Medical Conscience Rights, Part II: Sexual Minority Conflicts
June 25, 2020
by Andrè Van Mol, MD
Part 1 of this piece on medical conscience rights concluded, “Conscience rights are constitutional priorities as well as professional and personal necessities for free people, and these enjoy strong and historic support from the legislature, executive branch and judiciary. They are worth defending, especially when misrepresented and misunderstood.” But they aren’t simply misrepresented; instead, they are now strongly challenged, a case in point being opposition from GLBTQ+–identified activists and organizations.
Nota bene, I do not regard acronym-identified activists and their organizations as synonymous with rank and file GLBTQ-identified people, some of whom share our concern with the assault on conscience rights and work across the aisle with us.
When Rights Conflict
Rights will conflict in life, and conflicts demand resolutions. Appeals to emotion are grand marketing tools for individuals and groups seeking to gain ground culturally and legally. Women’s rights campaigner Jennifer Bilek wrote, “Although activists present the LGBT movement as a weak, powerless group suffering oppression and discrimination, in truth it wields enormous power and influence—power it increasingly uses to remake our laws, schools, and society.”
Writing of another group, Frank Herbert noted in Children of Dune: “When I am weaker than you, I ask you for freedom because that is according to your principles; when I am stronger than you, I take away your freedom because that is according to my principles.” Christians are having their views suppressed, yet it is Christians in particular who have been cast as aggressors and even causal agents for poor GLBT+ health statistics, which I have provided counter evidence to in a previous blog.
Faith and the faithful are not the bad guys.
Some Recent Supreme Court Decisions
Attorney Matt Sharp of Alliance Defending Freedom (ADF) provided me this concise summary of recent U.S. Supreme Court rulings emphasizing that government cannot compel people to speak or support messages they disagree with or that violate their convictions. Defending conscience becomes even more pressing when the Supreme Court rewrites federal law, as it did in Bostock v. Georgia where Title VII was rephrased to protect affectional preference and gender identity theory, rather than protecting females and males as Congress intended in 1964.
- In Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448, 2463 (2018), the Court reaffirmed that when the government “prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines” the right to free speech.
- In National Institute of Family and Life Advocates (NIFLA) v. Becerra, 138 S. Ct. 2361, 2371 (2018), the Court ruled that the notice requirement imposed by the California law was an unconstitutional content-based restriction on speech. Justice Kennedy (along with Roberts, Alito, and Gorsuch) asserted that the California law “is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.”
Protection from compelled speech—which the First Amendment does—is foundational for liberty and even more urgently necessary when science and free speech join to challenge zeitgeist, such as when evidence-based analysis calls into question gender (transition) affirming therapy.
Right to Refuse to Provide Gender Affirming Therapy (GAT/TAT)
Being able to refuse participation in gender affirming (really, transition affirming) therapy is a legal work in progress. One would think that being able to offer decades of evidence-based professional literature that GAT/TAT is experimental, highly controversial, largely ignores underlying causes and may well be malpractice and child abuse (considering that the natural course of gender anxiety/dysphoria for minors is overwhelmingly desistance) demonstrates sufficient professional and legal cause to decline it, but that has been contested.
Both the Free Exercising clause of the First Amendment and religious freedom laws, federal and/or state, offer support but not certainty. Yet some circuit and district court cases have been encouraging.
The U.S. Fifth Circuit Court of Appeals ruled a court cannot require anyone’s pronoun compliance with gender dysphoric litigants’ direction. This case involved a male federal prisoner (sex offender) who in 2015 declared transgender identity as a woman. The Circuit Court offered three main reasons for their decision.
- Reason #1: “First, no authority supports the proposition that we may require
litigants, judges, court personnel, or anyone else to refer to gender-dysphoric
litigants with pronouns matching their subjective gender identity.”
- Reason #2: Compelling pronouns in court “could raise delicate questions about judicial impartiality.” The court “may unintentionally convey its tacit approval of the litigant’s underlying legal position.”
- Reason #3: What if the pronoun changes? Today’s preferred “her” may next be “xemself.” “Deploying such neologisms could hinder communication among the parties and the court. And presumably the court’s order, if disobeyed, would be enforceable through its contempt power.”
These principles should apply more emphatically when accuracy about sex may be the critical factor guiding a person through gender confusion or helping them avoid needless failures of prevention and errors of medical diagnosis and treatment. Sex is highly consequential.
Another case of particular significance for the CMDA is Franciscan Alliance v. Azar (2019) in the U.S. District Court for the Northern District of Texas. (You can learn more about this case from CMDA, CMDA’s Freedom2Care and Becket.) As background, the 2016 federal transgender mandate required doctors to perform gender affirming procedures on any patient, adult or minor, even against professional judgment. In a temporary injunction in December 2016, the mandate was struck down in a court challenge by nine states, CMDA and multiple religious organizations. In May 2019, the U.S. Department of Health and Human Services (HHS) proposed changing regulations to comply with those judgments. In its final decision on this case on October 15, 2019, the court struck down the 2016 regulation as unlawful, citing the First Amendment and the Religious Freedom Restoration Act.
What to Do if Your Conscience Rights are Challenged
Should your rights of conscience face peril, stand your ground for the sake of free inquiry, reliable science, good medical practice and beneficence. ADF’s “A Legal Guide for Healthcare Professionals” gives these suggestions:
- Discuss the conflict with your employer or the regulating body.
- In consultation with legal counsel, send a letter asking for your rights to be respected.
- Consider defending your legal rights in court.
- Use existing complaint procedures allowing you to file with the right government entity.
Should it come to it, here are links to more formal assistance.
- The U.S. Department of Health & Human Services: How to File a Conscience or Religious Freedom Complaint
- Freedom2Care’s Legal Help
- Alliance Defending Freedom at 1-800-TELL-ADF or ADFlegal.org