisexuality and pansexuality. In its May 2021 redefinition, HHS described gender identity as “an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.”
Federal courts, however, have not looked favorably on the policy. The U.S. Fifth Circuit Court of Appeals in New Orleans blocked in late August enforcement of the mandate in a case that began in 2016. The unanimous opinion by a three-judge panel upheld a 2021 permanent injunction by a federal court in Texas – an action also taken by a federal judge in North Dakota.
Video of Ellen Wright Clayton – professor of pediatrics, law and health policy at Vanderbilt University – in which she warned staff members who have conscientious objections to helping with transgender transitions was released Sept. 20 by Matt Walsh, columnist with The Daily Wire, a conservative news site. VUMC’s transgender health care includes a Pediatric Transgender Clinic at its children’s hospital.
In the undated video, Clayton said, “If you are going to assert conscientious objection, you have to realize that that is problematic.”
Deciding not to participate “because of your religious beliefs is not without consequences and should not be without consequences,” she said. While acknowledging Vanderbilt probably will accommodate the conscientious objection if a person can find a substitute, she said, “[I]f you don’t want to do this kind of work, don’t work at Vanderbilt.”
A video in which a Vanderbilt doctor spoke about the financial profitability of gender transitions also was released by Walsh.
In a Sept. 21 statement, VUMC said it permits staff members to refuse to take part “in care they find morally objectionable” and does not permit discrimination against such employees. The statement also said VUMC “requires parental consent” for treatment of minors who are to receive transgender care.
