Trump Judge Imagines Doctors Forced To Perform Gender Reassignment Surgery On Newborns In Ruling Blocking Trans Health Mandate

// Remember when nationwide injunctions were bad? It was like 18 months ago, when liberal jurists were blocking Trump’s batshit orders to ban TikTok and close the border to all Muslims. But with a Democrat in the White House, Republicans have come to rely on friendly federal judges in Red states to block the Biden administration at every turn.

In the latest example, US District Judge Daniel Traynor, a 52-year-old Trump appointee in North Dakota, has just blocked HHS and the EEOC from enforcing a mandate that employer-sponsored health insurance cover gender affirming care. And he did it relying the most bizarre reasoning possible.

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Apparently Judge Traynor is worried about a rash of infants having their genders surgically altered at birth.

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In fact, the HHS Guidance encourages a parent to file a complaint if a medical provider refuses to gender transition their child, of any age, including an infant. The thought that a newborn child could be surgically altered to change gender is the result of the Biden HHS Notification and HHS Guidance that brands a medical professional’s refusal to do so as discrimination.

First of all, it’s not the Biden administration’s fault that Judge Traynor and the consortium of religious employers who brought this complaint are plagued with thoughts of forcibly transitioned babies. The blame lies with their own overactive imaginations, or perhaps LSD.

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Second, as of now, this insane scenario as well as any actual harm remains just a “thought,” because the plaintiffs allege no imminent injury here requiring an injunction, much less nationally. And, indeed, there is an appeals process within the statute which allows for some wiggle room.

Nevertheless, Judge Traynor blocked the law nationwide, scoffing that “Government harassment of religious organizations requiring them to prove they are religious or evaluating whether their religious preferences can withstand a case-by-case analysis is a sufficient injury.”

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“The uncertainty left by the Defendants’ coy interpretation will invariably cause a chill on the free exercise of the Plaintiff’s religious doctrine,” he snarks later.

It’s a bit of a strange position, since the ruling is based on the Religious Freedom Restoration Act (“RFRA”), which is functionally a get-out-of-jail-free card for individuals to ignore civil rights legislation if it violates their religious beliefs. Except here, the law is enjoined for everybody, not just those for whom bigotry is a sincerely held article of faith.

And speaking of faith, this whole opinion is a magnum opus of it … but the bad kind.

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Holding that it was illegal to require medical providers to treat trans patients equally — i.e. a doctor who performs breast implants on cisgender women must also provide them to transgender woman — Judge Traynor actually suggested that the Biden administration’s interpretation of the law would make it harder for trans patients to access care.

Beyond the religious implications, the Biden HHS Notification and resulting HHS Guidance frustrate the proper care of gender dysphoria, where even among adults who experience the condition, a diagnosis occurs following the considered involvement of medical professionals. See, e.g., Bostock, 140 S.Ct. at 1738 (noting Plaintiff Aimee Stephens was clinically diagnosed with gender dysphoria by clinicians who recommended she live as a woman). By branding the consideration as “discrimination,” the HHS prohibits the medical profession from evaluating what is best for the patient in what is certainly a complex mental health question.  and even civil liabilities. The Plaintiffs and their members face a very real irreparable harm if they are either forced to comply or if they refuse to comply.

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See, if doctors take time to explore treatment options in accordance with accepted standards for care of transgender patients, they will wind up getting sued. Thanks, Joe Biden!

Clearly the administration will appeal, and Judge Traynor will not be the last word. But good lord these Trump judicial appointees are going to make such a mess for the next 20 years.

Christian Employers Alliance v. United States Equal Employment Opportunity Commission (1:21-cv-00195) [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

Topics

Government, LGBTQ