Can a Catholic Hospital Refuse a Gender-Transition Surgery?

As the new year began, LGBT groups denounced a decision by a federal judge in Texas that blocked, nationwide, federal regulations issued under the Affordable Care Act that barred discrimination against transgendered patients.

As the Washington Times reported, “U.S. District Judge Reed O’Connor is the same judge who, four months earlier, blocked President Obama’s order compelling public schools nationwide to permit bathroom and locker room access on the basis of gender identity.”

The lawsuit against the transgender anti-discrimination rule was brought by the Becket Fund for Religious Liberty, representing the Franciscan Alliance.

“Judge O’Connor’s decision to prevent the Department of Health and Human Services from implementing crucial protections for transgender people seeking healthcare services puts thousands of people at risk of marginalization, harassment, and discrimination at a time they are most vulnerable and in need of inclusive, respectful care,” Sarah Warbelow, legal director for the Human Rights Campaign, said in a statement.

Writing in the blog Health Affairs, Timothy Jost, a professor at the Washington and Lee University School of Law in Lexington, Va., said, “Nothing in the [Affordable Care Act’s] section 1557 rule specifically requires practitioners or health care facilities to provide gender transition services. … The rule does not impose on health care professionals an obligation to provide gender transition services…. It is troubling that this litigation has been promoted based on false statements about the requirements of section 1557, which Judge O’Connor has to a certain extent uncritically accepted.”

But just a few days later, the Washington Post reported that Jionni Conforti, a 33-year-old transgender man, is suing a Catholic hospital for not accommodating his transition-related hysterectomy. The suit referenced both the (now blocked) Affordable Care Act rule and New Jersey’s anti-discrimination statute.

Lambda Legal, which is representing Conforti, said the hospital was not entitled to “decide who their patients are.”

But suing a Catholic hospital for not accommodating a gender-realignment surgery raises many issues about the failure to recognize the difference between a private/religious and public/government facility. If a Catholic hospital has no right not to host a gender transition-related surgery, can a patient demand it also allow elective abortions to be performed?

Campus Social Justice Warriors Strike Again

The Washington Post reports that a coalition of 25 student organizations at the University of Maryland, a public university, has presented a list of 64 demands to the administration.

According to the report:

The petitioners listed the communities of students that participated in the initiative this way: “Marginalized, American Indian, Black, Latinx, LGBTQIA+, Muslim, Pro-Palestine, Undocumented.” No Jewish group at the university signed the list of demands, which include a call for “the active encouragement of faculty and students to engage in discourse and learning about the Palestinians’ struggles and the Boycott Divest and Sanction movement without fear of consequences by the university administration.”

The student’s demands, endorsed by The Pride Alliance at U-Md., include the following:

For the LGBTQIA+ Student Community:
*Converting the Lesbian, Gay, Bisexual, and Transgender (LGBT) Studies program into a department in order to provide curricular autonomy.
*Gender neutral bathrooms in all buildings on campus.
*Multi-stall gender-inclusive bathrooms in every building with multi-stall bathrooms.
*Students be allowed the choice of different gender roommates in the residence halls through random matching.
*Including pronouns in addition to names on student rosters seen by faculty and advisors.
*Implementing a campus wide policy to replace male-female checkboxes with write-in boxes on all forms, surveys, and applications.
*The administration advocate for and defend the Arts and Humanities, as they are one of the departments most sensitive to LGBTQ issues and also one of the most at risk under new state and federal leadership.

For the Muslim Student Community:
*One room in each major building (e.g. SPH, Chemistry, McKeldin etc.) designated for prayer.
*Shuttle services to the Diyanet Center of America for Muslim students to have access to a place of worship and participate in the many activities that the center hosts.
*More classes offered pertaining to Islam and the Muslim world taught by Muslim professors, who will counteract the negativity surrounding the name of Islam that is perpetuated by our culture and media.
*[Responding to the showing of “American Sniper” on campus] Organizations on campus should have better judgement when choosing to show movies that perpetuate false narratives and stereotypes of Muslim and should be held accountable if they do not take this into consideration.

