Biden Administration Rule Barring Doctors From Discriminating on Basis of Gender Identity Illegal: Judge

Health Secretary Xavier Becerra speaks at the HHS headquarters in Washington on June 28, 2022. Nicholas Kamm/AFP via Getty Images

A federal judge has ruled that an attempt by President Joe Biden administration’s to force health care providers to not discriminate on the basis of gender identity and sexual orientation is illegal.

Section 1557 of the Affordable Care Act prohibits discrimination “on the basis of sex.”

The Supreme Court in 2020 ruled in Bostock v. Clayton County that “sex” in the Civil Rights Act of 1964 includes sexual orientation and gender identity, which means that firing employees for being gay or transgender is against the law.

Health Secretary Xavier Becerra, a Biden appointee, announced in 2021 that the administration was including on the basis of “sexual orientation” and “gender identity” under “on the basis of sex” from the Affordable Care Act, also known as Obamacare.

A group of doctors sued over the edict, arguing that the Biden administration was misusing the Bostock decision and that health care providers should be able to make medical decisions on the basis of gender identity as long as the providers don’t engage in sex discrimination. The doctors say they have treated transgender patients in the past.

The new decision comes as a result of the doctors asking for summary judgment, or a decision without a trial, on their claims that the Biden administration is violating the law with its new rules.

U.S. District Judge Matthew Kacsmaryk, a Trump appointee, said in the new ruling that Bostock does not apply to Obamacare.

The Supreme Court’s majority opinion expressly said that its decision was not a ruling on other laws, he noted.

Further, the government primarily cited pre-Bostock cases in applying Bostock to the Affordable Care Act.

“In essence, Defendants seek to retroactively apply Bostock’s interpretation of Title VII to judicial opinions predating Bostock by two decades and related to Title IX by incidental wordplay,” Kacsmaryk said in a 26-page ruling.

The only cases since Bostock do not support exporting the reasoning in Bostock to Section 1557, the judge said.

Title IX’s main purpose was to bar treating women worse than men and thus denying opportunities to women because they are women, Kacsmaryk said, referring to a ruling in a separate case.

Extending the law to gender identity “imperils the very opportunities for women Title IX was designed to promote and protect—categorically forcing biological women to compete against biological men,” he added. The attempted extension could lead to certain people, such as a biological woman who identifies as a man, to compete against biological men, even if the woman has “the same physiological characteristics as a typical biological woman.”

America First Legal, a group founded by former Trump administration officials, is representing plaintiffs in the case.

“This is a historic victory against both the imperial presidency and extremist gender ideology. Forcing doctors to treat boys as girls and women as men is sheer anti-science lunacy,“ Stephen Miller, president of the group, said in a statement. ”This decision affirms that Biden broke the law by ordering doctors to substitute superstition for biology and to conduct barbaric experiments on children including chemical castration and permanent sterilization.”

The judge previously certified a class for all health care providers who are subject to Section 1557, or providers who receive funding from the federal government.

Kacsmaryk did deny plaintiffs’ request for injunctive relief. He asked plaintiffs and defendants to submit proposed judgments within 10 days.