(CN) — A Texas physician’s fears the Biden administration will cut federal funding for her medical practice for her refusal to treat transgender patients under 18 are unfounded, a Justice Department attorney told a Fifth Circuit panel Monday.
Dr. Susan Neese is an internal medicine specialist affiliated with a Baptist hospital in Amarillo, Texas.
She has several patients who are transgender or dealing with gender dysphoria, all of whom are in their 30s and 40s. She will not see transgender patients who are minors.
Neese explained in court filings that she declined to help a 16-year-old get transitional hormones since she does not think minors’ brains are mature enough to fully understand the ramifications of their actions, and she was uncomfortable due to the complex medical and emotional issues involved.
“Dr. Neese is categorically unwilling to prescribe puberty blockers or hormone therapy to minors, or to assist a minor with transitioning,” she declared in a brief.
Doctors across the country are grappling with such scenarios as an estimated 1.6 million teenagers and adults in the U.S. identify as transgender — 43% of them under age 25, according to a June 2022 study by the UCLA School of Law’s Williams Institute.
And youth transgender care has become a favorite issue of social conservatives — 22 Republican-led states, including Texas, now have laws or policies banning gender-affirming care for minors, as tracked by Human Rights Watch, an LGBTQ advocacy group.
Pushing back against the movement, Health and Human Services Secretary Xavier Becerra tried to give LGBTQ people some protection based on the U.S. Supreme Court’s June 2020 decision in Bostock vs. Clayton County.
In a 6-3 ruling, the court held that Title VII of the Civil Rights Act of 1964, which bars workplace sex discrimination, also prohibits firing or refusing to hire someone for being gay or transgender.
Becerra issued a notification in May 2021 stating that his agency, on account of Bostock, would interpret the ban on sex discrimination in Section 1557 of the Affordable Care Act to include discrimination based on sexual orientation and gender identity.
Three months later, Neese and Dr. James Hurly, a pathologist in Amarillo, filed a class action against Becerra and the government in Amarillo federal court.
They sought a declaration that Bostock is not as far-reaching as the Biden administration’s view of it. They argued that it does not, in fact, outlaw gender identity and sexual orientation discrimination; it only bars discriminating based on biological sex.
For instance, they argued, Bostock allows companies to decline to hire bisexual people, so long as they do so for both men and women.
U.S. District Judge Matthew Kacsmaryk, a Donald Trump appointee and former general counsel of the Christian legal organization First Liberty Institute, sided with Neese and Hurly and ruled that Becerra’s notification be set aside as unlawful.
He did not tailor his decision to the plaintiffs’ requested relief, however. He declared the Supreme Court’s Bostock holding is inapplicable to Section 1557 of the Affordable Care Act and Title IX, which proscribes gender discrimination in federally funded schools.
The Biden administration appealed to the Fifth Circuit. A three-judge panel of the New Orleans-based court heard arguments Monday.
Justice Department attorney David Peters attacked the plaintiffs' standing.
“There is nothing in the record to indicate that any of these plaintiffs are going to engage in conduct that violates the statute,” Peters said, adding Becerra has stated he does not believe Neese or Hurly are flouting his antidiscrimination notification.
U.S. Circuit Judge Edith Jones, a Ronald Reagan appointee, refused to take Peters at his word that the government will not go after Neese. Jones concentrated on the doctor’s proclamation she was “categorically unwilling” to provide gender-change care to minors.
Peters explained that in the government’s view Neese is not violating Section 1557 because she has a legitimate nondiscriminatory reason for not giving such treatment to minors: It is outside her area of specialty — internal medicine.
U.S. Circuit Judge Catharina Haynes was candid with the plaintiffs’ attorney, Jonathan Mitchell. “I don’t even understand why they brought this case,” she told him.
Haynes, a George W. Bush appointee, underscored that both Hurly and Neese see transgender patients. So, she observed, it is not like they are saying “I can’t help you because you are transgender.” She questioned if the two doctors brought the case “because they wanted there to be discrimination.”
“No,” Mitchell replied. “The reason they brought the case is because Secretary Becerra is threatening them with loss of federal funds.”
U.S. Circuit Judge Dana Douglas, a Joe Biden appointee, also questioned the plaintiffs’ standing. She pointed to Neese’s interactions with one of her patients, a 30-something biological female who identifies as male.
Although the patient is complaining of pelvic pain and bladder issues they have brushed off Neese’s urging to undergo a pelvic ultrasound because they do not want medical technicians to see their vagina, according to Neese.
Hurly said his practice group had diagnosed a biological male with prostate cancer, but the patient refused to accept the diagnosis since they identified as a woman and maintained it was impossible for a woman to have a prostate.
Seizing on these anecdotes, Douglas told Mitchell, “Your clients are not withholding treatment or tests. They are complaining that their patients are refusing to undergo tests. That’s totally different.”
Mitchell would not budge. He said Neese is at risk of enforcement because she is withholding treatment for minors.
Jones went on a tangent at the end of the 40-minute hearing, moving to the context of transgender children in school locker rooms.
“That’s the problem with all of this,” she complained. “It’s one thing to sit in Washington and make categorical decisions about things. But when you’re talking about putting little girls — I have three granddaughters — in situations where they’re going to run around half-dressed with half-dressed little boys, and when you are talking about giving them puberty blockers so they can’t mature, well boys can’t mature.”
She continued, “You know, that’s the difference between being some kind of 25-year-old in Washington and actually being a parent who has to think about the best way to bring up their child. But that’s my view.”
Peters sidestepped the broadside.
“We ask that the district court’s judgment be reversed,” he said.
The judges did not say when they would rule on the appeal.
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