Obamacare’s anti-discrimination protections don’t apply to LGBT patients, Texas judges rules

AUSTIN — A federal judge in Texas has ruled that the Biden administration cannot prohibit physicians from refusing certain medical care based on a patient’s sexual orientation and gender identity.

US District Court Judge Matthew Kacsmaryk on Friday sided with two Texas doctors suing against a federal rule prohibiting discrimination against LGBT patients. Susan Neese, an Amarillo doctor who refuses to prescribe hormone therapy to minors with gender dysphoria, argued that gender discrimination is defined as treating men and women differently – not treating them differently because of the patient’s sexuality or gender identity.

Kacsmaryk went a step further, ruling that a recent US Supreme Court ruling protecting LGBT workers does not apply to healthcare decisions. The breadth of his decision leads to major controversy in court and lawmakers over who is protected in the doctor’s office and what constitutes discrimination.

“At the adoption [the Affordable Care Act]Congress could have included “sexual orientation” and “gender identity” in the text of the law. Congress decided against it. Instead, Congress restricted it [the ACA’s] Safeguards over those afforded by other federal statutes — including Title IX,” he wrote. “Because Title IX protects neither ‘sexual orientation’ nor ‘gender identity’ status [the ACA].”

The US Department of Justice may ask the Fifth Circuit Court of Appeals to reconsider the decision. An agency attorney assigned to the case did not immediately respond to a request for comment.

Gender dysphoria is the feeling of uneasiness or distress that can occur in people who identify as a gender different from the sex or gender assigned at birth. The issue of medical treatment for transgender people, particularly minors, has come under increased scrutiny from conservative politicians and the courts in recent years and is likely to be debated during the 2023 Texas legislature.

All 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 Attorney General Jonathan Mitchell, who is best known for writing the state’s law allowing ordinary citizens to sue those who help others access an abortion. Chad and Dusty Fillmore of Fort Worth and the Alliance Defending Freedom, a Christian legal organization, are also representing the plaintiffs.

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Neese and Dr. James Hurly, also of Amarillo, sued the federal government in August 2021 after the Biden administration said Obamacare prohibited doctors from discriminating against patients based on their gender identity and sexual orientation.

The government resisted, citing the Supreme Court ruling in Bostock v. Clayton that the federal employment rules under Title VII, which prohibit discrimination on the basis of “sex”, also extended to “sexual orientation” and “gender identity”.

Plaintiffs agreed that Bostock prohibits sex discrimination, but defined it narrowly: a doctor would only engage in sex discrimination if he refused to give a man the same treatment that he would give to a woman. A doctor who denies all patients access to the same treatment — hormone therapy, for example — is not committing sex discrimination because he treats men and women equally, they argue. The argument is similar to one used by Mitchell in a case on federal employment protections for bisexual workers.

Last month, Kacsmaryk granted physician class certification that would expand his decisions beyond these plaintiffs.

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Kacsmaryk recently gave Mitchell a victory in a similar case when he ruled that employment protections for gay and transgender workers do not extend to policies related to dress codes, preferred pronouns or bathroom use.

Kacsmaryk, who was appointed by Donald Trump, openly opposed expanding LGBT rights before sitting on the bench. A former director of the Plano-based Christian rights organization First Liberty Institute, he was critical of same-sex marriage and opposed the policies of transgender integration in Texas schools as eroding parental rights and religious freedoms.

In the Obamacare lawsuit, Kacsmaryk ruled that Bostock applied only to the workplace, not the doctor’s office. He criticized what he called an overinterpretation of that ruling, saying only Congress or the Supreme Court could deal with the issue.

“In his Bostock dissent, Justice [Samuel] Alito foresaw how litigants would stretch majority opinion like an elastic blanket to cover categories, cases, and controversies that were explicitly undecided,” Kacsmaryk wrote. “And here we are.”

The judge is expected to finalize his verdict next week at the earliest.