Texas Judge Gives Doctors "Religious Freedom" to Discriminate Against Trans Patients and Women Who Have Had Abortions

A Texas judge this past weekend issued a nationwide injunction against a federal health rule, allowing doctors to openly discriminate against transgender patients and women who have had an abortion.

U.S. District Judge Reed O'Connor's Saturday ruling was in direct response to an August lawsuit filed against the feds by Texas Attorney General Ken Paxton representing the Franciscan Alliance, a religious hospital organization, and four other states. The lawsuit claimed the Affordable Care Act's nondiscrimination clause violated doctors' religious freedoms by forcing them to perform gender transition procedures and abortions.

That actual mandate, however, prohibited doctors from refusing to treat transgender patients and women who have had abortions in the past.

Regardless, O'Connor echoed the lawsuit's complaints in his ruling, arguing that the ACA only forbids doctors from discriminating against patients based on their sex — not their gender identity or past abortions. To extend the definition would violate the Religious Freedom Restoration Act, he argued in his ruling, by thwarting the "sincerely held religious beliefs of medical facilities and their physicians."

Simply put, the current federal mandate forces employees of religious hospitals to “engage in material cooperation with evil," Judge O'Connor wrote.

This isn't the first time Paxton has brought an anti-trans lawsuit to O'Connor's court. In August, O'Connor issued another nationwide injunction against the Obama Administration's guidelines to let trans students in public schools use the bathroom that aligned with their gender identity. This came directly from a Paxton-filed lawsuit.

"It's troubling to see how Paxton went straight to O'Connor, again," said Chuck Smith, CEO of Equality Texas. "And it's troubling that O'Connor's decision may not even be factually accurate."

Paxton's argument, now apparently backed by Judge O'Connor, remains rooted in the false notion that the ACA's nondiscrimination clause forces doctors to perform an abortion or a gender transition surgery. In reality, the clause simply barred doctors from discriminating against two specific populations — trans people and women who have had an abortion in the past.

In misinterpreting the federal law, O'Connor may have actually found a way to let doctors across the country discriminate against these two types of patients.
But according to trans advocacy organizations, it's not that simple.

“The order does not change the fact that federal law bans gender-based discrimination,” Mara Keisling, executive director for the National Center for Transgender Equality told the Washington Blade this week. “Transgender people who are turned away when they are sick, injured, or otherwise need health care, or are denied insurance coverage they’ve earned or paid for can still seek legal redress in the courts.”

Smith with Equality Texas noted that most ACA provider benefits for 2017 have already been finalized — and he's doubtful if O'Connor's decision has any power to reverse them.

"We'll have to wait and see what real impact this has," he said. "But it's certainly a continuation of our Attorney General's assault against the very existence of trans people."