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A federal judge in Texas ruled against the Biden administration’s extension of the Affordable Care Act’s discrimination provisions to include gay and trans-identified people.
U.S. District Judge Matthew Kacsmaryk filed a 26-page decision on Friday, finding that the Supreme Court’s 2020 decision in Bostock v. Clayton County, which bars workplace discrimination on the basis of sexual orientation and “gender identity,” does not apply to the 2010 health care law.
“Title IX’s ordinary public meaning remains intact until changed by Congress, or perhaps the Supreme Court,” said Kacsmaryk.
The ruling by Kacsmaryk came in a class action lawsuit by two doctors represented by the America First Legal Foundation, alleging HHS misinterpreted Bostock. They sued after the U.S. Department of Health and Human Services said in May 2021 it would interpret Section 1557 of the Affordable Care Act, which prohibits healthcare providers from discriminating on the basis of sex, as extending to sexual orientation and gender identity.
Kacsmaryk said the Supreme Court’s 6-3 finding that Title VII’s prohibition against sex discrimination included gay and trans-identified workers did not warrant the same conclusion under Title IX’s text.
When Congress adopted the Affordable Care Act in 2010 during former President Barack Obama’s tenure, they could have included “sexual orientation” or “gender identity” in the text, but “chose not to do so,” said Kacsmaryk.
”Congress limited Section 1557’s protections to those afforded by other federal statutes – including Title IX. Because Title IX does not protect ‘sexual orientation’ or ‘gender identity’ status, neither does Section 1557,” Kacsmaryk wrote.
Kacsmaryk has ordered both parties to submit “proposed judgments” within 10 days of his order.
Upon entering office, President Joe Biden signed a sweeping executive order, “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” which attempted to reinterpret the prohibition on discrimination based on sex — which is found in Title IX of the Education Amendments of 1972 — to include discrimination based on sexual orientation and one’s “gender identity.”
“The problems with this [Executive Order] arise with its misinterpretation of Bostock and the disregard of biological sex and the sex-based rights of women and girls.” said Dr. Callie Burt, an Associate Professor at Georgia State University in the Department of CJ and Criminology and Center for Research on Interpersonal Violence (CRIV). “The Biden administration appears to subscribe to a worldview where gender identity should take precedence over sex.”
“This interpretation would have significant ramifications for women and girls in education, females incarcerated in federal prisons and detention centres, and the like,” said Burt. “This would represent the ‘undoing’ of women’s sex-based rights in favour of gender self-ID.”