Title IX and Affordable Care Act Don't Forbid Sexual Orientation and Gender Identity Discrimination

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….

Comments

[BravoCharlieDelta]

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."

Democrats are trying to make this doctor tell this patient he doesn't have a prostate to preserve the patient's "dignity" and reduce harmful "stigma".

I hope SCOTUS overrules this case and these Democrats can get the care they deserve.

[Longtobefree]

We shouldn't outlaw globes just because some still think the earth is flat.
Delusional people are to be pitied or treated, not followed.

[Frank Drackman]

You mean those Idiots who don't know the Phases of the Moon are reversed in the Southern Hemisphere???
Seriously, probably a number of this August group don't know that, and if you don't you might say you know the Earth is round, but you don't really believe it.

Frank

[Gasman]

the moon is of course the same, the phases the same, it is merely that people tend to look at objects in the sky while facing where the object is closest to the horizon. If they too faced south while viewing the moon, as do those in the northern hemisphere, then they would see it just as we do.

[Frank Drackman]

So you believe the Earth is flat?? Because it would have to be for the Phases to look the same everywhere. Don't get too close to the Edge! you'll fall off.

[Frank Drackman]

https://www.timeanddate.com/moon/phases/@953987
Check it out.

[Rossami]

Interesting site. But it does not prove what you are claiming.

The link you provided goes straight to the phases of the moon as seen in South Africa. To avoid differences in time and longitude, I used the same site to look at the same page for Berlin. While the apparent orientation of the moon is flipped, the phases of the moon are identical.

[Krychek_2]

Democrats are trying to make this doctor say no such thing. The doctor has discharged his duty by telling the patient that there is a prostate that needs to be treated. What the patient chooses to do with that information is up to the patient.

[BravoCharlieDelta]

Why did he have to go to court in order to do that free from consequence?

[I Callahan]

Correct. Now do vaccines.

[not guilty]

"Democrats are trying to make this doctor tell this patient he doesn’t have a prostate to preserve the patient’s 'dignity' and reduce harmful 'stigma'."

To which Democrats do you refer, and on what facts do you base your claim? Please be specific.

[not guilty]

Still waiting, BCD.

[BravoCharlieDelta]

https://eppc.org/publication/hhs-imposes-transgender-mandate-in-health-care/

Pay attention dude. It was an act by the Democrats at the HHS that prompted this case.

Unreal how little you people know.

[Nige]

I find this very hard to believe. Transgender people tend to be acutely aware of their own biology. Someone would have to be in a pretty bad state to deny they had a prostate.

[Rev. Arthur L. Kirkland]

It is acceptable to mention at this blog that Judge Kacsmaryk is an openly gay-bashing judge, or that he was nominated and confirmed by Republicans because he has a record of homophobia?

Carry on, clingers.

[BravoCharlieDelta]

"You're right, ma'am, since you identify as a woman you do not have a prostate."

Sincerely,

Dr. REV. ARTHUR L. KIRKLAND, MD.

[Reallynotbob]

But that's the thing. Nobody ever said the doctor had to agree with the patient, including the government.

[Scooter]

NPC Alert.

[Ed Grinberg]

https://en.wikipedia.org/wiki/NPC_(meme)
Art, you should totally add that picture to your profile!

[Frank Drackman]

You prefer the in-the-closet-gay-bashing judges??

[Rev. Arthur L. Kirkland]

I prefer judges who prefer progress, reason, education, inclusiveness, modernity, science, tolerance, and freedom to backwardness, superstition, ignorance, insularity, dogma, bigotry, authoritarianism, and pining for "good old days" that never existed.

[Zarniwoop]

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.”

The opinion doesn’t make it very clear what the problem is, and what legal relief is being sought. Dr. Hurley should have been better off simply telling the patient, “fine, you’re a woman. A woman with a prostate. Get it treated.” I can’t fathom how reliance on that rather indisputable fact would be actionable in any sense against Dr. Hurley in the first place, regardless of Sec. 1557.

But IMHO Dr. Hurley’s credibility on this issue would have gone up quite a bit if he’d pleaded that irregardless of her gender identity, “[she] was indeed a biological man with a prostate, and that [she] needed to seek urgent medical treatment for [her] prostate cancer.” (alterations from original). Using the male pronoun here makes it sound like the good doc doesn’t actually consider female-identifying patients as “females who happen to have a prostate”, regardless of his assertions in the pleading.

[TwelveInchPianist]

” Using the male pronoun here makes it sound like the good doc doesn’t actually consider female-identifying patients as “females who happen to have a prostate”, regardless of his assertions in the pleading.”

