Courts Defend Title IX from Department of Health and Human Services

The Department of Health and Human Services can’t rewrite the Affordable Care Act’s protection against “sex” discrimination to include discrimination based on “gender identity,” federal judges in Mississippi and Florida ruled late last week.

The decisions temporarily block HHS from forcing federally-funded medical facilities to perform experimental transgender medical interventions on minors — and sticking taxpayers with the bill.

The Affordable Care Act (ACA) determines, in part, what medical institutions must do to receive government funding. One of these requirements, according to Section 1557, is providing care regardless of sex.

It imposes this funding condition by piggy-backing on Title IX, the embattled education amendment prohibiting sex discrimination in education and other federally-funded activities.

Section 1557 reads:

An individual shall not, on the ground prohibited under … title IX of the Education Amendments of 1972 … be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, and part of which is receiving Federal financial assistance.

The Department of Health and Human Services enforces the ACA, including this section (Guirola ruling, 7).

HHS released a new “final rule and interpretation” of Section 1557 in May, expanding sex discrimination to include “discrimination on the basis of ‘gender identity.’”

The rule’s sweeping redefinition of discrimination comes with radical new instructions for medical institutions to keep their government funding, including providing medical care based on patients’ “gender identity” and regardless of medical necessity (Jung ruling, 50).

Under the Final Rule, for example, a hospital that performs hysterectomies on women and girls with uterine cancer must also perform hysterectomies on the healthy uteruses of women and girls who believe they are boys.

In the same way, the final rule also requires government-funded medical insurance — including Medicare and Medicaid — pay for transgender medical interventions, which is illegal in many states.

If an insurance carrier pays for an orchiectomy when a patient has testicular cancer, for instance, it must also pay for one to make a male patient feel more like a girl. Refusing to do so, according to the Rule, would be discrimination (25).

HHS claims the Final Rule merely brings Section 1557 into line with Bostock v. Clayton County, the 2020 Supreme Court case that redefined “sex” in Title VII of the 1964 Civil Rights Act to include “sexual orientation and gender identity.”

Florida and Tennessee filed lawsuits against HHS within of week of the Final Rule’s release, arguing HHS:

Forces taxpayers to pay for transgender medical interventions — costly and unsafe procedures that aren’t in the public’s best interest.
Forces medical practices in states that prohibit performing transgender medical interventions on minors to choose between forfeiting federal funding and breaking the law.
Violates Title IX, which protects against biological sex discrimination.

Judge Louis Guirola Jr. of the U.S. District Court for the Southern District of Mississippi granted Tennessee a preliminary injunction against the Final Rule nationwide.

Guirola argues Bostock clearly doesn’t apply to Title IX, citing part of the Supreme Court’s opinion which states:

None of these other [sex discrimination] laws before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any question today.

Guirola subsequently concludes that the authors of Title IX meant for it to protect biological sex. The judge defends his decision with Adams v. School Board of St. Johns County, a recent case in which the Eleventh Circuit wrote:

If ‘sex’ were ambiguous, it is difficult to fathom why the drafters of Title IX went through the trouble of providing an express carveout for sex-separated living facilities, as part of the overall statutory scheme.

Judge William Jung of the U.S. District Court for the Middle District of Florida also issued his opinion Wednesday, seconding Guirola’s argument that Bostock only applies to the Civil Rights Act.

Jung also found the Final Rule violates Adams, writing:

The Eleventh Circuit has spoken on this point, clearly: Title IX does not address discrimination on the basis of gender identity. Frankly, this ends the issue—the new Rule appears to be a dead letter in the Eleventh Circuit.”

Unlike Guirola, however, the Florida judge offered insight on whether using taxes to pay for transgender medical interventions serves the public interest.

He specifically notes that HHS never defends the value of transgender medical interventions, only its definition of “sex.”

“HHS’s boldness here is noteworthy and one might say brash, given that ‘there are no largescale population studies of gender dysphoria,” Jung comments, citing the American Psychiatric Association.

Citing evidence like the Cass report, he concludes: “The HHS’s present view on ‘gender affirming care’ is far from shared by other medical authorities. And the science seems to be trending the other way.”

HHS joins the Department of Education (DOE) as the second major government agency since May to unilaterally expand the definition of “sex” in Title IX to include “gender identity.”

Their regressive changes aren’t holding up in court.

At least three federal district courts have blocked the DOE’s April rewrite of Title IX. Another ruled against the DOE’s preceding “reinterpretation” of Title IX, which it released in June 2021.

Jung and Guirola’s rulings only further solidify that legislators meant for Title IX to protect women, who are biologically distinct from men, but no less entitled to equal opportunities in education, athletics and medicine.

It’s about biology, not ever-changing perceptions of masculinity and femininity. Please pray for courts to continue protecting the integrity of Title IX.

Additional Articles and Resources

Third Court Halts DOE’s Title IX Rewrite, Girls’ Sports & Spaces Preserved

Second Federal Court Halts DOE’s Title IX Rewrite – Protecting Girls’ Sports & Spaces

Court Rules Against DOE’s Title IX Rewrite, Saving Women’s Sports & Spaces – For Now

Olympic Privilege? Officials Protect Women’s Sports — But Only at the Highest Level

Huge Title IX Win: Department of Education’s 2021 Interpretation Ruled ‘Unlawful’

Gov. Sanders’ Powerful Speech Defending Girls’ Sports: ‘We Will Not Comply’

Title IX Redefinition of ‘Sex’ Faces Defiance and a Flood of Lawsuits

Florida and Oklahoma Reject Biden Admin’s Rule Letting Men into Women’s Bathrooms and Sports

New Biden Admin. Rule Lets Men into Women’s Locker Rooms, Bathrooms and Sports

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