There is a saying that I believe I may have coined – “federal funding equals federal rules.” This means that under the Spending Clause of the US Constitution (Article 1, Section 8, Clause 1), “the federal government (has) the legal authority to offer federal grant funds to states and localities that are contingent on the recipients engaging in, or refraining from, certain activities.”
The Spending Clause applies to federal funds provided to States. Regarding non-state entities, Title VI of the Civil Rights Act of 1964, “prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. As President John F. Kennedy said in 1963: ‘Simple justice requires that public funds, to which all taxpayers of all races [colors, and national origins] contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial [color or national origin] discrimination.’ If a recipient of federal assistance is found to have discriminated and voluntary compliance cannot be achieved, the federal agency providing the assistance should either initiate fund termination proceedings or refer the matter to the Department of Justice for appropriate legal action.”
In 1972, the Civil Rights Act was expanded to include Title IX, which “prohibits discrimination based on sex in education programs and activities that receive federal financial assistance…types of discrimination that are covered under Title IX include sexual harassment…and discrimination based on pregnancy.”
These prohibitions against racial and sexual discrimination sound reasonable on their face. After all, why should the federal government provide taxpayer funds to States or entities (such as private colleges or hospitals) that discriminate against either pregnant women or Asian students? Sounds reasonable, right?
But there is another saying that I did not coin – “the road to Hell is paved with good intentions.”
What began as the good intentions of discouraging racial and sexual discrimination in 1963 and 1972, has led to the Hell of government coercion in the 21st Century.
In June of 2021, the US Department of Education issued a “Notice of Interpretation” that declared “the Department interprets Title IX’s prohibition on discrimination ‘on the basis of sex’ to encompass discrimination on the basis of sexual orientation and gender identity.” Thus, the Department “will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.”
Then, in March of 2022, the Biden Administration issued a statement recognizing a “Transgender Day of Visibility,” in which the Administration described “new actions to support the mental health of transgender children, remove barriers that transgender people face accessing critical government services, and improve the visibility of transgender people in our nation’s data.” These efforts include reminding “all state attorneys general…of federal constitutional and statutory provisions that protect transgender youth against discrimination, including when those youth seek gender-affirming care,” and “(r)eaffirming that transgender children have the right to access gender-affirming health care” by “expanding non-discrimination protections for transgender people in health care, housing, education, credit and lending services, and community safety programs.”
Recently, “(t)he U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) issued a…final rule implementing Section 1557 of the Affordable Care Act (ACA). Section 1557 makes it unlawful for any health care provider who receives funding from the federal government to refuse to treat an individual—or to otherwise discriminate against the individual—based on race, color, national origin, sex, age or disability.”
Again, this sounds reasonable on its face – until this further statement is added; “beginning May 10, 2021, the Department of Health and Human Services (HHS) will interpret and enforce Section 1557’s prohibition on discrimination on the basis of sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity.”
Thus, the slippery slope is made obvious, when we are on the bottom looking up. We began with the noble intention of prohibiting the federal funding of entities that discriminate against people based on their race, sex or place of origin. We now are at the point where a health care provider who accepts federal funding must provide treatment to an individual whatever their sexual orientation or stated gender identity.
Many Americans are in agreement with these rules. But where does this federal mandate leave religious health care providers? What if your faith leads you to conclude that “(c)reated in God’s image and likeness, male and female, our sexuality is a gift from God that we offer back, in love, to Him. Transgenderism violates God’s design.”
Apparently, the answer depends upon which Court you ask.
According to US District Judge Deborah Chasanow of Maryland, “a Catholic hospital,” which was operating “in a manner consistent with Catholic values and principles,” cannot refuse to perform a hysterectomy on a women who identified as a man because the surgery “was meant to treat (the patient’s) gender dysphoria,”
in Hammons v. University of Maryland Medical System Corp., a woman who identified as a male had scheduled a hysterectomy with Defendant St Joseph’s Medical Center, a subsidiary of the University. The Court found that “St. Joseph’s board implemented the Ethical and Religious Directives for Catholic Health Services…as promulgated by the United States Conference of Catholic Bishops, in St. Joseph’s provision of health care,” and that those rules stated that the “[d]irect sterilization of either men or women . . . is not permitted in a Catholic health care institution.” As a result, the hospital cancelled the surgery for Plaintiff Hammons.
Despite this clear objection based upon religious grounds, why did the Court rule against St Joseph’s? “Title IX, Section 1557 prohibits discrimination ‘on the basis of sex’…the undisputed facts establish that the (refusal to perform the hysterectomy) was discrimination on the basis of sex because it was pursuant to a policy against providing genderaffirming care.”
In her decision, Judge Chasanow ignored the Catholic principles under which St Joseph’s hospital operates. It did not matter that “The National Catholic Bioethics Center…has issued a guidance document that states: Gender transitioning of any kind is intrinsically disordered[] because it cannot conform to the true good of the human person, who is a body-soul union unalterably created male or female. Gender transitioning should never be performed, encouraged, or positively affirmed as a good in Catholic health care. This includes surgeries, the administration of cross-sex hormones or pubertal blockers, and social or behavioral modifications.”
Instead, the Court noted that while the Ethical and Religious Directives used by the hospital state that “[d]irect sterilization of either men or women . . . is not permitted in a Catholic health care institution,” those rules also state that “[p]rocedures that induce sterility are permitted when their direct effect is the cure or alleviation of a present and serious pathology and a simpler treatment is not available.”
The Court drove its opinion through this exception. “(Plaintiff) is a transgender man who has been diagnosed with gender dysphoria,” the Court wrote. “Gender dysphoria is a medical condition recognized by the International Classification of Diseases-10 and International Classification of Diseases-11, published by the World Health Organization, and by the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association…the undisputed facts establish that the (refusal to perform the surgery) was discrimination on the basis of sex because it was pursuant to a policy against providing genderaffirming care—a policy that in practice permits all patients to obtain doctor-recommended, medically necessary hysterectomies, except transgender patients seeking treatment for gender dysphoria.”
Most important, on what basis did the Court assert its jurisdiction over St Joseph’s, a private institution? “Defendants have…admitted that they have received federal funds.” Therefore, St Joseph’s “can be held directly liable under Section 1557 for owning and operating a hospital that adheres to discriminatory policies,” regardless of whether or not that hospital maintains a Catholic identity, and adheres to Catholic ethical and religious directives.
Thus, it bears repeating again – it did not matter to Judge Chasanow that St Joseph’s asserted reasons based in religious practice and beliefs for refusing to participate in sexual reassignment surgery. The hospital accepted federal funding, and under the law, their religion based objections were deemed irrelevant.
The Report concludes tomorrow
Photo: Pixabay
Judge John Wilson (ret.) served on the bench in NYC