The Volokh Conspiracy
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So held Judge Matthew Kacsmaryk (N.D. Tex.) Friday in Neese v. Becerra; the opinion is long, but here's an excerpt:
Section 1557 of the Affordable Care Act prohibits discrimination "on the basis of sex." See 42 U.S.C. § 18116(a) (incorporating, among other things, Title IX's prohibition of discrimination "on the basis of sex," 20 U.S.C. § 1681(a), into Section 1557). In Bostock, the Supreme Court held Title VII's "because of … sex" terminology prohibits "sexual orientation" and "gender identity" discrimination in employment. Citing Bostock, the United States Department of Health and Human Services ("HHS") announced it would "interpret and enforce" Section 1557's prohibition on discrimination "on the basis of sex" to include "on the basis of sexual orientation" and "on the basis of gender identity."
Plaintiffs—two Texas-based physicians—allege Defendants misread Bostock and argue that healthcare providers may continue sex-specific medical decisions relevant to "gender identity" "so long as one does not engage in 'sex' discrimination when doing so." Specifically, Plaintiffs allege neither Section 1557 nor Bostock prohibits such discrimination, "as long as they would have acted in the exact same manner if the patient had been a member of the opposite biological sex." Plaintiffs "object only to the Secretary's claim that Bostock defined 'sex' discrimination to encompass all forms of discrimination on the basis of sexual orientation or gender identity." Plaintiffs state they "fully intend to comply with Bostock and its interpretation of 'sex.'"
Plaintiffs make sex-specific decisions relevant to "gender identity" in their medical practices—and both receive federal money subject to Section 1557. Dr. Neese "has treated patients suffering from gender dysphoria in the past and has on occasion prescribed hormone therapy for them." But Dr. Neese "does not believe that hormone therapy or sex-change operations are medically appropriate for everyone who asks for them, even if those individuals are suffering from gender dysphoria, and she will on occasion decline to prescribe hormone therapy or provide referrals for sex-change operations." "Dr. Neese is categorically unwilling to prescribe hormone therapy to minors who are seeking to transition, and she is equally unwilling to provide referrals to minors seeking a sex-change operation." She "believes that it is unethical to provide 'gender affirming' care to transgender patients in situations where a patient's denial of biological realities will endanger their life or safety."
Plaintiffs allege "Dr. Neese has treated many transgender patients … in the past, and she expects to continue doing so in the future." 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 preventive care that corresponds to their biological sex, and she intends to provide care to these individuals in a manner consistent with her ethical beliefs."
Dr. Hurly "recognizes that some biological men may identify as women (and vice versa)." In his practice, Dr. Hurly "has encountered situations … when he must insist that a patient acknowledge his biological sex rather than the gender identity that he asserts." Plaintiffs provide an example: Dr. Hurly "once diagnosed a biological male patient with prostate cancer, but the patient refused to accept Dr. Hurly's diagnosis because he identified as a woman and insisted that he could not have a prostate." Dr. Hurly "explain[ed] to this patient that he was indeed a biological man with a prostate, and that he needed to seek urgent medical treatment for his prostate cancer." Plaintiffs claim, "Dr. Hurly has treated transgender patients in the past, and he expects to continue doing so in the future." They allege: "Dr. Hurly is likely to encounter transgender patients who will deny or dispute their need for health care that corresponds to their biological sex, and he intends to provide care to these individuals in a manner consistent with his ethical beliefs."
Plaintiffs bring two causes of action: one under the Administrative Procedure Act ("APA") and one under the Declaratory Judgment Act ("DJA"). Plaintiffs argue Section 1557 only prohibits "sex" discrimination, which means a provider would have acted differently towards an identically situated member of the opposite biological sex. As for relief, Plaintiffs ask that the Court "hold unlawful and set aside" the Notification, "enjoin" Defendants "from using or enforcing the interpretation of [S]ection 1557 that appears in the Notification," "declare that [S]ection 1557 does not prohibit discrimination on account of sexual orientation and gender identity, … but that it prohibits only 'sex' discrimination, which means that provider would have acted differently toward an identically situated member of the opposite biological sex." …
What does "on the basis of sex" mean as used in Title IX? Defendants offer a simple answer: apply Bostock. Bostock "proceed[ed] on the assumption that 'sex' … refer[s] only to biological distinctions between male and female." Notwithstanding this assumption, the Supreme Court devised a "but-for cause" test and determined Title VII's "because of sex" terminology should be read to prohibit "sexual orientation" and "gender identity" discrimination in employment. Applying Bostock, Defendants ask the Court to implement a "but-for cause" test and interpret Title IX's "on the basis of sex" terminology identically to Title VII's "because of … sex" language.
For the reasons explained below, however, Bostock does not apply to Section 1557 or Title IX. And the Court will not export Bostock's reasoning to Section 1557 or Title IX. 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.
[1.] Bostock does not apply to Section 1557 or Title IX….
As the Bostock majority opinion states:
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination…. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. …
The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual 'because of such individual's sex.' …
[2.] Bostock's reasoning does not apply to Section 1557 or Title IX.
