A New Front in the Religious Right’s Fight Against Transgender People

On September 16, ACLU filed a motion to intervene in Franciscan Alliance v. Burwell on behalf of the ACLU of Texas and the River City Gender Alliance. In this three-part blog series, we examine why this case matters from a transgender rights, reproductive rights, and religious freedom perspective.

The religious right spent the past 20 years trying to stop same-sex couples from marrying. But after losing that fight last year, they are now engaged in a sustained legal attack on the rights of transgender people. 

A lawsuit filed last month, Franciscan Alliance v. Burwell, that the ACLU has just intervened in is the latest in a series of attempts to codify discrimination against transgender people into law. Through this lawsuit, a group of states and religiously affiliated organizations are asking a judge to strike down a regulation from the U.S. Department of Health & Human Services protecting transgender people from discrimination in health care. Section 1557 of the Affordable Care Act prohibits insurance companies or health care providers receiving federal funds from discriminating on the basis of sex. The HHS regulation makes clear that insurance companies and health care providers cannot deny health care services to trans  people, deny insurance coverage to medically necessary gender-confirming care, or discriminate against trans people at their facilities. 

This new lawsuit opens up a new front in the battle that the religious right has been fighting to roll back protections for trans people.

Last year, cookie-cutter bills were introduced in states across the country that would prohibit transgender people from using public restrooms and legalize discrimination against them, but even these efforts only succeeded in two states — and both of those bills have been blocked by federal courts.    

Unable to win in federal court or the court of public opinion, the religious right adopted a new tactic. With the assistance of the Texas attorney general, whose office is stocked with former attorneys from the same legal organizations that fought to prevent same-sex couples from legally marrying, they are using a courthouse in Wichita Falls, Texas as the launching pad for a sustained attack on the rights of transgender people across the country. The majority of the nation’s federal appeals courts have held that discrimination against transgender people is a form of sex discrimination under our country’s civil rights statutes. But by filing suits in Texas, the Texas attorney general’s office is trying to evade those precedents and ask a single district judge in the Fifth Circuit — one of the most conservative courts of appeals in the country — to issue injunctions affecting the rights of trans people nationwide.

The first target was the Department of Education’s guidance regarding the obligations of schools under Title IX, a statute prohibiting discrimination on the basis of sex in education.  The Department of Education has advised that schools are authorized to provide separate restrooms for boys and girls, and that they must let all boys and girls – including boys and girls who are transgender – use them. 

Even though the Department of Education has issued similar types of guidance documents for decades, Texas argued that the guidance regarding equal access for trans kids was invalid because it was not adopted through formal notice-and-comment rulemaking that is necessary for formal regulations. In an unprecedented decision, Texas and other states obtained a nationwide injunction that directly conflicts with the Fourth Circuit’s decision and blocks the Department of Education from protecting transgender kids under Title IX. 

The day after the court in Texas issued a nationwide injunction, Texas and three other states followed up with a second lawsuit filed in the same court – the Franciscan Alliance v. Burwell lawsuit focused on health care access.

Unlike the guidance from the Department of Education, the HHS regulation went through full notice-and-comment rulemaking. But that has not stopped the states from arguing that the HHS regulation is invalid too, because ultimately these lawsuits aren’t motivated by concerns over rulemaking procedures – they’re driven by an ideological opposition to the very concept of being transgender.

As people across the country are rejecting attempts to discriminate against transgender people in the name of religion and as courts across the country are holding that trans people are protected by our nation’s civil rights laws, these requests for nationwide injunctions represent the last gasp of organizations seeking to codify their own religious disapproval of LGBT people into law.

That’s why the ACLU has filed a motion to intervene in this latest assault on transgender rights — Franciscan Alliance v. Burwell.  No one should have to live in fear of being denied medically necessary health care simply because of who they are.  States and health care providers don’t have the right to insert a religious litmus test into the doctor’s office.

The ACLU is ready to defend those principles in every part of the country — including Wichita Falls, Texas.

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