U.S. Pediatricians Sue Biden Administration Over “Gender Identity” Mandates

American College of Pediatricians v. Becerra was filed on Thursday August 26 in the U.S. District Court for the Eastern District of Tennessee. The Alliance for Defending Freedom (ADF) represents the plaintiffs.

Plaintiffs are members of the American College of Pediatricians, members of Catholic Medical Association, and an individual medical doctor. Total individual Plaintiffs include more than 3,000 physicians and other healthcare professionals.

Defendants are officials in President Biden’s Department of Health and Human Services, that part of the administrative arm of the U.S. federal government responsible for carrying out the president’s policies that mandate the medical treatment of individuals, including children, who claim a “transgender” identity, in a way that “affirms” their claimed “gender identity.”

The U.S. District Courts are the trial courts for the federal judicial system. There are mid-level Courts of Appeal that represent 13 geographical regions (also called Circuit Courts) in the federal system, just below the U.S. Supreme Court.

ADF is a politically and religiously conservative organization that has in recent years been engaged in conversation with radical feminists (including WHRC USA President Kara Dansky and Vice President Lauren Levey) about how best to oppose gender identity ideology in law.

The Complaint relies on the following legal claims: 

1. Violation of federal regulatory law (the Administrative Procedure Act)
2. Violation of free speech
3. Violation of religious freedom and free exercise of religion, and
4. Violation of the enumerated powers of Congress under the U.S. Constitution.

Claim 1 asserts that the federal Administrative Procedure Act, enacted in 1946, sets forth the procedures that the federal executive branch is required to follow, including notice and an opportunity for public comment, before changing federal administrative law. The complaint alleges that the Biden Administration failed to follow these mandated procedures when changing its laws and policies by redefining sex to include “gender identity.”

Claims 2 and 3 assert violations of the First Amendment of the U.S. Constitution with respect to free speech and religion.

Claim 4 asserts a technical violation of the Constitution, i.e., that such a mandate is within the exclusive powers of Congress to enact, and not the President. Congress has not (yet) enacted legislation such as the so-called “Equality Act,” which would redefine sex to include “gender identity” throughout U.S. law.

With respect to Claim 1, the Complaint alleges: “The U.S. Department of Health and Human Services (HHS) has reinterpreted Section 1557 of the Affordable Care Act (ACA), which prohibits sex discrimination, to require doctors to perform such interventions by prohibiting discrimination on the basis of gender identity.”

This is demonstrably true. The Biden administration has done this by misinterpreting the 2020 Supreme Court ruling in Bostock v Clayton County and Aimee Stephens v Harris Funeral Homes for the purpose of advancing “transgender status” in law. That ruling held that “transgender status” is protected as an aspect of sex discrimination. As unfortunate as the Bostock ruling was, the Court specifically held that its decision was expressly limited to the workplace discrimination that led to the lawsuit. But the Biden administration has used that ruling to push the inadequately defined and nonsensical concepts “transgender status” and “gender identity” far beyond employment discrimination law.

For example, the website of the Department of Health and Human Services currently states: “Section 1557 [of the ACA] prohibits discrimination on the basis of race, color, national origin, sex (including sexual orientation and gender identity), age, or disability in covered health programs or activities.” It cites 42 U.S.C. § 18116(a), the section of the U.S. Code that contains the ACA, to support this proposition.

However, the ACA does not in fact say that at all. The section of the U.S. Code that the Department cites simply prohibits discrimination based on sex, and says nothing at all about “gender identity.” 