For the Pro-Palestine Student Communities:
*The active encouragement of faculty and students to engage in discourse and learning about the Palestinians’ struggles and the Boycott Divest and Sanction movement without fear of consequences by the university administration.
*The encouragement of equal and positive representation of Pro-Palestinian human rights activists on campus. Specifically, condemning the conflation of Pro-Palestinian activism with racism and Anti-Semitism.

For the Undocumented Student Community:
*A full-time undocumented-student coordinator to advocate for, advise, represent and protect undocumented and “DACAmented students.” (DACA is the Deferred Action for Childhood Arrivals program, which shields some undocumented immigrants from deportation.)
*A full-time immigration attorney for the Offices of Undergraduate and Graduate Student Legal Aid.
*A declaration of the University of Maryland, College Park as a sanctuary campus for undocumented and DACAmented students and their families.
*A significant expansion of mental health services for all students of color, especially undocumented and DACAmented students.

And on and on. The university issued a statement saying “We commend the students for their passionate advocacy and for coming together in solidarity on these issues.”

The LGBT rights movement has for some time been subsumed as part of the grand coalition of the political left, but what today’s campus activism makes clear is how the simple, clearly focused fight for gay legal equality has been left far behind in this brave new world of identity politics and political correctness on steroids.

More. I should clarify that the Pride Alliance endorsed the entire list, so even though the LGBT demands are far from the most egregious, it’s a package deal. The campus Jewish groups, given the thinly veiled let no one call it anti-Semiticism of the pro-Palestinian groups, refused to participate.

Further Annals of Progressivism

Tammy Bruce, who is lesbian and conservative, writes:

A funny thing happened on the way to the Donald Trump inauguration — liberals suddenly became champions of people being allowed to decline participating in something if it violated their conscience.

She was remarking about the response on the left to the story, albeit “fake news,” it turns out, that the Radio City Rockettes were requiring dancers to perform against their will at the Trump inauguration (in actuality, participating in the inauguration is voluntary). Writes Bruce:

During the brief hubbub, actors and other performers understandably came out in support of the dancers’ right to refuse to perform if an event violated their conscience. I also believe there should be an escape clause in cases such as this allowing a performer flexibility. After all, who wants anyone to be forced to do something against their conscience?

Yet it’s fair to say the same liberals who support the Rockettes’ right to not perform are the same people who have no problem with Christian businesses being attacked for declining to participate in something that violates their conscience and faith. In their cases, the refusal to cater or bake a cake for a gay wedding. …

It’s the same double standard we saw recently when, as the Portland (Maine) Press Herald reported:

On the coldest day of the season, a Skowhegan-area propane dealer has a pointed message for would-be customers. “If you voted for Donald Trump for President, I will no longer be delivering your gas, please find someone else,” is the message left for customers that call Turner LP Gas Service, on Canaan Road in Skowhegan.

But if this were a bakery that refused to sell a wedding cake to a gay couple….

It might be said that if not for their double standards, progressives would have no standards at all.

Added: More mendacity:

Writing in Bustle, Cate Carrejo said the government should force Christians to participate in same-sex wedding ceremonies but the Rockettes should not be obligated to perform at the inauguration “because one is discriminatory and the other isn’t.”

And a response:

Pointing to the case of Sweet Cakes by Melissa, an Oregon bakery that was fined $135,000 and forced to close for refusing to make a wedding cake for a lesbian couple, Mr. Gainor said Christian bakers are happy to serve gay people.

“And that’s different — it’s a creative labor,” Mr. Gainor said. “If you wanted something that was in the shop, help yourself, happy to provide it. But if you want me to be involved in your wedding, I can’t do that. It’s a very clear line.”

It’s unfortunate we have to rely on social conservatives to point out the obvious.

Added: Boston Globe columnist Jeff Jacoby: Freedom of association isn’t just for the Rockettes. Right, it isn’t.

