The Religious Liberty Argument the Catholic Church Won't Make

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If you’re reading this blog, it’s probably unsurprising to you that transgender rights remain a hot topic in the media, legislatures, and the courts, especially heading into the 2026 midterm election. For those of us on the side of trans rights, it’s often felt like we are on the defensive at all times, trying to stop the bleeding from bathroom and sports bans, from identity document reversals, and from bans on best practice medical care. Rarely anymore, does it seem, that we get to be on the offensive. Yet here in Wisconsin, for once, we are getting to do just that.

At the end of July, the ALCU of Wisconsin filed suit against the state over WI Stat. 69.15(b), which mandates that all transgender and intersex people who wish to modify the sex marker on their birth certificate must first undergo a “surgical sex change procedure” – though that term is not defined. The ALCU-WI’s complaint notes that, unlike cisgender people seeking to update their birth certificates, trans and intersex individuals must provide the state with private medical documentation showing that they have undergone some unknown benchmark of expensive and invasive surgical procedures.

“Surgical sex change procedures” – or “gender affirming surgeries” as they’re more commonly known in 2026 – are not a singular surgery. There is no one-size fits all procedure that all trans people undergo. Instead, those who pursue surgical transition choose from a variety of procedures based on their specific transition goals and medical needs. Gender affirming care is a highly individualized, and deeply private process, and requiring any one type of procedure in order to update identity documents causes at least some trans people to take on not only physical and financial risks that they may not have otherwise chosen, but in some cases, forces some trans people to make decisions contrary to their moral, ethical, and even religious commitments.

You may not realize this if you do not regularly interact with a variety of trans people, not all trans people desire surgical transition. For decades now, there has been significant debate amongst trans people over whether surgical transition is desirable, raising questions about assimilation to both cis and heteronormative bodily standards, eugenics, class, race, and beyond. Our notions of what is a “correctly sexed” body in relation to gender identity and expression is often based on the most typical configuring of sex and gender characteristics found in white European bodies. The medical standards of care for both intersex conditions and gender dysphoria – and their interactions with both law and culture – have evolved to reflect that white European ideal. Many trans theorists have fairly pointed out that this has, even when unintentional, served to further the white supremacist colonial project by entirely erasing other cultures’ approaches to how sex, gender, identity, and bodies interrelate. To be clear, this is not to say that medical transition is a bad thing in and of itself. I personally think that it is a deeply personal decision that should not be dictated by anyone except the patient, their medical professionals, and their support system of choice. I say all of this only to say that the idea that all transgender people desire surgical transition – or that surgical transition is necessary for someone to be “really” trans is a patent and historically complicated falsehood.

Questions of transgender existence and medical transition are also often primarily focused on a purely secular point of view, another aspect of the approach that often erases the impact of spiritual understandings of gender and sex. I myself have been guilty of this in my own work, as so much of my legal career has been centered, up until now, on trying to reach primarily atheist and agnostic audiences on weaponization of transphobia by the Christian nationalist movement. And there certainly is a time and place for that necessary work. But to view these questions through an entirely secular lens – or to approach these topics as a nothing more than a question of the secular science vs. conservative political theology – does a disservice to us all, and robs us of important nuance. Particularly when considering how to better develop a legal framework that best serves all people, this approach can cause us to lose out on important arguments and aspects of life that need to be accounted for.

For transgender people of faith, the question of surgical transition necessarily takes on a spiritual component, and unsurprisingly, no one agrees on an outcome. Many view medical transition as a sacred and holy process – a form of becoming and participation in the creation of oneself. Others view maintaining their body as it is a spiritual priority, following commitments presented by religious traditions that view maintaining “bodily integrity” as an important aspect of respecting the plan for divinely ordered creation. Faith traditions – in whatever way one wants to define the term – spend significant time grappling with concepts of the self, identity, and our place in the world, and come to an endless variety of “proper” outcomes. But even within individual faith traditions, questions surrounding transgender identity and medical treatments are frequently still unresolved and contested, including among transgender Catholics.

Transgender Catholic life and spiritually is complex.