Defendants argue Bostock and its reasoning apply to Section 1557 and, accordingly, discrimination "on the basis of sex" includes discrimination on the basis of "sexual orientation" and "gender identity." …
Title IX reads no person "shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance [except as provided throughout the statute]." Because Title IX does not define "on the basis of sex," the Court must construe the phrase….
"Title VII differs from Title IX in important respects." Title IX is not Title VII, and "on the basis of sex" is not "because of sex." … Because Title IX prohibits "on the basis of sex," the Court cannot reflexively adopt Bostock's but-for causation analysis. 20 U.S.C. § 1681(a); see also Meriwether v. Hartop (6th Cir. 2021) ("[I]t does not follow that principles announced in the Title VII context automatically apply in the Title IX context."); Neal v. Bd. of Trs. of Cal. State Univs. (9th Cir. 1999) (Title VII "precedents are not relevant in the context of collegiate athletics. Unlike most employment settings, athletic teams are gender segregated."); Cohen v. Brown Univ. (1st Cir. 1996) ("It is imperative to recognize that athletics presents a distinctly different situation from … employment and requires a different analysis in order to determine the existence vel non of discrimination.").
Title IX presumes sexual dimorphism in section after section, requiring equal treatment for each "sex." See, e.g., 20 U.S.C. §§ 1681(a)(2) (allowing schools in some cases to change "from being an institution which admits only students of one sex to being an institution which admits students of both sexes" (emphasis added)), 1681(a)(8) (stating if father-son or mother-daughter activities are provided for "one sex," reasonably comparable activities must be provided for "the other sex" (emphasis added)). And Courts have long interpreted Title IX to prohibit federally funded education programs from treating men better than women (or vice versa). As written and commonly construed, Title IX operates in binary terms—male and female—when it references "on the basis of sex."
Title IX's prohibition against discrimination "on the basis of sex" cannot be reduced to a literalist but-for test. For instance, although not at issue here, Section 1686 states: "nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes." The implementing regulations clarify educational institutions "may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex." It is doubtful Section 1686 permits educational institutions to maintain separate living institutions for each "sexual orientation" and "gender identity," while a stand-alone Section 1681(a) prohibits same. The implementing regulation highlights the sex binary by referencing "the other sex"—which speaks directly to biological sex. 34 C.F.R. § 106.33; see also, e.g., 20 U.S.C. § 1681(a)(8) ("[I]f such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided for students of the other sex." (emphasis added)). "[T]here is no canon against using common sense in construing laws as saying what they obviously mean." If "on the basis of sex" included "sexual orientation" and "gender identity," as Defendants envision, Title IX and its regulations would be nonsensical.
As evidenced above, Title IX expressly allows sex distinctions and sometimes even requires them to promote equal opportunity. Defendants' theory actively "undermine[s] one of [Title IX's] major achievements, giving young women an equal opportunity to participate in sports." The effect of the Notification "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."
Although courts start with the words themselves, the text should be "interpreted in its statutory and historical context and with appreciation for its importance to the [statute] as a whole." … Title IX's "overarching purpose," which is "evident in the text" itself, is to prohibit the discriminatory practice of treating women worse than men and denying opportunities to women because they are women (and vice versa)….
Defendants' reinterpretation of Title IX through the Notification imperils the very opportunities for women Title IX was designed to promote and protect—categorically forcing biological women to compete against biological men. "A community made up exclusively of one sex is different from a community composed of both." United States v. Virginia (VMI) (1996). The "physical differences between men and women … are enduring: the two sexes are not fungible." Such "immutable" distinctions between the sexes are "determined solely by the accident of birth." Frontiero v. Richardson (1973). For example, "[m]en and women simply are not physiologically the same for the purposes of physical fitness programs," because "equally fit men and women demonstrate their fitness differently." …
Ironically, Defendants' interpretation invites SOGI [sexual orientation/gender identity] discrimination by excluding student-athletes from participating on the women's or men's teams based solely on gender identity. Presumably, this would force biological women who identify as men to compete against biological men, even if the biological women have the same physiological characteristics as a typical biological woman. Such an interpretation makes little sense given Title IX's text, structure, history, and purpose. There are, of course, outlier individuals with physical attributes above or below their sex's average. Yet sex-separated sports only exist to accommodate the average physiological differences between the sexes. Title IX is not written for individual, case-by-case sex separation. The statute instead applies to each sex as a whole.
Moreover, Title IX says nothing about "sexual orientation" and "gender identity." And why would it? Title IX's protections center on differences between the two biological sexes—not SOGI status….
These contradictions and conflicts arise in the healthcare context to which Section 1557 applies. For example, a hospital could not tailor care to the biological differences between men and women. Importing Bostock-style reasoning or similar "but-for cause" analysis to Title IX would presumptively criminalize sex-specific treatments that discriminate against patients "on the basis of sex." When adopting Section 1557, Congress could have included "sexual orientation" and "gender identity" in the statutory text. Congress chose not to do so. Instead, 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….