They’re not females who just happen to have a prostate. They have a prostate because they’re male.

[Zarniwoop]

Is the doc worried about being sued for a medical diagnosis of “this person with a prostate has prostate cancer, get it treated”?

Or is this fishing for an Art. III advisory opinion on a socially-divisive labeling issue from a conservative TX judge, for something with no realistic chance of legal liability?

[TwelveInchPianist]

Maybe he's worried about giving incorrect medical advice. A woman who has a prostate would be an intersex person, and the treatment of such cancer could bring up all sorts of unique issues. But "a biological man with a prostate" is clear and unambiguously correct.

[Sarcastr0]

Well, you sure seem to be fishing!

[I Callahan]

What’s your opinion on what all this means?

[Sarcastr0]

Who knows? There seem to be huge gaps in what we know of the facts (as would be expected in this stage of litigation).

But I'm not going to wildly speculate.

[Toranth]

But I’m not going to wildly speculate.

Your material as a comedian is picking up recently.

[BravoCharlieDelta]

Male and female are terms of biological sex. You mean to use “man” and “woman” which describe the gender roles.

Edit your comment and correct it.

[Zarniwoop]

Thanks for making a silly demand for an edit approx two hours after the 5 minute edit window closed.

[Bubba Jones]

Tell me again that this isn't a mental illness.

[Reallynotbob]

Okay, trans-phobia is a mental illness.

[TwelveInchPianist]

Believing that men who identify as women don't have prostates is a mental illness? Sure it is.

[Sarcastr0]

Who is being required to believe this? Indeed, who actually believes this?

[David Nieporent]

Indeed, who actually believes this?

Allegedly, the patient in question.

[Nige]

Yeah, allegedly, this seems highly dodgy to me, any trans person I've known has been highly conscious of their health, they're obliged to take it pretty seriously.

[I Callahan]

Maybe, but that’s the exact argument the doctor is making.

[Nige]

Is it? because I'm not sure what argument the doctor is trying to make, legally. If that case is as described, a mental health referral would almost certainly be called for.

[Nige]

Given the factual biological existence of trans men and women, you're just in denial.

[I Callahan]

They exist because they CHOOSE to be that way. Nor because it’s natural, normal, or not mental illness. It’s you who’s in denial.

[Sarcastr0]

You say they choose, and then you say it's mental illness. You can't even be internally consistent.

A sign you hate first, and rationalized second.

[VinniUSMC]

They have a mental illness, gender dysphoria.

Opting for surgeries, hormones, etc to alter yourself physically to match your illness is a choice. Trans is a choice.

Treat the illness, don't just try to mask the symptoms.

[Sarcastr0]

Trans is not the surgeries, it is an identity.

Your ignorance betrays how little you care about the actual facts. Which is how these social wedge issues work.

They neither break your nose nor pick your pocket, and yet you burn with hatred at people you don't know.

[Nige]

Is gender dysphoria classifed as a mental illness, or is this a dismissive thing people say, handwaving away both gender dysphoria and mental illness as if neither are of significance?

[Josh R]

Gender dysphoria is a mental illness (see DSM-5). However, what VinniUSMC and a host of others won't accept is the most effective treatment is usually gender-affirming care. And no, your gender identity (like sexual orientation) is most likely not a choice in most cases.

[Michael P]

You think that personal choice doesn't play a determining role in substance abuse or eating disorders, which are classic example of mental illnesses? Interesting.

[Sarcastr0]

1. You think people are choosing to feel like a gender they are not and go through all this nonsense, partially from people like you?!!

2. The path may vary, but being mentally ill is not a choice.

3. Do you hate anorexics? Ask yourself what’s different here, and think on that.

[Nige]

Are all mental illnesses the same? Are all sufferers of mental illness the same? Is gender dysphoria ACTUALLY a mental illness, or is this said to trivialise it, and also mental illness in the process? Interesting.

[Nige]

Noody chooses to be trans. It's well documented.

[VinniUSMC]

Given the factual existence of people with surgically embedded "scales" and surgically forked tongues, I guess Nige believes that lizard people are real. Given the factual existence of people with people who file their teeth and claim to be vampires, I guess Nige believes that vampires are real.

Trans people exist because we made them exist. Circular logic for the win.

[Sarcastr0]

There's some neuroscience you seem entirely ignorant of.

[Nige]

Well, yes, those people exist, whatever you choose to call them, though it might be more polite to ask them how they'd prefer to be adressed and referred to, but good manners is an old-fashioned virtue you don't see much of these days, alas and alack for the detrioration of decent values etc. QED, I guess.

[BravoCharlieDelta]

Believing a male with prostate cancer has a prostate is transphobic if that male believes he is a woman!