Setting aside the fact that transgender Catholics are a small minority of a minority, the mainstream and authoritative elements of the Roman Catholic Church has only recently begun to contend with the possibility of transgender existence as anything other than a freely chosen sinful aberration. Pope Leo has begun to meet with trans people to actually understand our lives and struggles, and some mainstream Catholic figures have begun to present a possible approach to trans lives that goes beyond the “hate the sin love the sinner” tactics we have previously been able to only hope for in best case scenarios. That, of course, does not even begin to touch the damage that the Church has inflicted. I’ve written at length on the hostility the Catholic hierarchy has shown to transgender people. Pope Francis, popularly lauded for his “who am I to judge” approach to Catholics in same-sex relationships, famously stated in 2015 that “gender theory” posed a threat on par with nuclear weapons. In recent years, following the current political trend the United States Conference of Catholic Bishops has jumped on the anti-trans bandwagon, placing gender affirming surgeries and hormone replacement therapy on the list of treatments and procedures that cannot be provided in Catholic healthcare systems in the United States.

As a transgender Catholic myself, I fully understand the shock and confusion that trans people would consider being a part of the Catholic Church.

That shock and confusion, however, does not change the fact that transgender Catholics absolutely do exist, and have existed for a very, very long time. Social, medical, and surgical transition all present unique spiritual challenges, and the doctrinal and theological questions surrounding them are, at least in my opinion, not yet truly answered. Many of the assumptions that underpin what most people understand to be Catholic teaching on transgender individuals are, at best, outdated inaccuracies based on fear and a refusal to actually interact with and understand us. Transgender Catholics have been very much left in the theological lurch between what our actual lives and experiences are like, and what the Church has often incorrectly assumed them to be.

The Ethical and Religious Directives For Catholic Health Care Services, which govern what services can and cannot be provided in Catholic health systems, are not infallible doctrine. Instead, they are a set of guidelines voted on by the US Bishops to address where medical care and Catholic theology graze against each other. They can, and have, changed rather rapidly. It is, however, a tool that can tell us a lot about the current state of Catholic teaching, at least in the United States. While there are plenty of arguments to be made that medical transition treatments and procedures could possibly fall under the same doctrinal framework that allows Catholics to take birth control so long as the primary purpose is a medical condition and not to prevent conception (a topic I will likely elaborate on in another blog), there is, at least for now, an equally strong argument that surgical transition is entirely impermissible for transgender Catholics. This, however, says nothing about the permissibility of social/legal transition.

That critical distinction, then, presents an interesting religious liberty argument in the Wisconsin birth certificate lawsuit. Having identity documents that adequately reflect a person’s lived gender identity is a matter of both safety and simple function. When a person’s identity documents do not match their outward gender expression, they are placed at a higher risk for discrimination in employment, housing, voting, and public businesses – not to mention the increased risk of violence from police and other bad actors. For transgender Catholics in Wisconsin who may be seeking to follow the guidance on surgical transition offered by our Bishops while otherwise living within their gender identity, the State of Wisconsin has created an impossible choice: maintain adherence to our sincerely held religious beliefs, or have access to the identity documents that allow us to live fully and safely in society.

If this type of choice were being forced by the government on nearly any other topic, Catholic non-profits, well funded religious liberty outfits, and other groups would be chomping at the bit to take on this case. It would be the next Masterpiece Cakeshop or Chiles. You could buy stock in cookware companies for all the pots and pans that would be banged in making noise on this issue. But, of course, the Church won’t acknowledge this argument, because it would require the public recognition of the reality that transgender Catholics, who are committed both to living our faith and living as our authentic selves, exist, despite all of the complications that presents, and that Church teaching on the topic is incomplete, especially when it comes to social and legal transition. The religious liberty outfits and Catholic non-profit organizations won’t take on this argument because the massive donations from those who wish to see transgender people eliminated from society entirely would dry up instantaneously. Many of the separation of church and state groups are also deeply unlikely to spend time and resources on this argument, because it complicates the narrative that religion and transgender rights are completely and totally antithetical.

There is, I fear, a lack of political will and courage to present this argument in any square more public than the speculation of this blog.

This will continue to be an issue that we will all be forced to continue to reckon with in the coming years. Trans issues are not going away after the midterm elections, nor are they going away after the next presidential election. We are going to have to learn together how to approach these questions with all of their complexities and nuance, even when they make our old standby arguments more difficult, or when they present us with intersections of identity we struggle to understand and contend with. Otherwise we will only continue to recreate the problematic systems that have led to such strife and difficulty to begin with.

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Kat (they/them) is a Wisconsin based lawyer, activist, and theorist whose writing focuses on the intersections of law, queerness, religion, and politics, with the occasional bit of theology, political theory, and legal theory thrown in for good measure. Outside of work you can find them at a ballet or modern dance class, sipping on dirty shirleys at their local gay bar, or playing video games with their cat, Merlin.