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July 05, 2022 HUMAN RIGHTS

The Role of Religious Objections to Transgender and Nonbinary Inclusion and Equality and/or Gender Identity Protection

by Hon. Victoria S. Kolakowski

Protections for transgender rights have increased in recent years, largely through executive action and litigation. Unsurprisingly, these advancements come into conflict with the sincerely held religious beliefs of some people. Ultimately, the clashes of rights are resolved in the judicial arena.

Restrictions on transgender protections currently tend to come in two varieties.

Restrictions on transgender protections currently tend to come in two varieties.

NIKOLAS GANNON ON UNSPLASH

Basis of Religious Objections

Few religious traditions have clearly stated positions on the place of transgender people either in their institutions or society at large, and most of those have been crafted in the past few decades. This is not surprising, because although transgender people have existed throughout time, access to viable medical treatments to modify the human body to conform anatomy and physiology to a person’s gender identity only developed over the past century or so. Direct guidance from holy texts does not exist.

The core basis for many of the faith-based objections to transgender and nonbinary acceptance comes from deeply ingrained theologically grounded worldviews. Certain people see humanity as having been created by a divine being who specifically created humans as male and as female. This serves a reproductive purpose, and, for many, also differentiates the roles that people are expected to play in the world. To them, biological sex is divinely ordained and assigned to each person according to divine will.

It is therefore unsurprising that some people of faith will treat others according to their assigned sex at birth and will consider requiring them to acknowledge another’s gender identity to either be untruthful and/or unfaithful. They will not accept a person’s stated gender identity, and they will not accept the possibility that there are any nonbinary people.

This is spelled out with great clarity in the recent decision in Meriwether v. Hartop et al. No. 20-3289, 2021 WL 1149377, 2021 U.S. App. Lexis 8876 (6th Cir. Mar. 26, 2021). Nicholas Meriwether, a professor at Shawnee State University, challenged his university’s policy that required faculty to use students’ preferred pronouns. As the opinion notes, “Meriwether believes that ‘God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.’ Id. He also believes that he cannot ‘affirm as true ideas and concepts that are not true.’ Id.” [References are to appellant’s brief.]

The district court rejected Meriwether’s free speech and free exercise First Amendment claims, and the Sixth Circuit reversed on those issues and remanded for trial. This was a significant victory for religious objections, and it is doubtful that this is the last time such issues will be litigated.

Restrictions on Transgender Protections

Restrictions on transgender protections currently tend to come in two varieties: exclusion from sex-segregated locations and activities and refusal to accommodate transgender people’s desire for access to medical treatment. These matters are being addressed on both the federal and state levels, and litigation has been based on both federal legislation and constitutional theories.

There are a variety of conflicts in such litigation, testing the scope of protection and the legality of exceptions based on religious conviction. These cases largely involve federal executive action expanding access for transgender people and state-based legislative action restricting such access.

Sex-Segregated Activities

Most disputes involving sex-segregated activities relate to either access to restrooms or sports and sports facilities. Dozens of bills were introduced into state legislatures in 2021 restricting such access for transgender people, especially transgender youth. While not explicitly based on religious reasons, the view announced by Professor Meriwether underpins much of the unspoken rationale and is obvious from statements made by authors and proponents.

This is especially true for legislation regarding transgender youth because many parents are concerned about raising their children in an environment that supports their own religious values. Many of these actions are a response to transgender positive guidance from the U.S. Department of Education promulgated during the Obama administration, which led local school districts to increase access for trans youth to facilities and programs that are sex-segregated, such as restrooms, locker rooms, and sports activities, including competitive sports teams.

Access to Medical Care

Medical Care for Transgender Youth

Consideration of transition-related medical care is a particularly sensitive issue regarding transgender youth. Typical treatment includes the administration of “puberty blockers”—pharmaceuticals that prevent the development of secondary sexual characteristics. Coupled with other hormonal treatments, this can help transgender youth avoid the dysmorphic aspects of developing a body at odds with one’s gender identity and can assist in societal integration in conformance with that gender identity. Unfortunately, although theoretically reversible, these physical developments have potentially long-term impacts.

The dilemma of delaying treatment of transgender youth is that by the time the person is an adult, the benefits of early intervention are lost, and much of the ensuing medical treatment will go to undoing the effects that could have been avoided had intervention been earlier. (For example, undergoing laser hair removal, facial and other reconstructive surgery, etc.) In essence, the decision of whether to undergo such treatment can only be made while the person is a minor. Withholding such treatment is effectively denying the opportunity to forego a great deal of future emotional and physical trauma. Of course, granting such treatment to someone who is confused about their gender identity and later regrets the decision creates its own concerns, an argument that is often relied on by those who seek to restrict access for youth.

