Transgender Care Decision Undermines LGBTQ Rights, Advocates Say

A Texas federal judge’s decision striking down an LGBTQ anti-bias policy wrongly applied US Supreme Court precedent and will endanger people’s health, advocacy groups told the Fifth Circuit.

The groups, led by organizations like Public Justice and the American Cancer Society, joined the federal government in asking the US Court of Appeals for the Fifth Circuit to reverse District Judge Matthew Kacsmaryk’s ruling that the Affordable Care Act doesn’t prohibit discrimination in health care on the basis of gender identity or sexual orientation.

Kacsmaryk, of the US District Court for the Northern District of Texas, held in November 2022 that the US Health and Humans Services Department can’t enforce a policy that would require health-care professionals to provide gender-affirming care to transgender people.

HHS hasn’t enforced the policy to date, but Kacsmaryk said the doctor-plaintiffs had standing to challenge it based on the threat that it would be enforced against them and lead to their loss of federal money.

There are several cases throughout the country that have challenged various iterations of HHS rules and policies that clarify the agency’s stance that bias against LGBTQ people is unlawful under ACA Section 1557. This case differs from some of the others in that there’s no religious freedom argument, as there was in a recent decision from the US Court of Appeals for the Eighth Circuit.

Bostock’s Application

The district court incorrectly held that the Supreme Court’s decision in Bostock v. Clayton County, Ga. doesn’t apply to Section 1557 cases, Public Justice and seven other groups that advocate for equality in education said in a friend of the court brief Monday.

In Bostock, the top court held that Title VII’s protections against sex discrimination in the workplace prohibit bias based on sexual orientation or gender identity.

Courts often look to Title VII when interpreting Title IX, which prohibits sex discrimination in educational programs, the groups said. Title IX, in turn, is one of the federal laws whose protections are expressly incorporated in Section 1557.

The district court’s reasoning conflicts with decisions from the Fourth and Ninth circuits, which have said that Bostock applies in Title IX cases, the groups said. Kacsmaryk also introduced a “novel theory of discrimination” that would require plaintiffs to prove that a law discriminates against their entire sex, rather than them individually, they said.

The decision, if left unchecked, threatens students’ rights and, in particular, puts LGBTQ students at risk for discrimination and harassment, the groups said.

Threatens Access to Care

The American Cancer Society, the Judge David L. Bazelon Center for Mental Health Law, and the AIDS Institute were among several medical groups also advocating for reversal Monday. “Discrimination on the basis of sex, gender identity, transgender status, sexual orientation, and similar characteristics has no place in our health-care system,” they said.

The district court’s decision could lead to discrimination in all care for LGBTQ people, including treatment for chronic diseases like cancer, multiple sclerosis, and heart disease, the groups said. Access to such care could be delayed or denied, leading to a lowered quality of care and more adverse outcomes, they said.

Congress adopted Section 1557 expressly to avoid this scenario, the groups said. And, as Bostock made clear, protections against discrimination extend to LGBTQ people because it’s “impossible to discrimination against a person for being homosexual or transgender without discriminating against that person on the basis of sex,” they said.

Public Justice represents the education groups. Morrison & Foerster LLP represents the medical groups.

The case is Neese v. Becerra, 5th Cir., No. 23-10078, briefs filed 4/3/23.