Sincerely,
Reallynotbob and Democrats at HHS

[Nige]

If she is a trans woman, then yes, it is.

[TwelveInchPianist]

[Josh R]

At first blush, the conclusion is right but the analysis could be much simpler. There is no need to address under what circumstances Bostock's but-for cause standard applies (or does not apply) to Title IX and the ACA because it appears the doctors' decisions pass muster under that standard (the decisions would have been exactly the same regardless of the sex of the patients).

[BravoCharlieDelta]

But it’s not regardless of the patients sex. Only males can have prostate cancer since only males have a prostate.

[defaultdotxbe]

If you look at it in a broader sense, the Dr. would deliver a cancer diagnosis to a patient that had cancer, regardless of sex or gender identity.

Or, in what I think should be the sense the court would look at it, an accurate diagnosis to the best of his ability, regardless of yada yada yada.

[Reallynotbob]

This feels like a ruling in search of a problem.

1. The government did not take any action against these doctor plaintiffs. The doctors sued prospectively based on what they considered to be a "credible threat" of enforcement. The court found that was adequate for standing.

2. The doctors' treatment decisions do not appear to vary based on gender identity at all. The one wants to tell trans women that they still have prostates (they do) and recommend screenings or treatments. The other feels minors should not, for medical reasons, receive gender-affirming hormone treatments, and that for some adults (not all) gender-affirming therapies are not "medically appropriate." I fail to see the sex discrimination issue even under Bostock.

3. It's also a little odd that the court devotes a lot of time to critique the use of Title VII textual analysis to inform Title IX textual analysis, but then says the Title IX analysis should be grafted onto the ACA.

[CJColucci]

We have far too many of those. Along with windy opinions that stray far from what is needed to decide the case as auditions for promotion.

[not guilty]

The trial court considered standing in an earlier opinion denying the defendants’ motion to dismiss. https://www.govinfo.gov/content/pkg/USCOURTS-txnd-2_21-cv-00163/pdf/USCOURTS-txnd-2_21-cv-00163-0.pdf The treatment of the injury in fact requirement is weak tea. It is not apparent from that opinion that the plaintiff physicians pleaded that they are treating transgender or same-sex attracted patients, and it is merely speculative and conjectural whether they will encounter such patients in the future.

[Michael P]

1. We've seen a lot of cases brought by people who went looking for someone to persecute -- think Elaine Photography, or Masterpiece Cakeshop.

2. The argument that was previously made in VC comments is that some hormones are considered appropriate for treating developmental disorders related to biological sex, and it would be illegal sex discrimination to deny those to transgender children.

[bernard11]

Why is a guy who thinks transgenderism is a delusion hearing this case?

[Mr. Bumble]

You and Rev. Costco have made this claim; got a source?

[TwelveInchPianist]

This:

"Second, the belief that one is trapped in the body of the wrong sex “is generated by a disordered perception of self. Such a fixed, irrational belief is appropriately described as a delusion."

[Rev. Arthur L. Kirkland]

Check the evidence advanced during the confirmation hearing. This guy went out of his way to be known as a bigot.

[Bob from Ohio]

"Why is a guy who thinks transgenderism is a delusion hearing this case?"

Why did the gay judge hear the Prop 8 case?

It is a delusion, any judge who thinks otherwise is also to deluded to be a judge.

[not guilty]

"Why did the gay judge hear the Prop 8 case?"

Perhaps because no litigant there sought Judge Walker's recusal prior to judgment on the merits?

[Rev. Arthur L. Kirkland]

" It is a delusion "

More or less delusional than an adult believing in supernatural Christianity, or in a silly God who forbids consumption of shrimp cocktail or cheeseburgers, or in a paltry God whose clergy reside in opulent mansions while children go hungry?

[TwelveInchPianist]

This is a surprisingly apt comment for you, Arthur.

Gender ideology is essentially a religion. If people want to believe that folks can be born in the wrong body, fine.

But it's bigoted to insist that others adopt your beliefs, and it's criminal to perform major bodily alterations of children in the name of this religion.

And keep it out of public schools.

[not guilty]

What indicia of being a religion do you refer to here?

[Abdul Abulbul Amir]

A shared belief system.

If you are a man that believes he is a woman, or believes in God, or believes himself to be a quarter horse, all are similar.

[not guilty]

Uh, no. There is nothing religious about recognizing that gender identity and anatomy are, for some persons, incongruent.

[Abdul Abulbul Amir]

Gender identity is a belief. It is based on the professed belief of the trans person.

A person’s sex is determined or confirmed by physical attributes. Gender or species identity is determined by professed belief.

