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[UPDATE] Another court has blocked the attempt by the Department of Health and Human Services (HHS) to rewrite Title IX and Section 1557 of the Affordable Care Act, ruling that the agency has no authority to force states to permit gender transitions nor require that doctors or medical facilities perform gender transitions.
Coinciding with a federal judge’s injunction stopping HHS’s new mandate in Florida, U.S. District Court Judge Louis Guirola last week issued an injunction in a lawsuit brought by 15 states, but opted to go a step further and issue a nationwide injunction that will keep the policy from taking effect in all 50 states while the merits of the case are adjudicated.
Mississippi and Tennessee were the primary plaintiffs in the case, but were also joined by Alabama, Georgia, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Virginia, and West Virginia.
As the Freedom Center discussed in an article published on Saturday (see below), HHS issued a final rule in May that stated that the prohibition on “discrimination on the basis of sex” in both Section 1557 and Title IX includes gender identity.
Under the new rule, all facilities that receive federal funding or accept federal insurance (which are nearly all medical facilities) would be required to administer puberty blockers and cross-sex hormones and perform gender mutilation surgeries on patients, including minors.
HHS claims the rule is only adhering to the Supreme Court’s decision in Bostock v. Clayton County, which found that under Title VII of the Civil Rights Act employers cannot fire employees due to their sexual orientation. In justifying its reinterpretation, HHS claims that the Supreme Court universally stated that “discrimination on the basis of sex includes gender identity.”
However, the Court made clear that its ruling only applied to Title VII’s employment safeguards.
However, that hasn’t stopped the Executive Branch from applying the ruling to existing laws nor has it stopped some courts from imposing the Bostock ruling on Title IX.
In this latest case, Guirola ruled that the Bostock decision does not apply to either Title IX or Section 1557, writing:
“HHS acted unreasonably when it relied on Bostock’s analysis in order to conflate the phrase ‘on the basis of sex’ with the phrase ‘on the basis of gender identity.’”
Featuring prominently in the judge’s ruling was the recent Supreme Court ruling in Loper Bright Enterprises v. Raimondo, which overturned Chevron v. National Resources Defense Council. The Chevron ruling created a standard known as the “Chevron deference,” which meant that when a statute was ambiguous, the court would defer to an agency’s interpretation of that text.
In Loper, the Supreme Court instructed lower courts to interpret the statutes themselves based on the meaning of the statute when passed, rather than what an agency claims the statute means.
Citing the new ruling, Guirola wrote,
“A ‘statute cannot be divorced from the circumstances existing at the time it was passed, and from the evil which Congress sought to correct and prevent.’ Consequently, this Court cannot accept the suggestion that Congress, with a ‘clear voice,’ adopted an ambiguous or evolving definition of ‘sex’ when it acted to promote educational opportunities for women in 1972.”
Guirola argued that Congress clearly meant biological sex in both Title IX and Section 1557. As such, he ruled that the logic of Bostock cannot be applied to Title IX.
While Title VII prohibits any discrimination because of sex, “Title IX’s regulations explicitly permit, and sometimes even require, consideration of sex,” Guirola wrote.
He explained, “These regulations protect (1) sex education classes designated by sex, (2) comparable, ‘separate toilet, locker room, and shower facilities on the basis of sex,’ (3) ‘separate ‘physical education classes or activities during participation in…sports,’ and (4) ‘separate [sports] teams for members of each sex.’”
The judge referenced the Second Circuit’s ruling in Soule v. Connecticut Association of Schools that stated, “…while an employer risks Title VII liability when it makes distinctions among employees based on sex, an education program risks Title IX liability when it fails to distinguish between student athletes based on sex.”
Guirola concluded that a nationwide injunction was warranted because the plaintiffs are likely to succeed on the merits of the case and that any state or medical provider affected by the rule will “sufferable irreparable harm” in the form of substantial compliance costs and lost federal funding.
{Published July 7, 2024} Once again citing the recent Loper decision, another judge has checked the power of the administrative state’s efforts to use the final rulemaking process to reimagine and undermine Congress’s intent in passing laws passed years and even decades ago.
A federal judge has issued an injunction covering the state of Florida that halts a new Department of Health and Human Services (HHS) rule which would have prevented the state from prohibiting gender transitions in minors and instead require doctors to prescribe gender transition drugs and perform mutilating surgeries against their religious and ethical beliefs.
U.S. District Court Judge William Jung found that the Biden administration changed the meaning of Section 1557 of the Affordable Care Act (ACA) and Title IX when it issued its new rule re-interpreting the statute.
On May 6, 2024, HHS issued its final rule, stating that “discrimination on the basis of sex” under Section 1557 of the ACA and the Title IX Amendment to the 1964 Civil Rights Act included discrimination on the basis of gender identity.
The new rule applies to any hospital or medical practice that accepts federal funding or federal insurance, such as Medicare Part B, which would effectively mean all providers.
HHS argues that denying a person a prescription for puberty blockers or cross-sex hormones or denying them gender transition surgeries if those drugs or operations could ever be used on a person for any other purpose is discrimination on the basis of gender identity.
