WASHINGTON (BP)—The Southern Baptist Ethics & Religious Liberty Commission has urged the Biden administration to retract a proposed rule it says would violate the consciences of individuals and entities that object to gender-transition procedures.
The ERLC filed public comments Monday, Oct. 3, with the Department of Health and Human Services (HHS) regarding a proposal the commission says would require medical professionals, clinics and hospitals to perform and health-insurance companies to cover procedures to which they object.
The ERLC’s letter expressed opposition to the HHS revision of a section of the 2010 Affordable Care Act. The proposed change, announced in late July, would bar discrimination on the basis of sex, which HHS defines as including sexual orientation and gender identity. The reinterpretation of sex discrimination would also include “pregnancy termination” or abortion.
The proposed HHS regulation would largely revive a 2016 rule that became known as the “transgender mandate.” The Trump administration issued a rule in 2020 that rescinded the Obama-era policy by restoring the ordinary interpretation of the word “sex.”
During the public comment period, it was reported that staff members of Vanderbilt University Medical Center (VUMC) were warned in the past that conscientious objection to transgender surgeries, including on minors, “is not without consequences.”
Hannah Daniel, the ERLC’s policy manager, said upon the commission’s filing of comments on the proposed HHS rule, “Despite our culture’s rapid shift on issues of gender and sexuality, Christians hold fast to our belief that God’s design is both intentional and ultimately for our good. It is unthinkable that people of faith may be forced to participate in actions that go directly against their most deeply held religious beliefs.”
The proposed regulation “shows a complete disregard for the legitimate moral, religious and medical concerns of health-care professionals and insurance providers surrounding gender transition services, and the ERLC urges the department to withdraw this harmful rule,” she told Baptist Press in written remarks.
In the public comments, ERLC President Brent Leatherwood focused on the transgender-care requirements in urging HHS’ Office for Civil Rights to rescind the rule.
“Requiring medical care providers and insurance companies to perform or cover gender affirming procedures or undermining their ability to approach the issues of sexual orientation and gender identity as required by their religious beliefs should not be seen as an acceptable outcome for any policy,” he wrote.
Religiously based hospitals typically serve lesbian, gay, bisexual and transgender (LGBT) patients, but “providers who hold moral or religious beliefs cannot perform every procedure a patient requests,” Leatherwood wrote. HHS’ judgment that opposition to “gender transition or gender-affirming care” is not “a sufficient basis” for deciding it “is not clinically appropriate” demonstrates “a complete disregard for the very real religious and evidence-based beliefs of many highly skilled” health-care professionals, he wrote.
Leatherwood expressed “grave concerns” the rule makes no distinction between gender transitions for children and for adults. He described it as “unthinkable” to coerce medical providers to perform or insurance companies to cover “puberty blockers, hormonal therapies and the abhorrent practice of gender reassignment surgical interventions for a child under 18 who does not have the capacity to consent to such life-altering ‘treatments.’”
While citing The Baptist Faith and Message, Southern Baptists’ statement of faith, Leatherwood said the proposed regulation “fundamentally hinders the good and flourishing of our neighbors in expanding beyond the biblical truth of binary sexes and biological realities. … (I)t actually undermines the human dignity of our fellow citizens.”
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.
After the news broke, Tennessee Gov. Bill Lee said an investigation is warranted.
The “pediatric transgender clinic” at Vanderbilt “raises serious moral, ethical and legal concerns,” Lee told The Daily Wire. “We should not allow permanent, life-altering decisions that hurt children or policies that suppress religious liberties, all for the purpose of financial gain.”
Messengers to the 2014 Southern Baptist Convention approved a resolution regarding transgender identity that “affirm(ed) God’s good design that gender identity is determined by biological sex and not by one’s self-perception.” The resolution “regard(ed) our transgender neighbors as image-bearers of Almighty God and therefore condemn(ed) acts of abuse or bullying committed against them.” It also invited all transgender people to trust in Jesus.
A 2016 resolution on sexuality reaffirmed Southern Baptists’ love for those who identify as transgender.