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INTRODUCTION
Because humans are embodied beings, all religions feature teachings, doctrines, or dogmas relevant to the human body and its manifestation in the male or female form.1 For example, John Paul II's Theology of the Body lectures explain in exhaustive detail the catholic view that humans are created male or female and are therefore ordered to the "one flesh" conjugal union signified in the sacrament of marriage.2 In a similar vein, Orthodox Jewish scholars read Levitical and Talmudic texts to proscribe non-marital male-female touching (negiah), prescribe separate male and female seating sections in the synagogue (mechitza), or prohibit male-female seclusion prior to marriage (yichud).3 Sunni and Shia Muslims famously disagree on eschatology but basically agree on the sex-specific, full-body washing rituals for the living (ghusl), the dead (ghusl mayyit), and those who touch the dead (ghusl mase mayyit).4 Because these beliefs are integral to millennia-old religions and closely correlate to First Amendment rights enshrined in the Constitution, American policy makers have a long track record of accommodating idiosyncratic "theologies of the body"-especially in military and medical cases where religious persons sincerely disagree about what may be done with or to the human body.5
By expressly denying any religious exemption, the Department of Health and Human Services (HHS) Transgender Mandate6 represents an unprincipled and unnecessary departure from the venerable American tradition of accommodating religious adherents. The HHS Transgender Mandate was promulgated pursuant to Section 1557 of the Affordable Care Act (ACA) and administratively redefines the longstanding protected class "sex" to include three new categories not listed in the original federal nondiscrimination statutes: (1) "gender identity," (2) "sex stereotyping," and (3) "termination of pregnancy. "7 These three categories are broadly defined, thereby maximizing the potential for liability or litigation:
* "Gender identity" includes "an individual's internal sense of gender, which may be male, female, neither, or a combination of male and female."8
* "Sex stereotyping" includes the "belief that gender can only be binary" or "the expectation that individuals will consistently identify with only one gender. "9
* "Termination of pregnancy" is not defined, and the relevant clause omits the abortion exception appearing in the Pregnancy Discrimination Act.10
Consequently, medical providers and practitioners may be required to cover, perform, or facilitate sex-reassignment procedures11 and whatever abortion services...