The rule says that “[w]hen medically necessary treatments are categorically excluded when sought by transgender enrollees for purposes of gender-affirming care, but the same treatments are covered for cisgender enrollees, such exclusions may deny transgender individuals access to coverage based on their sex.”
Under the rule, hospitals cannot ban hysterectomies, castrations, or hormone therapy for the purpose of gender transitions if they would offer these treatments for another reason, such as a performing a hysterectomy for treating uterine or ovarian cancer or an orchiectomy for treating testicular cancer.
Hospitals would also be required to house patients based on their gender identity rather than their biological sex.
As the current administration has so often done, HHS based its argument on the Supreme Court’s 2020 opinion in Bostock v. Clayton County. In that decision, the justices ruled that an employer cannot fire an employee because of their gender identity due to Title VII’s prohibition on discrimination on the basis of sex. The Court explicitly stated, however, that its ruling did not pertain to other statutes, including Title IX, and did not take up challenges to sex-segregated facilities.
“The Final Rule is stillborn and a nullity if Title IX does not prohibit discrimination on the basis of ‘gender identity.’ The Eleventh Circuit has spoken on this point, clearly: Title IX does not address discrimination on the basis of gender identity,” ruled Jung.
Jung quoted the 11th Circuit, which stated that in Title IX and Section 1557 discrimination “‘because of sex’ unambiguously means biological sex”.
The 11th Circuit wrote that the many carveouts allowing sex-specific exceptions such as for sex-segregated housing “would be rendered meaningless” when conflicting with a transgender person’s gender identity and would provide more protection from discrimination based on gender identity than based on sex.
“That conclusion cannot comport” with the text and meaning of Title IX.
Jung also referred to the recent Supreme Court ruling in Loper Bright Enterprises v. Raimondo, noting that Executive Branch interpretation of a statute was “especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time.”
“In contrast,” Jung ruled, “the Executive Branch interpretation of Title IX now conjured comes decades after the enactment of Title IX and, as seen below, the interpretation has changed repeatedly over time.”
He noted that there have been four interpretation changes of the statute by HHS since 2016. He said that political changes result in opposite interpretations.
“As Loper states, the whole point of having a written statute is ‘every statute’s meaning is fixed at the time of enactment,’” Jung wrote.
“Title IX, decades old, did not change meaning in 2024. HHS’s attempt to alter prospectively the meaning of Title IX shows the wisdom of Loper’s statement that ‘agencies have no special competence in resolving statutory ambiguities. Courts do.’”
Jung also noted that that there are very few studies on the use of gender-transitioning treatments. He also referred to decisions made by various other nations to restrict gender transitions in minors and cited the Cass Review, which found no evidence of benefit of gender transitions.
He upheld Florida’s right to make its own decisions on gender transitions.
The injunction covers the state of Florida only.
No matter how many times the Biden administration tries to use Bostock to support their efforts to radically change laws, courts continue to tell them no.
We have noted this in numerous articles: Bostock does not cover Title IX or any other law, including the ACA. It was narrowly confined to Title VII, stating that transgenders who are qualified and do their jobs as required cannot be fired simply for being transgender. It never said, and does not mean, that all laws suddenly conflate gender identity with biological sex. In fact, the Supreme Court stated that fact in plain English.
Fortunately, courts continue to uphold the law by refusing to redefine sex according to changing cultural trends and political desires and instead are ruling that any statute must be interpreted according to what legislators wrote and intended at the time they wrote and passed that statute.
That shows why the Supreme Court’s recent Loper decision overturning the 1984 precedent of Chevron U.S.A., Inc. v. Natural Resources Defense Council was such a critical ruling.
For 40 years, Chevron forced courts to give deference to executive agencies in how they chose to interpret ambiguous text within a law, forcing them to allow the interpretation to mean whatever the government said the law meant.
Over the years, though, Chevron has only emboldened agency personnel to believe that they have the right and the power to rewrite any text of any law — whether ambiguous or clear as day — no matter when that law was written.
Title IX, for example, was passed more than 50 years ago. The ACA was passed 15 years ago. And yet, agencies like the Department of Education and HHS truly believe that it is within their purview to reinterpret those laws and rewrite them based on what they want to do — not what Congress wanted to do when they passed the laws.
Worse, in rewriting the ACA to force gender ideology on the healthcare system, HHS bureaucrats even believe they have the authority to supersede duly legislated state laws and the religious liberty and freedom of conscience rights of doctors and hospitals.
Two weeks ago, the Supreme Court found, rightly, that Chevron was wrongly decided, as under the Constitution and the Administrative Procedures Act (APA), agencies do not have the authority to rewrite and change the meaning of laws, because in so doing, they are effectively writing new laws and usurping Congress’s power to legislate.
Thanks to the demise of Chevron, judges are now reasserting their own constitutional authority to interpret the law and act as a check on rogue agencies.
The decision in Loper was announced on June 28, 2024, but already judges are enthusiastically citing it in their own rulings, proving that Loper may actually be one of the most important decisions for our system of checks and balances and the separation of powers in a lifetime.
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