Not surprisingly, this has become a topic of both litigation and legislation.

Right of Conscience

Access to medical treatment is a key battleground topic. It is also explicitly grounded in a conflict between religious beliefs and transgender rights because it requires affirmative acts on the part of another, including the medical provider. Much of the legislation and litigation regarding access to medical treatment is focused on the medical provider and not the transgender person.

Key to this discussion is the concept of “right of conscience.” This doctrine began gaining prominence in the 1970s in response to Roe v. Wade and other reproductive rights cases, as medical professionals and institutions were being called on to provide medical treatment that was contrary to their own moral beliefs. The idea is that medical providers should not be punished, such as withholding licensure or funding, based on following their own moral beliefs, even if that resulted in withholding otherwise allowable medical care.

Some people are confused about the basis for this doctrine, which they believe refers to the Hippocratic Oath. Many confuse the phrase “first, do no harm” with a violation of the Hippocratic Oath. That phrase is not in the Hippocratic Oath, although the underlying notion that physicians should avoid unnecessary harm appears in several places. The physician is expected to review all the circumstances and take the most appropriate medical approach.

However, there are sincere faith-based reasons for a medical provider to wish not to provide treatment. If one believes, for example, that a fetus is a full human being, a medical provider may conclude that abortion is a form of murder and would not want to participate for moral and religious reasons.

As a result, there are several federal laws that protect the right of a medical provider to withhold medical treatment that would result in an abortion. One of these, known as “the Church Amendments” (42 U.S.C. § 300a-7 et seq.), covers both abortion and sterilization. Many procedures for transgender people include actions that may or will result in sterilization and thus could be the basis for such protection of the medical providers. Some states have recently considered or adopted legislation expanding the right of conscience to cover care for transgender people.

To some, this may be quite different from their understanding of the typical paradigm regarding civil rights protections. It focuses on the rights of the medical provider, who may be part of a majority, to be free of coercion from the government to provide necessary medical services to transgender people, who are a small minority. This has led to necessary medical services being blocked by providers due to positions of religious conscience.

Religious Freedom and the Affordable Care Act

In 2016, the U.S. Department of Health and Human Services (HHS) adopted a final rule, “Nondiscrimination in Health Programs and Activities,” 81 Fed. Reg. 31,376 (May 18, 2016). It provided guidance on the interpretation of the Affordable Care Act and included language barring exclusion of “gender transition”-related care. This rule was immediately challenged in federal court on religious grounds, alleging Administrative Procedure Act (APA) misinterpretations of Title IX, violations of the First Amendment’s Free Exercise Clause, as well as the Religious Freedom Restoration Act of 1993 (RFRA). The RFRA states that the federal “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless it is the least restrictive means of furthering a compelling governmental interest.

Preliminary injunctions were adopted but became largely moot during President Trump’s administration, as HHS leadership did not intend to enforce the rule. With the election of President Biden, this became a live topic again and has been argued in two prominent cases. The first was brought in North Dakota, in Religious Sisters of Mercy v. Azar, 513 F. Supp. 3d 1113 (D.N.D. 2021), which held that the rule violated the APA and the RFRA. Now retitled Religious Sisters of Mercy v. Becerra, it was argued before the Eighth Circuit Court of Appeals on December 15, 2021.

The second is a parallel case proceeding in Texas, Franciscan Alliance v. Becerra, Civil Action 7:16-cv-00108-O (N.D. Tex. Aug. 16, 2021), which came to a similar conclusion and is currently before the Fifth Circuit Court of Appeals.

Conclusion

Both direct and indirect conflicts between some individuals’ religious freedom rights and attempts to provide care and access for transgender people, particularly transgender youth, is a key current topic of legislation, litigation, and executive action. This is true on both a state and a federal level. It is a politically fraught topic that garners a great deal of debate that is unlikely to diminish in intensity soon. 

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Hon. Victoria S. Kolakowski

Judge, Alameda County Superior Court of California; Adjunct Professor, University of San Francisco School of Law

Hon. Victoria S. Kolakowski was elected in 2010 to the Alameda County Superior Court of California, becoming the first openly transgender trial court judge in the United States. She is an adjunct professor at the University of San Francisco School of Law, where she created a class in the summer of 2021: Equality and Religious Freedom.