More. I’ll segue into another story. Students at the University of Wisconsin-Madison (UW-Madison) are petitioning the school to ban a campus conservative group, Young Americans for Freedom, which has numerous chapters on U.S. college campuses:

The petition further faults YAF for creating a “hostile environment” by “misgender[ing] LGBTQIA+ students” making members of the student government feel “unsafe.”

”We, the undersigned are asking that UW-Madison administration take a hard look at the charter of Young Americans for Freedom … and ideally put the involved students through intensive diversity training and have the charter revoked so Y.A.F. is no longer a campus organization that can create a hostile environment on campus,” the petition reads.

YAF’s thought crime was to invite conservative political commentator, columnist and radio host Ben Shapiro to speak on campus. Shapiro, as it happens, is a never-Trumper, which, as Wikipedia recounts, has brought him under fire from the alt right swamplands. Which you might think would cut him some slack with progressives—if you didn’t actually know any progressives.

Furthermore. Out magazine is still complaining that “It’s telling that when Donald Trump awkwardly waved a rainbow flag during a Colorado rally in October, the banner was upside down.” Which, apparently, was a sign that “Trump’s White House will effectively act as the nation’s largest anti-LGBT hate group.” Oh.

It’s reminiscent of the dismissal of Trump’s July acceptance speech at the GOP convention, when he said: “Only weeks ago, in Orlando, Florida, 49 wonderful Americans were savagely murdered by an Islamic terrorist. This time, the terrorist targeted our LGBTQ community. No good. And we’re going to stop it. As your President, I will do everything in my power to protect our LGBTQ citizens from the violence and oppression of a hateful foreign ideology.” [applause] “I must say as a Republican it is so nice to hear you cheering. Thank you.” (Progressive response: pandering.)

At the October rally, Trump was handed the flag by gay supporters and held it out for the audience, leading Zack Ford, the LGBT editor for ThinkProgress.org, to tweet:

Putting a slogan [“LGBTs for Trump”] on a flag is considered desecration. Also, the flag was upside down (red goes on top). What am I supposed to respect here?

Mind you, it’s not that the words were upside down, it’s that the rainbow flag should have the red stripe on top. Which means it’s not Trump’s fault, but that some incompetent gay person supporting Trump didn’t know which way the flag goes or that writing on the sacred object was an act of “desecration” and probably a hate crime. Sad!

Some, of a more rational bent, might think that Trump’s holding up the rainbow flag was, in itself, what was significant, and in a good way. Such people, however, would not be progressives.

As I noted, the conservative Washington Times ran a supportive op-ed titled “ Donald Trump holds high the flag for gay equality,” which indicated that conservatives were more comfortable with a gay-inclusive GOP than the LGBT establishment is.

Stoking Culture War in North Carolina

The GOP-dominated state legislature in North Carolina failed to repeal the “bathroom bill”—HB2—which requires use of public restrooms and locker rooms based on biological sex rather than gender identity, even though the Charlotte City Council, reportedly as part of a deal, voted to repeal part of its anti-discrimination ordinance prohibiting discrimination in the use of restroom/locker room facilities on the basis of gender identity.

Passage of the Charlotte ordinance triggered state Republicans to pass HB2, leading to a national outcry by LGBT advocates and their corporate allies, who announced various boycotts.

Many GOP legislators were pushed hard by religious right activists to maintain HB2 without revision. On the other hand, some supported a compromise that would have repealed the state law but also put in place what the Washington Post described as “a six-month moratorium on cities passing nondiscrimination ordinances to protect gay and transgender people.” The Washington Times described it as “an amendment that would have prohibited local municipalities from permitting opposite-sex restroom access until a long-term, statewide compromise could be reached—an add-on that helped kill the repeal bill.”

Democratic legislators, following pressure from activists, rejected that compromise, even though their votes, with enough willing Republicans, would have been able to put across a repeal measure containing the amendment.

