Religious Freedom and LGBTQ Civil Rights Collide

February 11, 2021

By: Frank Harty

The divisions between religious freedom and civil rights have grown more distinct in recent days. Immediately following the inauguration, the Biden administration reversed course on a number of administrative matters.  


In addition to issuing an executive order concerning civil rights, the Biden administration immediately withdrew an administrative memorandum discussing the limited scope of the Bostock decision in the context of Title IX. At the same time, federal courts have already dealt the Biden administration setbacks. Just after the inauguration, a federal court in North Dakota entered an order permanently enjoining not just the Department of Health and Human Services, but also the Equal Employment Opportunity Commission from “interpreting or enforcing” Affordable Care Act section 1557 and Title VII in a manner that would require the members of a Catholic Benefit Association to “perform or provide insurance coverage for gender-transition procedures.”


The North Dakota order appears to be the only injunction issued against the EEOC. The scope and reasoning of the order can be interpreted to apply to any religious entity that objects to enabling or paying for gender-transition surgery based upon religious grounds. There are two other lawsuits pending attacking the Affordable Care Act’s transgender mandate: Franciscan Alliance, Inc. v. Azar, 414 F. Supp. 3d 928 (N.D. Tex. 2019) and Religious Sisters of Mercy v. Azar, No. 3:16-cv-00386, 2021 WL 191009 (D. N.D. Jan. 19, 2021). Plaintiffs prevailed in the Franciscan Alliance case where the court had enjoined the application of Affordable Care Act section 1557. The matter is presently on appeal to the 5th Circuit.


Clearly this question of religious freedom and civil rights will need to work its way through our court system. Nyemaster Goode’s Labor & Employment team will continue to monitor the issue