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Appellate panel to consider implications of transgender health care on athletics

According to conservative organizations and politicians, the Biden administration is misinterpreting the definition of sex to expand transgender access to women’s sports.

(CN) — With a wave of legislation recently passed across the United States aimed at preventing transgender athletes from competing in sports that do not align with their biological sex, opposition has been mounting in the courts.

To date, more than 20 Republican-controlled states have passed or considered bills limiting transgender access to sports or certain gender-affirming medical procedures. In April, the Republican-led U.S. House of Representatives narrowly passed the Protection of Women and Girls in Sports Act, stating “sex shall be recognized based solely on a person’s reproductive biology and genetics at birth.”

Although the bill is not expected to advance in the Democratic-controlled U.S. Senate, it sends a strong message about the GOP’s legislative priorities should they take back Congress and the White House in 2024. 

Meanwhile, since 2021, legal challenges to so-called “trans bans” have sprouted in states including Arizona, Utah, Florida, Idaho, Texas and Connecticut, on grounds not limited to Title IX, equal protection, and the constitutional right to privacy.

Soon, the Fifth Circuit will consider the arguments against the Biden administration’s attempts to rewrite Section 1557 of the Affordable Care Act, which would withhold federal funding from doctors and institutions who decline to provide transgender health care. 

That case, Neese v. Becerra from the Northern District of Texas, is a certified class action filed by two Amarillo-based physicians who expressed reservations about the Department of Health and Human Services mandate to offer medical procedures that seek to alter a patient’s sex even if the procedure violates the doctors’ medical judgment or religious beliefs. Essentially, the rule expanded the definition of sex to include sexual orientation and gender identity.

The lead plaintiff, Dr. Susan Neese, is an internal medicine specialist who has treated patients with gender dysphoria but remains “categorically unwilling to prescribe puberty blockers or hormone therapy to minors, or to assist a minor with transitioning.”

In a more nuanced example, Neese said she had an adult biologically female patient who identified as male, and therefore refused to accept examinations or treatments on their female reproductive organs to discover suspected cervical or ovarian cancer. Similarly, plaintiff Dr. James Hurly, a pathologist, testified he once encountered an adult biologically male patient with prostate cancer who refused treatment because they identified as female and were adamant they didn’t even have a prostate. 

Under the HHS order, the plaintiffs argue their only options as health care providers would leave them vulnerable to the loss of federal funding or a medical malpractice lawsuit. Likewise, a proposed rule by the Department of Education would withhold Title IX funding from educational institutions that restrict transgender students from participating on teams consistent with their gender identity. 

Last November, a Texas federal judge agreed with the Neese plaintiffs, but refused to issue an injunction against the HHS rule. The Department of Justice appealed, and last week the conservative nonprofit Alliance Defending Freedom submitted an amicus curiae on behalf of three female athletes who believe an interpretation favorable to the government defendants would “upend the very opportunities Title IX was meant to protect.” 

Two of the female athletes — Chelsea Mitchell, an All-American long-jumper from Connecticut, and Madison Kenyon, a track and cross-country athlete at Idaho State University — competed against and lost athletic events to male athletes who identified as women. They argue the Biden administration is misinterpreting the implications of Bostock v. Clayton County, a landmark civil rights case which protects employees from discrimination based on gender identity. 

Bostock does not prohibit ‘discrimination on the basis of sexual orientation’ or ‘discrimination on the basis of gender identity,’” ADF’s brief reads. “It prohibits only discrimination on the basis of sex, and it allows discrimination against homosexuals or transgender individuals if (and only if) the same action would have been taken against an identically situated member of the opposite biological sex.” (Parentheses in original.)


Mitchell is also suing the state of Connecticut for its transgender inclusion policy. In both cases, ADF argues Title IX prohibits sex discrimination, but “not sex blindness.”

“The statute’s plain meaning and purpose are to prohibit sex based discrimination in educational programs, particularly discrimination against women,” according to the ADF brief. “This does not prohibit schools from noticing sex. Just the opposite. Sex-conscious decisions are sometimes necessary to promote equal educational opportunities.” 

James Baudhuin is an attorney in the Dallas-Fort Worth area who represented a plaintiff in a challenge to Texas’ rules for transgender athletes way back in 2017. There, a transgender male named Mack Beggs sought to compete with other males, but the state forced him to compete with females because it was the gender assigned on his birth certificate. Beggs went undefeated in the female division and won two consecutive state championships. 

Baudhuin said the Beggs case was less about the Beggs’ gender identity and more about the issue of transgender athletes allowed to take hormones that can enhance their performance. 

“I viewed it as a drug case,” he said by phone Tuesday. “All these people are up in arms about having the athletes [compete] according to their birth certificate … but we had somebody taking [performance enhancing drugs]. We were actually hamstrung by the birth certificate rule, so I look at it from a cheating perspective. If someone is taking testosterone or another hormone that is banned by every anti-doping agency in the world, is that fair?”

The Beggs case was dismissed as moot because he graduated before it could proceed. But Baudhuin acknowledged the gender issue can be more nuanced, particularly if a biological male athlete has already begun puberty and developed greater muscle mass or stronger bone structure than most biological females can achieve. 

“As long as the door is swinging toward more fair competition I think it is a good thing, but with all we’ve done for decades to achieve equal opportunities for women in sports … the [Biden] administration is trying to completely blow that out of the water," he said.

The Department of Education is currently accepting public comments on its proposed rule change regarding transgender athletes. Last month, a group of conservative senators signed a letter to Education Secretary Miguel Cardona stating “the proposed rule uses weakly-associated case law and polarizing social concepts to broaden the definition of women and girls to include individuals who identify as women, and in so doing, the intent of the law is destroyed and women are marginalized yet again.”

The senators urged the department to work with Congress to clarify the language and find solutions.

In a statement, ADF legal counsel Rachel Rouleau said the district court’s ruling in the Neese case was correct. 

“Female athletes deserve to compete on a fair and level playing field with other women, and Title IX has long protected equal opportunity for women to excel in sports,” Rouleau said. “We urge the 5th Circuit to not only protect female athletes but also doctors, who should never be forced to perform controversial and medically dangerous procedures that violate their consciences and religious beliefs. The district court rightly stopped the Biden administration’s gross overreach of its authority and political agenda, and we hope the 5th Circuit will affirm that ruling.”

A hearing in the case has yet to be scheduled.

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Categories / Civil Rights, Law, National, Politics, Sports

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