AUSTIN, Texas — A federal judge in Texas has ruled that the Biden administration cannot prohibit doctors from denying certain medical care based on a patient’s sexual orientation and gender identity.
U.S. District Court Judge Matthew Kacsmaryk on Friday sided with two Texas doctors who sued to block a federal rule that barred discrimination against LGBT patients. Susan Neese, an Amarillo doctor who refuses to prescribe hormone therapy to minors with gender dysphoria, argued that sex discrimination is defined as different treatment given to men and women — not different treatment given based on patient’s sexuality or gender identity.
Kacsmaryk went a step further, ruling that a recent U.S. Supreme Court decision protecting LGBT workers does not apply to decisions in the health care setting. The breadth of his decision sets up bigger arguments to come in the courts and legislatures over who is protected and what counts as discrimination in the doctor’s office.
“When adopting (the Affordable Care Act), Congress could have included ‘sexual orientation’ and ‘gender identity’ in the statutory text. Congress chose not to do so. Instead, Congress limited (the ACA’s) protections to those afforded by other federal statutes — including Title IX,” he wrote. “Because Title IX does not protect ‘sexual orientation’ or ‘gender identity’ status, neither does (the ACA).”
The U.S. Department of Justice will be able to ask the 5th Circuit Court of Appeals to revisit the decision. An agency lawyer assigned to the case did not immediately return request for comment.
Gender dysphoria is the feeling of discomfort or distress that can occur for those who identify as a gender different from the gender or sex assigned at birth. The subject of medical treatment for transgender people, especially minors, has come under increased scrutiny by conservative politicians and the courts in recent years, and will likely be a topic of debate during the 2023 Texas legislative session.
All of the major state and national health care groups, including the Texas and American Medical Association, support age-appropriate and individualized gender-affirming care for transgender youth, including puberty blockers and hormone therapy.
The plaintiffs are represented by former Texas Solicitor General Jonathan Mitchell, best known for authoring the state’s law allowing everyday citizens to sue those who assist others in accessing an abortion. Chad and Dusty Fillmore of Fort Worth and the Alliance Defending Freedom, a Christian legal advocacy group, also represent the plaintiffs.
Neese and Dr. James Hurly, also of Amarillo, sued the federal government in August 2021 after the Biden administration said that Obamacare barred doctors from discriminating against patients based on their gender identity and sexual orientation.
The administration fought back, citing the Supreme Court’s ruling in Bostock v. Clayton that said federal employment rules under Title VII that bar discrimination based on “sex” also extended to “sexual orientation” and “gender identity.”
The plaintiffs agreed that Bostock bars discrimination on the basis of sex, but defined this narrowly: A doctor would engage in sex discrimination only if he denies the same treatment to a man that he would give a woman. A doctor who denies all patients access to the same treatment — hormone therapy, for example — are not engaging in sex discrimination because they are treating men and women the same, they argue. The argument is similar to one Mitchell employs in a case about federal employment protections regarding bisexual workers.
Last month, Kacsmaryk granted the doctors class certification that would extend his decisions beyond these plaintiffs.
Kacsmaryk recently handed Mitchell a win in a similar case when he ruled that employment protections for gay and transgender workers do not extend to policies regarding dress codes, preferred pronouns or bathroom usage.
A Donald Trump appointee, Kacsmaryk openly opposed the expansion of LGBT rights before his time on the bench. As the former head of the Plano-based Christian legal organization First Liberty Institute, he was critical of same-sex marriage and opposed transgender-inclusive policies in Texas schools as an erosion of parental rights and religious liberties.
In the Obamacare suit, Kacsmaryk ruled that Bostock applies only to the workplace, not the doctor’s office. He was critical of what he described as an overinterpretation of that ruling, and said only Congress or the high court can address the issue.
“In his Bostock dissent, Justice (Samuel) Alito foresaw how litigants would stretch the majority opinion like an elastic blanket to cover categories, cases, and controversies expressly not decided,” Kacsmaryk wrote. “And here we are.”
The judge is expected to finalize his ruling no earlier than next week.
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