Consolidation in the health care industry has resulted in some odd situations, as shown by a federal court ruling on January 6 that a “Catholic Hospital” that is owned by a state university system must comply with the anti-discrimination requirements of the Affordable Care Act (ACA), which the court concluded requires the hospital to perform hysterectomies for transgender men seeking the operation for purposes of gender transition, because it performs hysterectomies for cisgender women as prescribed treatment for their medical conditions.
Jesse Hammons, assigned female at birth, was diagnosed with gender dysphoria for which his doctor prescribed a hysterectomy (removal of the uterus) as part of his gender transition. He was scheduled for the procedure to take place at University of Maryland St. Joseph Medical Center, where his doctor planned the operation for January 6, 2020. When his doctor conferred with St. Joseph’s chief medical officer about the impending surgery a few weeks ahead of the scheduled date, he was told, “No, we cannot do transgender surgery at St. Joseph.” The hospital cancelled the procedure.
The contract in which University of Maryland (UM) purchased St. Joseph Hospital from a Catholic organization in 2012 provides that UM must operate St. Joseph “consistent with Catholic values” as set forth in the Ethical and Religious Directives for Catholic Health Services (ERD) promulgated by the US Conference of Catholic Bishops. The Board of St. Joseph formally adopted the ERD as part of its operational policies. Also, UM made an agreement with the archbishop of Baltimore that required St. Joseph Medical Center to comply with the ERD. The ERD categorically prohibits the performance of gender transition treatment at St. Joseph.
UM is a state institution subject to constitutional non-discrimination requirements. Furthermore, it is a recipient of federal money through the Medicare and Medicaid programs, so it is also subject to the non-discrimination requirements under Section 1557 of the Affordable Care Act, which imposes a ban on discrimination on grounds prohibited by a list of federal laws, including Title IX of the Education Amendments of 1972, which forbids sex discrimination. Maryland is within the jurisdiction of the federal Fourth Circuit courts, which have ruled that Title IX forbids discrimination because of gender identity, consistent with the US Supreme Court’s 2020 Bostock decision.
Mr. Hammons eventually got his hysterectomy performed at another hospital many months later, but decided to sue the University of Maryland, its Health System, and St. Joseph’s for violation of the First and 14th Amendments and unlawful discrimination under the Affordable Care Act, seeking damages for his economic and emotional injuries. Hammons is represented by the ACLU and cooperating attorneys from the firm of Patterson Belknap.
The defendants moved to dismiss the constitutional claims, arguing that as state entities, they were immune from suit in federal court. Alternatively, they claimed that if they were regarded as private entities, they enjoyed ecclesiastical immunity as well as protection under the Religious Freedom Restoration Act.
The Supreme Court has embraced the view that the concept of “sovereign immunity” prohibits the states from being sued on federal claims in federal courts unless they have agreed to “waive” their immunity. Senior US District Judge Deborah Chasanow concluded that this doctrine required her to dismiss the constitutional claims against UM and St. Joseph’s, which is wholly owned by UM and thus considered a state actor.
On the other hand, as she found in her January 6 ruling, under the Affordable Care Act, a condition of a health care provider receiving federal money is their agreement to waive any sovereign immunity claim they might have as to enforcement of the ACA against them in federal court.
This set up interesting paradoxes in this case. By contract, UM is required to operate St. Joseph according to the ERD, which bans the performance of any procedure that terminates reproductive capacity unless it is required for medical purposes. St. Joseph argued that UM was the recipient of federal funding, not St. Joseph, so St. Joseph should not be subject to the ACA requirement, but the court found that as a wholly-owned unit of UM, St. Joseph was a part of the federal funding recipient entity. Only fair, since St. Joseph, operating on “Catholic principles,” was found to enjoy sovereign immunity from being sued in federal court on the constitutional claims because it is part of the University of Maryland.
But, argued St. Joseph, even if it was considered a state actor for some purposes, it also had a valid defense under the Religious Freedom Restoration Act (RFRA), since being required to perform the procedure for Mr. Hammons would substantially burden its free exercise of religion. But wait, can an entity that has been found to be a state actor with sovereign immunity against constitutional claims make a free exercise of religion claim? That raises the further question of whether it violates the Establishment Clause of the First Amendment for a state university to agree to operate one of its wholly owned medical centers based on religious principles. Hammons raised this issue in his complaint, but the judge evaded it by focusing on court decisions limiting the application of RFRA to cases brought by the government.
Although the Supreme Court hasn’t spoken to the issue, most (but not all) federal courts faced with the question have determined that RFRA applies only when the federal government is the plaintiff seeking to enforce a federal statute that burdens free exercise of religion by the defendant. In this case, a unit of the state government (University of Maryland St. Joseph Medical Center) is the defendant. The plaintiff, Mr. Hammons, is a private citizen. Although the 4th Circuit Court of Appeals hasn’t spoken to the issue, several trial courts within the district have sided with those courts who find RFRA inapplicable in litigation brought by a private citizen to enforce a claim under a federal statute. Judge Chasanow concluded that St. Joseph could not raise a RFRA defense, because it was not being sued by the federal government. (One might just as well say that an entity wholly owned and operated by a government agency may not raise a RFRA defense, because both the federal and the state governments are prohibited by the First Amendment from “practicing” a religion under the Establishment Clause.)
Getting back to the easier issue in the case, Judge Chasanow had no trouble determining that refusing a hysterectomy to Mr. Hammons was discrimination in violation of the ACA. The Fourth Circuit ruled in 2020, after the Supreme Court’s Bostock decision, that sex discrimination prohibited by Title IX includes discrimination because of transgender status. Because the ACA forbids health care providers from discriminating on grounds prohibited by Title IX, St. Joseph may not discriminate because of transgender status to deny Hammons his hysterectomy.
St. Joseph tried to argue that it was not singling out transgender people, but rather applying a general principle that it would not perform operations to terminate reproductive capacity except for medical reasons. But it is now past the day when defendants can credibly argue that gender dysphoria is not a medical reason to perform a hysterectomy. Numerous courts have now rejected the claim that insurance policy provisions excluding coverage for “cosmetic procedures” can be used to block individuals from getting coverage for hysterectomies that are performed for the purpose of gender transition, and numerous federal courts have concluded, in the context of lawsuits by transgender prisoners seeking health care, that gender dysphoria is a serious medical condition.
The bottom line, of course, was that this scheduled procedure was cancelled explicitly because the operation was for the purpose of gender transition, so it could not logically be treated as other than discrimination due to Hammons’ transgender status, bringing it within the scope of the sex discrimination ban.
Senior Judge Chasanow was appointed by President Bill Clinton.
Editor’s note: After this story was published, Michael Schwartzberg, the senior director of media relations at the University of Maryland Medical System, reached out to Gay City News to provide the following written statement regarding the case:
“The University of Maryland St. Joseph Medical Center and the University of Maryland Medical System are carefully reviewing the decision from Judge Chasanow. We dispute many of the conclusions that were reached in this decision and may be in a position to comment further after additional analysis of the ruling. Legal disagreements aside, we sincerely wish the very best for Mr. Hammons and we support his efforts to seek the highest quality healthcare. We may disagree on certain technical, legal points but compassion for the patients we serve remains foundational to our work. This legal claim stems directly from, and is traceable to, a surgeon mistakenly scheduling a procedure that could not be performed at UM SJMC. Although our offer to perform gender affirming surgery at a different location was declined by Mr. Hammons, the University of Maryland Medical System remains committed to meeting the unique medical needs of transgender individuals and patients who are routinely scheduled by physicians for appointments and procedures at UMMS member organizations.”