U.S. Dept. of Health appeals ruling on LGBTQ bias policy

Secretary of Health and Human Services Xavier Becerra.

On January 20, Health and Human Services Secretary Xavier Becerra filed an appeal in the case of the “State of Texas and the State of Oklahoma v. U.S. Department of Health and Human Services, Xavier Becerra and Marvin Figueroa.” The case was decided last fall. In a suit brought by Texas’ Attorney General Ken Paxton, U.S. District Judge Matthew Kacsmaryk vacated guidance on gender-affirming care for children, and pronouns, dress, and bathroom protections for LGBTQ workers.

Kacsmaryk ruled that the landmark U.S. Supreme Court decision in Bostock v. Clayton County in 2020, holding that a law barring workplace discrimination protects gay and transgender employees did not apply to the healthcare law.

The rules were first issued after Bostock, in which the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, sex or religion, includes protection for LGBT people.

Then in 2021, the Biden administration released guidance around the ruling, noting that disallowing transgender employees to dress and use pronouns and bathrooms consistent with their gender identity constituted sex discrimination. 

But Texas and Oklahoma disagreed that Bostock could be applied to provisions in the Affordable Health Care Act, commonly referred to as Obamacare. Their case, brought before the U.S. District Court

Northern District of Texas, Fort Worth Division, states that the Biden administration had wrongly interpreted an Obamacare provision as barring health care providers from discriminating against gay and transgender people. 

The ruling by Kacsmaryk, who was appointed by former President Donald Trump, was the result of a class action lawsuit brought by two doctors represented by the America First Legal Foundation, led by former Trump White House adviser Stephen Miller.

The doctors sued after HHS said in May 2021 that it would interpret Section 1557 of the Affordable Care Act to protect LGBT people. Section 1557 makes it unlawful for any health care provider that receives funding from the federal government to refuse to treat an individual — or to otherwise discriminate against the individual — based on race, color, national origin, sex, age or disability. The Obama administration added protections for sexual orientation and gender identity. The Trump administration rescinded those protections and Biden reinstated them.

Kacsmaryk said in his ruling that Congress, when adopting the ACA in 2010 during the tenure of former President Barack Obama, could have included “sexual orientation” or “gender identity” in the text, but “chose not to do so.”

Instead, the law incorporated the bar against discrimination “on the basis of sex” in Title IX, a federal civil rights law that bars such discrimination in education programs. Kacsmaryk said in his ruling that “the logic of the Supreme Court’s 6-3 conclusion that Title VII’s bar against sex discrimination covered gay and transgender workers did not lead to the same result under Title IX’s text.”

Kacsmaryk wrote, “Title IX’s ordinary public meaning remains intact until changed by Congress, or perhaps the Supreme Court.”

The Obama administration introduced rules in 2016 clarifying that LGBT people would be protected under the healthcare discrimination provision. But Trump reversed that in 2020. In a 77-page statement, Trump’s HHS narrowed nondiscrimination protections for LGBTQ people seeking services of health and welfare programs that are funded by HHS. The new regulation stated that the Obama-era protection for sexual and gender identity violated the Religious Freedom Restoration Act. 

The HHS change affected LGBT people in all health, welfare and social service areas, including things as basic as meals for the elderly, transportation for chemotherapy and dialysis treatments, housing in homeless shelters, as well as all healthcare for queer, trans and non-binary people. The latter was the basis for the current lawsuit.

In March 2022, Beccera had added additional guidance on these issues, stating, “The Department of Health & Human Services (HHS) stands with transgender and gender nonconforming youth and their families — and the significant majority of expert medical associations — in unequivocally stating that gender affirming care for minors, when medically appropriate and necessary, improves their physical and mental health. Attempts to restrict, challenge, or falsely characterize this potentially lifesaving care as abuse is dangerous.” 

Now Beccera is appealing the Kacsmaryk ruling which vitiated his most recent stance. That appeal sends the case for review by the U.S. Court of Appeals for the Fifth Circuit. Becerra told the U.S. District Court for the Northern District of Texas on January 20 that he’s appealing the decision. On Nov. 11, Kacsmaryk granted relief to the two doctors who alleged that the Biden administration notice that it would begin enforcing protections for LGBTQ Americans in healthcare may cost them federal money.