“It’s clear today that the GOP leadership’s cruelty towards lesbian, gay, bisexual and particularly transgender North Carolinians knows no bounds,” an overheated Chad Griffin, president of the Human Rights Campaign, said in a statement. “For our part, we will continue to fight to defeat all of HB2 and protect North Carolinians no matter what it takes.” In other words, no compromise.

There was distrust all round:

North Carolina Senate Leader Phil Berger, a Republican, said the unwillingness to accept the amendment on the part of Senate Democrats is evidence that Charlotte would have reneged on the compromise and reintroduced its ordinance after the repeal.

A six-month cooling off period doesn’t seem so unreasonable. But as I’ve said before (because it’s true), a great many LGBT-rights activists and social conservative activists have an interest in not settling culture war issues, thereby maintaining the enraged polarization that is so good for partisan political mobilization and fundraising.

A Way Forward, with Much Opposition

Posted at the Christianity Today site is Fairness for All: Evangelicals Explore Truce on LGBT and Religious Rights. It reports on efforts by some in the evangelical community (which includes those whose politics lean liberal) to support federal legislation modeled on a Utah compromise bill that the state enacted last year. Going national, the aim is to “bring together religious liberty defenders and LGBT activists to lay out federal legislation to secure rights for both.”

There’s bad news, however:

…several prominent religious liberty advocates—including the Alliance Defending Freedom and the Ethics and Religious Liberty Commission (ERLC) of the Southern Baptist Convention—that opposed the Utah compromise model aren’t on board with Fairness for All either. … [and] much of the momentum around LGBT advocacy also resists such compromise.

But there’s good news, too:

Even without a specific proposal to parse, evangelical leaders are doubling down on the need for deeper discussion, as well as outreach to government partners and LGBT groups.

It’s a nice thought but a tough sell. As I’ve said before, the idea of letting President Trump sign a federal LGBT rights bill, especially one with (gasp) religious exemptions, would be anathema to the Human Rights Campaign and other Democratic party auxiliaries.

And so the (culture) war wages on. And a decision in Illinois is just more grist for the mill: Christian-owned bed and breakfast must host gay weddings, state panel finds.

Religious Exemptions: Just Like Segregation?

Proposed legislation that would exempt religious nonprofit organizations from an Obama executive order requiring government contractors to follow LGBT nondiscrimination policies is on hold, but the ACLU and its allies are gearing up for battle on behalf of forcing Catholic charities to facilitate adoptions by same-sex couples because, you know, Jim Crow.

As the Wall Street Journal reports:

“What you’ve seen since the election is people see this as a line-in-the-sand moment,” said Ian Thompson, a spokesman for the American Civil Liberties Union. “This is an opportunity to really say, ‘No, we’re not going to allow our taxpayer dollars to be used to fund discrimination and target vulnerable communities across the country.’ ”

Supporters say the exemptions are needed to protect religious groups who help the government through their work with veterans, refugees, the homeless and others. In some cases, religious groups may be the only ones offering those services, they say.

A more-constructive progressive/LGBT movement would see the value of allowing exemptions for religious nonprofits in that the advocates would still get 95% of what they want—the government on record outlawing sexual orientation and gender identity discrimination by contractors—while showing some flexibility for services provided by faith-based groups. But no dice.

It’s possible soon-to-be-president Trump will rescind the order and/or replace it with a version that includes an exemption for religious groups. If he does so, or if he doesn’t and Congress moves ahead with its measure, progressive activists will fight it tooth and nail, because all or nothing serves their mobilization/fundraising agenda.

That’s also why activists will never allow any LGBT anti-discrimination bill to move forward if it includes exemptions for faith-based groups, even though Trump might be willing to sign such a measure. But having Trump sign an LGBT anti-discrimination law would be progressives’ worst nightmare, and they will do whatever it takes to prevent that from happening.

