So held Judge Matthew Kacsmaryk (N.D. Tex.) Friday in Neese v. Becerra; the opinion is long, but here's an excerpt:
Section 1557 of the Affordable Care Act prohibits discrimination "on the basis of sex." See 42 U.S.C. § 18116(a) (incorporating, among other things, Title IX's prohibition of discrimination "on the basis of sex," 20 U.S.C. § 1681(a), into Section 1557). In Bostock, the Supreme Court held Title VII's "because of … sex" terminology prohibits "sexual orientation" and "gender identity" discrimination in employment. Citing Bostock, the United States Department of Health and Human Services ("HHS") announced it would "interpret and enforce" Section 1557's prohibition on discrimination "on the basis of sex" to include "on the basis of sexual orientation" and "on the basis of gender identity."
Plaintiffs—two Texas-based physicians—allege Defendants misread Bostock and argue that healthcare providers may continue sex-specific medical decisions relevant to "gender identity" "so long as one does not engage in 'sex' discrimination when doing so." Specifically, Plaintiffs allege neither Section 1557 nor Bostock prohibits such discrimination, "as long as they would have acted in the exact same manner if the patient had been a member of the opposite biological sex." Plaintiffs "object only to the Secretary's claim that Bostock defined 'sex' discrimination to encompass all forms of discrimination on the basis of sexual orientation or gender identity." Plaintiffs state they "fully intend to comply with Bostock and its interpretation of 'sex.'"
Plaintiffs make sex-specific decisions relevant to "gender identity" in their medical practices—and both receive federal money subject to Section 1557. Dr. Neese "has treated patients suffering from gender dysphoria in the past and has on occasion prescribed hormone therapy for them." But Dr. Neese "does not believe that hormone therapy or sex-change operations are medically appropriate for everyone who asks for them, even if those individuals are suffering from gender dysphoria, and she will on occasion decline to prescribe hormone therapy or provide referrals for sex-change operations." "Dr. Neese is categorically unwilling to prescribe hormone therapy to minors who are seeking to transition, and she is equally unwilling to provide referrals to minors seeking a sex-change operation." She "believes that it is unethical to provide 'gender affirming' care to transgender patients in situations where a patient's denial of biological realities will endanger their life or safety."
