A federal judge in Texas has ruled that the White House wrongly extended ObamaCare’s discrimination protections to gay and transgender people last year.
In a 26-page decision filed Friday, US District Judge Matthew Kacsmaryk ruled that the Supreme Court’s 2020 decision in Bostock v. Clayton County — that prohibits workplace discrimination against LGBTQ people, including on the basis of sexual orientation and gender identity — does not apply to the landmark 2010 health care law.
Kacsmaryk, an appointee of former President Donald Trump, said that Congress could have included “sexual orientation” or “gender identity” in the text of the Affordable Care Act, but “chose not to do so.”
The judge said Section 1557 of the law prohibits discrimination on the “basis of sex” by incorporating Title IX of the Education Amendments Act of 1972, but neither specifically address LGBTQ people.
”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,” he wrote.
He said Title IX’s meaning “remains intact until changed by Congress, or perhaps the Supreme Court.”
The Department of Health and Human Services cited its interpretation of the Bostock ruling when it moved in May 2021 to alter “on the basis of sex” to include “sexual orientation” or “gender identity,” Kacsmaryk said.
Two Texas-based doctors, represented by former Trump White House adviser Stephen Miller’s America First Legal Foundation, filed a class action suit, alleging HHS misinterpreted Bostock.
Kacsmaryk said courts have interpreted Title IX as prohibiting “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,” he wrote.
“Title IX’s prohibition against discrimination ‘on the basis of sex’ cannot be reduced to a literalist but-for test,” Kacsmaryk continued.
The judge ordered both parties to submit “proposed judgments” within 10 days of his order.
With Post wires