[Josh R]

So is sexual orientation. However, the distinctions that put sexual orientation and gender identity on one side and other beliefs on another side are 1) it's a belief about one's own being (a belief n God is not), 2) it is far more prevalent than the belief you are a quarter horse, and 3) the most effective treatment for "curing" the belief ends up to be accepting it (again not the case for believing you are a quarter horse).

[Randal]

Ugh, you're totally ignorant, tiny pianist. If you really hate the religion that your parents raised you into, you can abandon it. But a trans person can't just decide to be non-trans. Believe me, of all the trans (and gay) people I know, none of them wanted it, and almost all of them hated it.

Here's something you can try. Go out in drag, and see how you feel. I tried it once because I thought it would be a funny Halloween costume. It made me physically ill. I was totally surprised -- I have nothing against cross-dressing in principle, but I couldn't do it. That's what made me realize that gender is more than just having a dick. Now imagine feeling that way all the time!

If you want to make some right-wing hay, the better option than pretending that gender dysphoria isn't real would be to point out the inherent contradiction between embracing gender identity and rejecting gender roles. If gender identity is so important to people that they're cutting their dicks off, that means there's gotta be something really different about being a woman than being a man. Otherwise, how would you even know you were the "wrong" one? Gender dysphoria is proof that men and women are not the same.

[Nige]

‘Gender ideology is essentially a religion’

Things that are medically and scientifically studied, classified and treated are all religions to you lot.

It's bigoted to hate trans people because they're trans and to deny them health care and to pretend their existence is a stigma or a shame or a threat to anybody.

[I Callahan]

Because he’s logical, capable and not in denial?

[Frank Drackman]

"Sex Change Operation" doesn't change one's Sex, which is determined at Concepcion when Mr. Sperm meets Miss Ovum, you're merely a Man with his balls cut off and a fake gash, or a Chick with her Tits cut off and a fake Schlong, and all you have to do is look at the Phil Spector Impersonator heading the US Pubic Health Service Corpse to understand...

Frank "XY"

[Randal]

I don't know why you care about this other than it's something MAGA is trying to build a culture war around. Are you a MAGA culture warrior, Eugene?

As !bob pointed out, it's not even clear what the controversy is. Maybe you're highlighting it as another example of the courts being willingly but misguidedly dragged into the right's culture wars, but it doesn't seem so from your post. You seem genuinely interested in the "case."

[Rev. Arthur L. Kirkland]

Riling right-wingers;
the disaffected law prof,
lathering his rubes.

[Frank Drackman]

Defiling single wingers,
the infected Def Coord
Gargling with his pubes,

see that the House finally called for Repubiclowns, hammering a nail into Fancy Nancy P's Coffin (too soon???)

Frank

[Rev. Arthur L. Kirkland]

Don't feel too sorry for Speaker Pelosi . . . she gets to watch Pres. Biden and a Democratic Senate install a stream of reasoning, qualified, modern judges.

And to watch the Republicans try to accomplish anything in a House of Representatives with a slim majority based on a handful of kooks who would rather preen for delusional, bigoted halfwits than govern.

[not guilty]

It is unfortunate that Republicans will control the House of Representatives, but in historical context, Democrats did pretty well in this year's midterms. By way of comparison, Republicans in 1982 lost 26 House seats. Democrats in 1994 lost 52 in 1994 and 63 in 2010. Republicans lost 40 in 2018. https://www.presidency.ucsb.edu/statistics/data/seats-congress-gainedlost-the-presidents-party-mid-term-elections

[Rev. Arthur L. Kirkland]

If Democrats possessed enough Senate votes to overcome Sen. Manchin (D-Hooterville) and Sen. Sinema (D-Space Force) on consequential issues, a Democratic House would have been nice. At 50 or 51 Democratic senators, however, it probably doesn't matter all that much.

A flimsy Republican House majority -- and the clown show it seems destined to become -- likely positions Democrats a bit better for the 2024 election, though.

[Frank Drackman]

have a feeling Man-chin and the Lip-stick lesbo will be switching to the other side soon (Semen-a's used to it)

[kkoshkin]

In a sane world, this judicial opinion would be completely unnecessary. Just having read the excerpts on this blog, it is obviously correct, and there isn't really a plausible counter-argument.

But we don't live in a sane world, and I'm sure the judge will be pilloried as a bigot or some kind of "-ist" or "-phobe." Never mind that he is obviously supported by basic biology that any ninth grader knows from class and that any second grader knows from natural instinct.

[Nige]

Yes, this sounds about the level of understanding of biology of a ninth grader who isn't much good at biology.