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 appears to be 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. Hammons v. University of Maryland Medical System Corporation, 2023 WL 121741, 2023 U.S. Dist. LEXIS 2896 (D. Md., Jan. 6, 2023).
Jesse Hammons, identified as 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 scheduled 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 Medical Systems purchased St. Joseph Hospital from a Catholic organization in 2012 provides that UMMS 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 U.S. Conference of Catholic Bishops. The Board of St. Joseph formally adopted the ERD as part of its operational policies. Also, UMMS 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.
While University of Maryland is a state institution subject to constitutional non-discrimination requirements, UMMS argues that it is separately incorporated as a health care institution and is not part of the University of Maryland. However, 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 4th Circuit courts, which have ruled that Title IX forbids discrimination because of gender identity, consistent with the U.S. 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 Fourteenth 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, the 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 U.S. District Judge Deborah Chasanow concluded that this doctrine required her to dismiss the constitutional claims against UM, UMMS and St. Joseph’s. She appears to have considered them to be state actors.
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, UMMS 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 UMMS, not St. Joseph, was the recipient of federal funding, so St. Joseph should not be subject to the ACA requirement, but the court found that as a wholly-owned unit of UMMS, St. Joseph was a part of the federal funding recipient entity. Only fair, since St. Joseph, although operating on “Catholic principles,” was found to enjoy sovereign immunity from being sued in federal court on the constitutional claims because the court considered it to be part of the University of Maryland — which it claims it is not.
St. Joseph also argued that it 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 by the court to be a state actor with sovereign immunity against constitutional claims make a free exercise of religion claim? Which raises the further question whether would violate 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 avoided 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, the court has found (perhaps mistakenly?) that 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. And, UMMS’s argument that it and St. Joseph are private, non-governmental actors, would make this a lawsuit between private parties with no government involvement. 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 1st Amendment from “practicing” a religion under the Establishment Clause, but this would be irrelevant if one accepts UMMS’s argument contention that it is not part of the public University whose name it shares.)
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 4th 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 unless it otherwise enjoys a religious exemption, which it was claiming as a defense.
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, assuming that Section 1557 applies to St. Joseph. (This is another point of significant contention, because Title IX is the source of the ACA non-discrimination requirement under Section 1557, and Title IX has a statutory exemption for religious educational institutions. Some have argued that this exemption should carry over to the ACA as well and cover religious health care institutions, a point of contention between the Trump Administration and the Biden Administration with dueling regulatory language.)
Senior Judge Chasanow was appointed by President Bill Clinton.
Tags: 4th Circuit Court of Appeals, ACLU, Affordable Care Act Section 1557, Catholic hospital, discrimination because of gender identity, Establishment Clause, Free Exercise Clause, gender identity, gender-affirming care, Hammons v. University of Maryland Medical System Corporation, hysterectomy for gender transition, Maryland, transgender discrimination, transgender men, transgender status, transgender women, transsexual, U.S. District Judge Deborah Chasanow, US District Court