LGBTQ+ protections

A Trump-appointed judge ruled last week that healthcare providers are allowed to deny care to LGBTQ+ individuals, throwing out the Biden administration’s interpretation of a key section of the Affordable Care Act (ACA).

Background

The Supreme Court decided in Bostock v. Clayton County (2020) that Title VII of the Civil Rights Act, a federal law that bans discrimination “because of…sex,” prohibits discrimination based on gender identity and sexual orientation, too.

• Chief Justice John Roberts and Justice Neil Gorsuch joined liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonya Sotomayor, and Elena Kagan in the majority, angering some conservatives. Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh dissented.

The majority found that “sex” is not limited to a male-female binary in the Civil Rights Act and is broad enough to forbid discrimination against LGBTQ+ individuals:

A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decision-making.

In sum, the majority determined that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Lawsuit

Two Texas doctors, Susan Neese and James Hurly, sued the Department of Health and Human Services (HHS) over its 2021 guidance that said, similar to Bostock, the ACA’s prohibition on discrimination on the basis of sex includes gender identity and sexual orientation.

“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That’s why today HHS announced it will act on related reports of discrimination,” said HHS Secretary Xavier Becerra. “Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone – including LGBTQ people – should be able to access health care, free from discrimination or interference, period.”

Neese and Hurly were represented by America First Legal Foundation, formed by former senior Trump White House advisor Stephen Miller. They argued that HHS misinterpreted the Bostock ruling and that “healthcare providers may continue sex-speciifc medical decisions relevant to ‘gender identity’ ‘so long as one does not engage in sex discrimination when doing so.’”

Dr. Neese claims she “is likely to encounter minor transgender patients who will request hormone therapy and referrals for sex-change operations that she is unwilling to provide, as well as adult transgender patients who will deny or dispute their need for preventative care that corresponds to their biological sex, and she intends to provide care to these individuals in a manner consistent with her ethical beliefs.”

The two doctors brought their case in the Northern District of Texas division with a 95% chance of being assigned to Judge Matthew Kacsmaryk, a Trump appointee with a known opposition to LGBTQ+ rights and marriage equality.

Judge Kacsmaryk ruled against the Biden administration, declaring that Bostock does not apply to healthcare law. In doing so, Kacsmaryk relied heavily on the difference in wording between Title VII (“because of sex”) and Title IX (“on the basis of sex”), even though Justice Gorsuch used both phrases interchangeably in his opinion for the court (in Bostock).

…Bostock does not apply to Section 157 [of the ACA] or Title IX. And the Court will not export Bostock’s reasoning to Section 1557 or Title XI. Instead, the Court analyzes “on the basis of sex,” as used in Title IX (and incorporated into Section 1557), by giving the term its ordinary public meaning at the time of enactment and in the context of Title IX…

As written and commonly construed, Title IX operates in binary terms — male and female — when it references “on the basis of sex.”

Kacsmaryk determined that Congress could have expressly forbid discrimination because of sexual orientation and gender identity when writing the ACA and Title IX, but since it did not, these types of discrimination are both permitted. “Courts may ‘insist that Congress speak with a clear voice’ when it imposes conditions on the receipt of federal funds,” Kacsmaryk writes.

To support his conclusion, Kacsmaryk relies not on Bostock’s majority opinion, but on Justice Samuel Alito’s dissent:

Defendants’ theory actively “undermine[s] one of [Title IX’s] major achievement, giving young women an equal opportunity to participate in sports,” Bostock, 140 S. Ct. at 1779 (Alito, J., dissenting). The effect of the [guidance by HHS] “may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male.” Id. at 1779-80 (Alito, J., dissenting).

As a result, doctors will be allowed to discriminate against LGBTQ+ patients, at least until or unless a higher court intervenes.

• Reminder: Judge Kacsmaryk ruled last month that employment protections for gay and transgender workers do not extend to policies regarding dress codes, preferred pronouns or bathroom usage. He also forced the Biden administration to keep Trump’s “Remain in Mexico” policy for nearly a year.

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Student loan forgiveness

Another Trump judge on the Northern District of Texas bench blocked President Biden’s student loan forgiveness plan last week, ruling that plaintiffs have standing when even the Supreme Court turned similar cases away.

Under the administration’s plan, federal student loan borrowers with loans held by the Department of Education who have an individual income of $125,000 or a joint income of $250,000 are eligible for up to $10,000 in debt cancellation. Pell Grant recipients are eligible for up to $20,000 in debt cancellation. Private student loans are not eligible for debt relief.

The program finds its authority in a provision of the 2003 HEROES Act, which gives the Secretary of Education the ability to “waive or modify” many student loan obligations “as the Secretary deems necessary in connection with a war or other military operation or national emergency.” In other words, Congress authorized the president alone to determine if a national emergency exists that is grave enough to allow the Secretary of Education to waive or modify loans as he or she sees fit. Vesting this authority in a very specific person in the executive branch was an explicit decision made by Congress; it did not give the judiciary this authority.

None of that mattered to District Judge Mark Pittman, however. “The HEROES Act does not mention loan forgiveness,” Pittman writes. “If Congress provided clear congressional authorization for $400 billion in student loan forgiveness via the HEROES Act, it would have mentioned loan forgiveness.” Because the specific words “loan forgiveness” are not in the HEROES Act, Pittman reasons the Secretary of Education was acting outside his authority and usurping Congress’ power.

More troubling than Pittman’s rationale for declaring student loan forgiveness unconstitutional is the fact that he accepted the case in the first place. The plaintiffs, Myra Brown and Alexander Taylor, brought a lawsuit against the Biden administration because they were ineligible for debt forgiveness under the President’s program.

Brown is ineligible for any debt forgiveness under the Program because her loans are commercially held. And Taylor is ineligible for the full $20,000 in debt forgiveness under the Program because he did not receive a Pell Grant. Id. at 3–4. Because Brown loses out on $20,000 in debt forgiveness and Taylor loses out on $10,000, they disagree with the lines drawn for the Program’s eligibility criteria

In other words, Brown and Taylor say they have standing to sue because they were injured by not being included in the program’s eligibility requirements. The pair sued to stop the nationwide implementation of a program they wished to be a part of. Not only is this illogical, but it also violates the “injury in fact” element to demonstrate standing. To qualify, an injury must be “concrete and particularized,” not generalized. Student loan borrowers who do not qualify are not injured by somebody else’s loan being forgiven.

That’s why, until Pittman’s ruling, each court to rule on a lawsuit challenging the Biden student loan debt relief program had dismissed the suit for lack of standing. For example, District Judge William Griesbach, of Wisconsin, dismissed a lawsuit brought by taxpayers against the debt forgiveness program because the “plaintiff lacks standing.” The plaintiffs appealed to the Supreme Court, where Amy Coney Barrett also turned away the case.

The Biden administration appealed Pittman’s decision to the Fifth Circuit, the most conservative appellate court in the nation.