U.S. District Judge Matthew J. Kacsmaryk, a staunch foe of LGBTQ rights before being appointed to the U.S. District Court for the Northern District of Texas by President Donald Trump, ruled Nov. 11 that the Biden administration violated the Administrative Procedure Act (APA) and misinterpreted the Affordable Care Act (ACA) in 2021 when Health and Human Services Secretary Xavier Becerra sent a “notification” to health care providers that his department “would interpret and apply” the ACA’s prohibition against discrimination “on the basis of sex” to include “on the basis of sexual orientation” and “on the basis of gender identity”.
The notification cited the Supreme Court’s 2020 decision in Bostock v. Clayton County as its authority. In that case, the court ruled that firing someone because of their sexual orientation or gender identity violated Title VII of the Employment Act’s prohibition on discrimination in employment “because of sex.” Civil Rights Act of 1974. Judge Neil Gorsuch wrote for the court that it was impossible to fire someone on these grounds regardless of their sex, and the law prohibited taking action against staff because of sex of an individual. He also wrote that the court was only ruling on the issue presented in the three cases grouped together for review, in which the plaintiffs claimed that employers fired them because they were gay or transgender. He wrote that the court was not considering the interpretation or application of any other law.
The ACA’s Anti-Discrimination Provision, Section 1557, states that health care providers who receive federal money (which includes anyone who receives Medicare or Medicaid payments) cannot discriminate on grounds prohibited by a list of federal statutes, which includes Title IX of the Education Amendment Act. Title IX specifically prohibits “sex-based” discrimination by educational institutions that receive federal money. The Biden administration has taken the position that Title IX protects LGBTQ students from discrimination and has focused on the federal courts’ general approach to interpreting Title IX as consistent with how the courts interpret the title. VII on the issue of sex discrimination. Since June 2020, when the Bostock decision was issued, many federal courts have followed its reasoning to find that Title IX and, by extension, Section 1557 of the ACA prohibits such discrimination.
The plaintiffs in the case before Judge Kacsmaryk, Drs. Susan Neese and Dr. James Hurly, challenged the Biden administration’s “notification.” They claim that this was a change in the law that could not be accomplished by mere notification without going through the APA’s requirements to post a proposed rulebook, seek public comment, and publishing a final rule in the Federal Register, a process that can take many months. Specifically, they argue that the wording differences between Title VII and Title IX undermine the Biden administration’s assertion that the Bostock decision can be directly applied to Title IX.
Judge Kacsmaryk said he likely agreed with their argument earlier in rejecting the government’s motion to dismiss the case. Recently, he granted a motion by the plaintiffs to certify the case as a “class action”, designating them as representing all healthcare workers subject to the non-discrimination obligations of Section 1557 of the ACA. And, on November 11, he granted their motion for summary judgment, issuing a decision on the merits of their claim in which he agrees with their arguments.
In addition to noting Judge Gorsuch’s statement circumscribing what the court was deciding in the Bostock case, he focused heavily on the difference in wording between Title VII (“by reason of sex”) and Title IX (” on the basis of sex”), even though Judge Gorsuch used the two phrases interchangeably in his opinion for the court, and Judge Sam Alito, dissenting, complained that the decision would affect hundreds of laws and federal regulations by his reasoning. Kacsmaryk pointed to Supreme Court cases indicating that when Congress changes the language it uses, it must be found that it intended different meanings, otherwise it would have used identical language. He also observes in a footnote that when Title IX was enacted in the 1970s, the concept of gender identity as such was virtually unheard of.
The judge also went to great lengths to show that the various provisions of Title IX would, according to his argument, have no meaning if this law, as applied to educational institutions, were interpreted in such a way as to prohibit the discrimination based on gender identity. (Sexual orientation is not the primary focus of this opinion, and the complainants’ issues with “notification” are all stated in terms of treating transgender patients.)
“The overriding purpose of Title IX”, which is “evident in the text” itself, is to prohibit the discriminatory practice of treating women less favorably than men and denying opportunities to women because they are women (and vice versa),” he wrote, citing a 2011 Supreme Court decision, AT&T Mobility LLC v. Concepcion. jeopardize the very opportunities for women. Title IX was designed to promote and protect – categorically forcing biological women to compete with biological men.” He seized on previous rulings referring to “immutable differences” between men and women, and Title IX regulations allowing separate dormitories for men and women and separate toilets and changing rooms by gender.
“Ironically,” he wrote, regarding the issue of transgender participation in competitive athletics, “Defendants’ interpretation invites SOGI discrimination by excluding student-athletes from competing on women’s or men-only teams. based on gender identity. Presumably, this would force biological females who identify as male to compete with biological males, even though biological females have the same physiological characteristics as a typical biological female. Such an interpretation makes little sense, given the text, structure, history and purpose of Title IX. What this has to do with discrimination in health care is unclear, but then it was Congress that decided to write the anti-discrimination section of the ACA in a particular way, incorporating by reference to other laws instead of setting out the prohibited grounds of discrimination. under the ACA directly, making Title IX the go-to source for the ACA’s non-discrimination requirement “on the basis of sex”.
Thus, Kacsmaryk concludes, and will embody in a formal order after receiving proposed wording from the parties, to declare that Section 1557 does not prohibit discrimination in health care “on the basis of sexual orientation or gender.” ‘gender identity’. If not, then the notice is not a valid interpretation of Section 1557 and, as Kacsmaryk will state, the notice that was sent to healthcare workers is void. However, curiously, and without any explanation in this opinion, he denied Plaintiff’s motion to the extent that he sought an injunction, and specifically granted Defendants’ motion for summary judgment in part by denying Plaintiff’s motion for an injunction. .
The Biden administration can appeal that decision, but the appeal would first go to the Fifth Circuit Court of Appeals, a very conservative bench dominated by Republican appointees (12 of 16 active justices, including six appointed by Trump ). Since other federal courts have accepted arguments that Bostock’s reasoning can be applied to Title IX and by reference to the ACA, a decision affirming Kacsmaryk’s decision would create a split in circuit authority that could lead to review by the Supreme Court, so this case, Neese v. Becerra, could result in a major repudiation of the Biden administration’s policy to prevent discrimination against LGBTQ Americans under numerous federal laws other than Title VII.
The plaintiffs are represented by America First Legal Foundation, a litigation group formed by Trump administration ‘alumni’, one of whose goals is to get the courts to strike down contrary Biden administration policies. the policies of the Trump administration.
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