DOJ Argues Injunction Exempting Religious Employers from Trans Services Addresses Hypothetical Policy

The U.S. Department of Justice (DOJ) recently argued to overturn a federal district court’s injunction that exempts religious employers from required coverage of gender transition surgery. According to the DOJ, a recent North Dakota federal court ruling addressing a similar issue is not pertinent because it dealt with hypothetical enforcement actions rather than actual policy. The case is The Religious Sisters of Mercy, et al. v. Xavier Becerra, et al., case number 21-1890, U.S. Court of Appeals for the Eighth Circuit.

Catholic groups, including the Religious Sisters of Mercy, the Catholic Benefits Association, and other organizations, as well as the Christian Employers Alliance, are challenging federal rulemaking and policy by the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Health and Human Services (HHS) interpreting the Affordable Care Act (ACA). EEOC and HHS officially consider a nondiscrimination provision of the ACA that bars sex discrimination as including discrimination against gender identity.

The Catholic groups sued the federal agencies in North Dakota federal court. That court granted an injunction prohibiting the agencies from requiring the Catholic groups to provide their employees with coverage for gender transition services in January 2021. The federal government appealed the issuance of the injunction to the Eighth Circuit Court of Appeals.

The Christian Employers Alliance filed suit in a North Dakota federal court. Just before the arguments occurred in the Eighth Circuit case, a judge issued an injunction prohibiting the EEOC and the HHS from requiring them to provide gender transition services.

The DOJ argued against the injunctions in both cases as they addressed purely hypothetical enforcement actions based on positions the agencies have not adopted. Neither the EEOC nor the HHS has taken any action against any religious employer or entity with religious objections to providing coverage for gender transition services. The DOJ claims that the religious groups cannot target speculative future enforcement actions; the groups have no standing to bring the claims, and their claims are unripe.

On the other hand, the religious groups in both cases argue that the federal government’s interpretation of the nondiscrimination provision of the ACA concerning gender identity violates various laws. They allege that the policy misinterprets the ACA and Title VII in violation of the Religious Freedom Restoration Act, the First Amendment, and the Administrative Procedure Act.