How Identity Politics Sunk Liberalism

The Washington Times editorializes on election winners and losers. Excerpt:

The most deserving loser of all was one Brad Avakian, the Oregon official who fined a baker and his wife $135,000 for declining to bake a wedding cake for two lesbians, because it would violate their Christian beliefs to participate in a same-sex wedding. The bakers offered to find someone else to bake the cake. Paying the fine drove them out of business, and Mr. Avakian counted on the publicity to assure him a career in higher politics, and he ran for Oregon secretary of state. He was trounced by an opponent who was the first Republican to win a statewide race in Oregon in 14 years. Not even a doughnut hole for Mr. Avakian.

This week of Thanksgiving, I’m thankful for that outcome.

On a wider note, an op-ed in the New York Times by Trump critic Mark Lilla calls out liberals’ obsession with identity politics and division over the common principles that bring us together as Americans. He writes:

Hillary Clinton…tended on the campaign trail to lose that large vision and slip into the rhetoric of diversity, calling out explicitly to African-American, Latino, L.G.B.T. and women voters at every stop. This was a strategic mistake. If you are going to mention groups in America, you had better mention all of them. If you don’t, those left out will notice and feel excluded. Which, as the data show, was exactly what happened with the white working class and those with strong religious convictions. Fully two-thirds of white voters without college degrees voted for Donald Trump, as did over 80 percent of white evangelicals. …

We need a post-identity liberalism, and it should draw from the past successes of pre-identity liberalism. Such a liberalism would concentrate on widening its base by appealing to Americans as Americans and emphasizing the issues that affect a vast majority of them. It would speak to the nation as a nation of citizens who are in this together and must help one another. As for narrower issues that are highly charged symbolically and can drive potential allies away, especially those touching on sexuality and religion, such a liberalism would work quietly, sensitively and with a proper sense of scale. (To paraphrase Bernie Sanders, America is sick and tired of hearing about liberals’ damn bathrooms.)

It’s a nice idea, but I wouldn’t count on it happening.

Faith and Freedom Can Get Along Just Fine

Sen. Orrin Hatch, R-Utah, writes:

Our laws can promote freedom from discrimination alongside freedom of religion. An extreme approach that believes one side wins only if the other side loses, that would veto any affirmation of existing protections, will produce nothing but discord and resentment. What we need instead is compromise and good faith, on both sides.

Sound a lot like what Jonathan Rauch has been saying.

I’ll note that this was written as the GOP took the presidency and maintained its majorities in the Senate and House, so no, it’s not an argument being made from political weakness.

[Added: I understand the response “Sure, now they want to compromise,” but activists have stated for 20 years that their goal was to pass sexual orientation (and, more recently, gender identity) nondiscrimination protections, and now there’s a GOP president who might actually support and sign a reasonable bill. So staunch opposition to religious exemptions and requiring that the existing Religious Freedom Restoration Act (signed by Bill Clinton) be excluded from applying to any such measure—as the Human Rights Campaign and others are demanding—is not a strategy that seeks to accomplish anything except to maintain the political standoff so useful in fundraising appeals.]

A win-win compromise—LGBT legal protections with reasonable and traditional exemptions for religious belief, especially among small, independent service providers—would be in the best interest of everyone except for activists whose power and prestige is based on perpetuating the culture wars.

The Rejection of Compromise: Take Two

The polarizing conflict between religious liberty (here without the delegitimatizng “scare quotes” so ubiquitous in LGBT circles) and gay rights/LGBT anti-discrimination law was addressed by Jonathan Rauch, a past Independent Gay Forum contributing author, when he spoke at the University of Illinois Law School recently (viewable here via YouTube, about 40 minutes).

Rauch starts by noting that to understand where we are in the discussion of gay rights versus religious liberty, consider two bills now before Congress:

One is called the Equality Act. It would grant [LGBT] Americans…protection from housing, employment and public-accommodations discrimination under federal law, which is something that we lack at present. It’s championed by Democrats and liberals.

The other piece of legislation is called the First Amendment Defense Act, or FADA. It would pre-emptively shield all those people who object to same sex marriages or who choose to discriminate against same-sex marriages…whether on religious or moral grounds…from any federal sanction or disallowance of benefit…. It is championed, as you would imagine, by Republicans and conservatives.