Although plaintiffs practice pediatric medicine, the complaint is not limited to the medical treatment of children. Here are the specific harms to the Plaintiffs, as listed in the Complaint:

Plaintiffs have medical, ethical, or religious objections to the following activities and speech that the gender identity mandate requires of them:

a. Prescribing puberty blockers off-label from the FDA-approved indication to treat gender dysphoria and initiate or further transition in adults and children;

b. Prescribing hormone therapies off-label from the FDA-approved indication to treat gender dysphoria in all adults and children;

c. Providing other continuing interventions to further gender transitions ongoing in both adults and minors;

d. Performing hysterectomies or mastectomies on healthy women who believe themselves to be men;

e. Removing the non-diseased ovaries of healthy women who believe themselves to be men;

f. Removing the testicles of healthy men who believe themselves to be women;

g. Performing a process called “de-gloving” to remove the skin of a man’s penis and use it to create a faux vaginal opening;

h. Remove vaginal tissue from women to facilitate the creation of a faux or cosmetic penis;

i. Performing or participating in any combination of the above mutilating cosmetic procedures to place a patient somewhere along the socially constructed gender identity spectrum;

j. Offering to perform, provide, or prescribe any and all such interventions, procedures, services, or drugs;

k. Referring patients for any and all such interventions, procedures, services, or drugs;

l. Ending or modifying their policies, procedures, and practices of not offering to perform or prescribe these procedures, drugs, and interventions;

m. Saying in their professional opinions that these gender intervention procedures are the standard of care, are safe, are beneficial, are not experimental, or should otherwise be recommended;

n. Treating patients according to gender identity and not sex;

o. Expressing views on gender interventions that they do not share;

p. Saying that sex or gender is nonbinary or on a spectrum;

q. Using language affirming any self-professed gender identity;

r. Using patients’ preferred pronouns according to gender identity, rather than using no pronouns or using pronouns based on biological sex;

s. Creating medical records and coding patients and services according to gender identity not biological sex;

t. Providing the government assurances of compliance, providing compliance reports, and posting notices of compliance in prominent physical locations, if the 2016 Rule’s interpretation of the term sex governs these documents;

u. Refraining from expressing their medical, ethical, or religious views, options, and opinions to patients when those views disagree with gender identity theory or transitions;

v. Allowing patients to access single-sex programs and facilities, such as mental health therapy groups, breastfeeding support groups, post-partum support groups, educational sessions, changing areas, restrooms, communal showers, and other single-sex programs and spaces, by gender identity and not by biological sex; and

w. paying for or providing insurance coverage for any or all objectionable procedures, drugs, interventions, or speech.

Several observations: 

Plaintiffs’ religious claims are not listed first; they are placed in the middle of the other claims that all Americans are likely to support. This seems like a wise decision by the ADF lawyers who drafted the Complaint.

The Complaint scrupulously avoids “trans”-derived language. In fact, item “i” above is remarkable in its plain, accurate descriptions and aggressive use of reality-based language: “. . . mutilating cosmetic procedures” and “ . . .  socially constructed gender identity spectrum.” It would not be surprising if Defendants were to claim to take offense at such language.

An optimistic but realistic view is that it seems possible that a ruling favorable to Plaintiffs on all four claims asserted by Plaintiffs in American College of Pediatricians could effectively halt and reverse most or all incursions of “gender identity” ideology or “trans” ideology into those aspects of American federal administrative law that concern the practice of medicine. A less optimistic view is that a favorable ruling on only the regulatory claim would at least restore the biological reality of sex to the practice of medicine in the United States by rendering the orders in question unlawful for failure to follow statutorily mandated procedural requirements.

The case has been initially reported primarily in right-leaning media, and some of the plaintiffs and their attorneys clearly espouse politically conservative and religious viewpoints. Regardless, this is a well written complaint. It is well grounded in U.S. Constitutional, statutory, and administrative law. The language is reality based. WHRC USA strongly supports the Plaintiffs’ case as it is presented in the Complaint, and perhaps we will become more involved in this litigation in future. This case can be expected to take time to make its way through procedural motions before there is a substantive hearing on the merits; but it is off to a great start.

Lauren Levey, Vice-President, WHRC USA

Kara Dansky, President, WHRC USA

*Please note that the Women’s Human Rights Campaign USA (WHRC-USA) is now officially known as Women’s Declaration International USA (WDI-USA)

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