Trans Activists May Have Found Backdoor To Force Hospitals To Provide Sex-Change Surgeries

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A lawsuit filed against a hospital for not providing transgender medical procedures could signal a new approach for LGBTQ activists to try to force medical professionals to affirm gender transitions, legal experts told the Daily Caller News Foundation.

The American Civil Liberties Union (ACLU) filed a lawsuit on Feb. 14 on behalf of 18-year-old Caden Kent, a biological female patient identifying as transgender, arguing that the hospital’s policy violated the state’s anti-discrimination law by not providing a sex-change mastectomy. Legal experts who spoke to the DCNF said this argument may come up in more cases as hospitals are penalized for refusing to provide sex-change procedures, and may make it as high as the Supreme Court in time.  (RELATED: ACLU Sues Virginia Education Department Over Model Policies For Trans Students)

Sarah Parshall Perry, a senior legal fellow with the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation, told the DCNF that activists in other states will follow the ACLU’s lead and attempt to argue that the expanded categories of discrimination law to include sexual orientation and gender identity protect their right to transgender procedures.

“First of all, Colorado’s anti-discrimination act is going to keep coming up because they have done two things. They’ve not only expanded the definition of sex to include gender identity or expression and essentially created new categories of protected individuals under state law, but they also expanded the notion of public accommodations under state law as well,” Parshall Perry said.

The ACLU’s argument relies heavily on the Colorado Anti-Discrimination Act (CADA), which prohibits discrimination based on gender identity and disability in a place of public accommodation. The lawsuit claims that gender dysphoria “limits one or more of [Kent’s] major life activities,” and therefore the hospital’s decision not to treat Kent is in violation of the CADA.

Baker Jack Phillips poses in his Masterpiece Cakeshop in Lakewood, Colorado U.S. September 21, 2017. Picture taken September 21, 2017. REUTERS/Rick Wilking - RC1589B6BFE0

Baker Jack Phillips poses in his Masterpiece Cakeshop in Lakewood, Colorado U.S. September 21, 2017. Picture taken September 21, 2017. (REUTERS/Rick Wilking)

The CADA is the same law at the center of two prominent Supreme Court cases, 303 Creative LLC v. Elenis and Masterpiece Cakeshop v. Colorado, which both dealt with the ability of businesses to express their beliefs on gender and sexuality. Ilya Shapiro, director of Constitutional Studies at the Manhattan Institute, told the DCNF that the ACLU’s case would not be about the right of a business owner to speak freely but instead a “battle of the experts” to determine whether hospitals must provide transgender services.

“The question is going to be: is the ACLU’s framing that the hospital will perform these surgeries for cancer but not gender dysphoria correct or the framing that it’s healthy tissue versus diseased tissue,” Shapiro said. “If there is no discriminatory motive, such as the hospital won’t treat people who identify as transgender or nonbinary, regardless of gender identity but instead, the hospital treats people with all gender identities … the courts are going to have to take expert testimony and make a decision whether the hospital is being reasonable.”

“The hospital’s duty to not discriminate is not the same as a duty to provide affirmative ‘gender-affirming care,'” Parshall Perry told the DCNF and noted that more hospitals would likely adopt policies like Colorado Children’s as time goes on, prompting more lawsuits.

Shapiro said that if the court rules in favor of the ACLU, hospitals may find it “hard to resist” performing transgender medical procedures even if they feel it is dangerous. As a result, more medical professionals and hospitals who do not want to perform sex-change medical procedures may be forced to file lawsuits of their own in the coming in the future, according to Parshall Perry.

The courts are currently weighing a similar case from the American College of Pediatricians and the Catholic Medical Association, who sued the Department of Health and Human Services in 2021 after it announced that “discrimination on the basis of sexual orientation; and … discrimination on the basis of gender identity” was prohibited. The plaintiffs argued that the new rule would compel doctors to violate their religious faith by requiring them to perform transgender procedures or face penalties for their refusal.

The case was dismissed by a lower court and then appealed in January to the U.S. Court of Appeals for the 6th Circuit.

Both Shapiro and Parshall Perry said that the ACLU’s case could make its way to the Supreme Court eventually, but Shapiro told the DCNF that cases like these face a “high bar” in order to succeed.

“It’s a matter of standard of care and courts are going to have to take expert testimony and make a decision whether the hospital is being reasonable or if there’s proof of an improper motive,” Shapiro said. “There’s not much jurisprudence on this but without an improper motive, it’s a high bar the challengers face, particularly if there are still other hospitals that are willing to do this kind of surgery that are available to the patient.”

The ACLU and Colorado Children’s Hospital did not respond to the DCNF’s request for comment.

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