Though coming at the question from opposite corners, the two bills have something in common: each tries to take all the marbles and leave the other side with nothing, or at least with as little as possible. The Equality Act includes a provision revoking any protection which religious objectors might enjoy under the [federal] Religious Freedom Restoration Act. The First Amendment Defense Act shields the objectors from discrimination while leaving gay people wholly unprotected from discrimination under federal law.

If these bills are opening positions in a negotiation, then what should ultimately happen is legislative bargaining leading to the obvious compromise: protections for gay people plus exemptions for religious objectors.

That, however, seems unlikely to happen because advocates on both sides aren’t interested in forging a compromise—which, Rauch notes, is “emblematic of an unfortunate development: an issue on which a few years ago there seemed to be reasonably good prospects for reasonable accommodations…has hardened into legal and political trench warfare.”

To which I’d add, the polarization/compromise-rejection serves those who don’t actually want a solution because they profit from permanent cultural warfare. And that’s because ongoing cultural war equals (1) big money flowing to advocacy groups and (2) hot-button issues that the political parties can use to fire-up their respective bases.

No Compromise, Declare LGBT Activists

Buzzfeed takes a look at the growing split among LGBT activists groups about whether to pursue the achievable—additional state and perhaps federal legislation outlawing employment and housing discrimination against LGBT individuals—or oppose such legislation unless it also covers public accommodations, which would extend to everything from Christian bakers who don’t want to put two grooms atop a wedding cake to private businesses that want restrooms restricted to biological genders.

Reports Buzzfeed’s Dominic Holden:

One key player is the Gill Foundation…. Gill and several groups that receive its grants, including Freedom for All Americans and the National Center for Transgender Equality, contend this sort of compromise may be their only shot of winning civil rights for millions of LGBT people at the state level in the next decade, even if those gains are incomplete. Leaders of those organizations say they can return to these legislatures in the future to finish the job of passing public accommodations when the issue becomes more palatable.

But groups across the field, including the ACLU and the Human Rights Campaign, have argued the short-term gain approach could amount to entering a box canyon. It may take years to pass laws that provide public protections in the future — if ever. And leaving them out may even send a message that discrimination in public is acceptable.

The ACLU sent a blunt letter to Pennsylvania lawmakers and organizations on June 10 detailing their objections to the compromise bill.

I think anti-discrimination laws are often misused and that applying local ordinances on public accommodations to persecute small business owners who, as a matter of their religious convictions, decline to provide creative services to same-sex weddings is gruesomely authoritarian. But I can accept workplace and housing statutes, and apparently so can a lot of transgendered people. As Buzzfeed notes:

In Ohio, LGBT activists shut down a bill this session that left out transgender people. However, Grant Stancliff, a spokesperson for Equality Ohio, told BuzzFeed News that a bill that includes transgender people, yet leaves out public accommodations, may be an appealing compromise to some activists.

“We have heard from transgender people that the biggest wound is in housing and employment,” he said. “So if we were able to secure that, the material benefit for a lot of people’s lives would be pretty big.”

One has to wonder how much of the “no compromise” intransigence is principled opposition on the all-or-nothing front, and how much is based on knowing that not passing anti-discrimination legislation at all is more likely to keep the base fired up and shelling out the bucks.

More. For more than two decades the Human Rights Campaign has failed to pass its signature legislative goal, which for most of that time was the Employee Non-Discrimination Act (ENDA) and is now the Equality Act. This includes periods with both a Democratic president and Democratic congress (under Bill Clinton and Barack Obama), and periods with a Republican congress but enough GOP support to push ENDA through. What happened? Every time the measure was poised to pass, activist groups would insert some new provision that would lose majority support (adding transgender protections most prominently, and now the expansion to include public accommodations). Or, as with ENDA under Harry Reid’s Senate and Nancy Pelosi’s House, the Democrats would strangely fail to move the bill out of committee, with nary a protest from HRC—until Republicans were back in charge.