posted at 8:01 pm on April 27, 2017 by Ed Morrissey
Does California’s non-discrimination law on sexual orientation override a Catholic hospital’s freedom of religious expression? A new lawsuit from the ACLU claims yes, filed on behalf of a patient denied an elective hysterectomy as part of a surgical transition from female to male. Despite having arranged an emergency referral to another hospital which did conduct the operation, the transgender patient and the ACLU want Catholic hospitals forced to perform these surgeries in the future:
More than seven months after a Dignity Health hospital refused a hysterectomy to a Sacramento-area transgender patient, the American Civil Liberties Union filed a lawsuit Wednesday on his behalf.
The lawsuit, filed in San Francisco Superior Court, alleges that Dignity discriminated against Evan Michael Minton, 35, a former state Capitol legislative aide, when he sought a hysterectomy as part of his transition from female to male.
Last summer, Mercy San Juan Medical Center in Carmichael, part of the Dignity Health chain, abruptly canceled Minton’s surgery the day before it was scheduled to take place. His doctor eventually performed the procedure at another Sacramento-area hospital, but the initial denial still causes frustration and disappointment, Minton said. After months of reflection, he decided to take legal action against the San Francisco-based hospital chain.
“It devastated me, and I don’t want it to affect my transgender brothers and sisters the way it affected me,” Minton said Tuesday. “No one should have to go through that.”
The plaintiffs allege that the hospital and its network violated the state’s Unruh Civil Rights Act, which bars discrimination based on several criteria, including “their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.” Later in the code, the law further states that all of these include “a perception” by the person of having any of the “characteristics” of certain protected classes within these criteria. Literally, that could be taken to enforce the Unruh Act on behalf of Rachel Dolezal, but was more clearly intended to give the widest possible coverage for transgendered people.
Note too that this means the lawsuit is based specifically on the transgender motives for the surgery, not a need for prophylactic removal for health reasons, ie, to avoid a genetic predisposition to cancer. The ACLU can’t even argue it was simply for sterilization either, because Catholic hospitals won’t do vasectomies either.
The state law contains no conscience-protection clauses for religious belief, which might make for a strong case — if the lawsuit stays entirely within the California state court system. The prospects for this ending up in federal court are high, however, especially given the stakes involved. The Catholic Church operates over six hundred hospitals in the US, accounting for 15% of all hospital beds in the US as of 2013. If this ruling stands in California, the ACLU would push it in every state, so the Catholic Church has lots of incentive to take this to federal court.
Once there, the church can use the Religious Freedom Restoration Act (RFRA) as well as an explicit appeal to the First Amendment’s protection of religious expression as its defense. The Catholic Church operates its hospitals and clinics as a direct expression of faith, a long tradition that literally extends much further back than the founding of the US. The RFRA law forces stricter scrutiny of laws that infringe on legitimate religious expression (and not just worship) by requiring courts to use a balancing test. Do the plaintiffs raise a question of compelling state interest, and does it require the intervention demanded as the minimum method of serving it?
Even if there were a compelling state interest in transgender surgeries — itself a dubious notion — the court would have to determine that it’s so compelling that it overrides sincere Catholic religious belief on sterilization and gender identity. The Catholic Church has long-standing and often-expressed positions on these issues, and it would be almost impossible for the plaintiffs to argue that it’s not a fundamental doctrine of Catholic faith. Furthermore, the court would have to find that forcing Catholic hospitals to conduct these surgeries would be the least intrusive method of serving that compelling state interest. The circumstances of this case amply demonstrate that’s not the case; not only are there other options in the marketplace, but the respondents helped make arrangements for the surgery to take place using another option. Catholic hospitals are a significant share of the market, but they’re not a monopoly, or anywhere close to it.
Granted, this relies on a rational federal judge hearing the case, and we’ve seen some demonstrations of poor judicial temperament lately, particularly in California. There is little chance that a RFRA defense would not result in an appeal if denied, though, and even if the 9th Circuit might not be terribly sympathetic to that argument, the Supreme Court would almost certainly be. This isn’t a lawsuit that intends to correct an injustice — it’s yet another example of lawfare designed to drive Catholic health services into closure.