When Supreme Court Justice Neil Gorsuch redefined “sex” in federal law, twisting federal bans on sex discrimination to include discrimination on the basis of sexual orientation and transgender identity, his colleague Samuel Alito rightly warned that the decision would wreak havoc on the health care industry. Almost exactly one month later, the ACLU filed a lawsuit to force a Roman Catholic hospital to perform transgender surgery in violation of the Hippocratic Oath, citing none other than Gorsuch’s opinion.
In Hammons v. University of Maryland Medical System (UMMS), a biological female who identifies as a transgender man, Jesse Hammons, claims St. Joseph Medical Center, a hospital operated by UMMS, unlawfully discriminated against her by refusing to perform a hysterectomy to remove a healthy uterus. The lawsuit would force Catholic hospitals to violate the Hippocratic Oath by removing a fully-functional organ and permanently sterilizing patients.
Under the Ethical and Religious Directives for Catholic Health Care Services established by the U.S. Conference of Catholic Bishops, Catholic hospitals may not perform procedures that induce sterility unless “their direct effect is the cure or alleviation of a present and serious pathology and a simpler treatment is not available.”
St. Joseph hospital does perform hysterectomies in order to treat serious medical conditions that require such a drastic surgery, such as “uterine fibroids, endometriosis, pelvic support problems, abnormal uterine bleeding, chronic pelvic pain, and gynecological cancer.”
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According to Hammons and the ACLU, Hammons’ gender dysphoria (identifying with the gender opposite one’s birth sex) is a serious condition requiring hysterectomy. The lawsuit refers to the hysterectomy as a “medically necessary treatment relating to his [sic] diagnosis of gender dysphoria.” The hospital had scheduled the surgery for the plaintiff on January 6, 2020, but canceled the surgery because it would violate the Hippocratic Oath.
The lawsuit claims that canceling the surgery involved discrimination on the basis of sex in violation of the Fourteenth Amendment’s Equal Protection Clause and the Affordable Care Act (a.k.a. Obamacare). Since UMMS operates St. Joseph as a Catholic hospital, the lawsuit also claims that the alleged discrimination violated the Establishment Clause of the First Amendment.
The key point at issue revolves around whether or not transgender surgery — in this case, hysterectomy — is “medically necessary” or actively harmful. While many medical establishments have rushed to embrace the transgender bandwagon, many formerly transgender people have rejected their transgender identities and lamented the horrific results of “gender affirmation” surgery. One 19-year-old man who temporarily identified as a woman and had surgery to remove his male genitals and replace them with a simulated female version, described the result as a “Frankenstein hack job.”
Since Catholic teaching holds fertility to be an essential bodily function, it regards elective sterility as immoral, an attack on God’s design for the human body. Yet transgender activists and pro-transgender health professionals regard transgender surgery as essential to alleviate the emotional distress of gender dysphoria.
Rather than accepting that Catholic hospitals will not perform such procedures and seeking them elsewhere, transgender activists and the ACLU have mounted a lawsuit attempting to force Catholic hospitals to violate the Hippocratic Oath and agree to perform surgeries that they consider to be immoral.
In forcing this conclusion, the ACLU cited Bostock v. Clayton County (2020), the Supreme Court case in which Neil Gorsuch — a confessed originalist — led the Court’s four liberals in redefining “sex” to include transgender identity and sexual orientation. In doing so, Gorsuch claimed to be upholding originalism, but when Congress passed the Civil Rights Act of 1964, representatives clearly did not intend to prevent discrimination on the basis of sexual orientation or gender identity — and the term “sex” does not include those identities.
Yet Gorsuch strained the bonds of logic to claim that when an employer “intentionally fires an individual employee based in part on sex.”
The ACLU lawsuit cited Bostock in claiming, “Discrimination based on the fact that a person is transgender or needs to undergo gender transition is discrimination that would not occur but for the person’s sex.”
In this case, however, transgender identity is irrelevant. The only thing that matters is gender dysphoria. The Catholic hospital would deny any woman seeking a hysterectomy who does not have a medical condition where her uterus is causing physical problems for her body. The pro-transgender doctors claim that the mental condition of gender dysphoria turns a perfectly healthy uterus into a dangerous medical condition, but the Catholic hospital disagrees.
The only so-called discrimination involves rejecting the transgender orthodoxy in medicine. The case is not really about “discrimination” at all — it is a weapon to force Catholic hospitals to endorse the transgender redefinition of health care.
Supreme Court Justice Samuel Alito presciently warned that Gorsuch’s decision would open the door to this kind of challenge.
“Healthcare benefits may emerge as an intense battleground under the Court’s holding,” Alito warned. “Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery.”
“Such claims present difficult religious liberty issues because some employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs,” he explained.
Bostock also causes significant problems for a recent rule promulgated by the Department of Health and Human Services (HHS) under President Donald Trump. The rule rightly defines sex as biological sex and reverses the Obama administration on these issues, yet the Supreme Court’s ruling suggests such a rule might be unconstitutional.
Bostock gave the ACLU’s ridiculous “discrimination” case a new basis in American law. As University of Dallas teaching fellow Ryan T. Anderson explained, “For a discrimination claim to be successful, you’d have to argue that a patient with a cancerous uterus is comparable, similarly situated to a patient with a healthy uterus. Good hospitals remove diseased organs, not healthy ones. Regardless of ‘identity.'”
It is truly tragic that Neil Gorsuch made such a ridiculous argument palatable — in the name of originalism, no less!
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.