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Saturday, July 13, 2024 | Back issues
Courthouse News Service Courthouse News Service

Texas and Montana sue Biden administration over protections for gender-affirming care

The two Republican-led states argue that the new HHS rule defining sex discrimination under the Affordable Care Act will undermine their laws restricting gender-affirming health care.

AUSTIN, Texas (CN) — In a lawsuit filed Tuesday, Texas and Montana challenge a new rule from the Department of Health and Human Services prohibiting federally funded health care providers from refusing to provide gender-affirming care to transgender patients.

In a 38-page complaint filed in the U.S. District Court for the Eastern District of Texas, the states seek to temporarily and permanently enjoin the HHS and Secretary Xavier Becerra from enforcing the new rule, set to take effect on July 5. 

Texas Attorney General Ken Paxton said in a statement announcing the lawsuit that his goal is to stop the Biden administration from holding federal funds hostage to get health care providers to perform what he sees as experimental and dangerous procedures.

“This is yet another example of Joe Biden trying to sidestep the Constitution and use agency rulemaking to advance unpopular, unlawful and destructive policies,” said Paxton. 

In his own statement, Montana Attorney General Austin Knudsen called the new rule an “assault on the Constitution and Montana values.”

Published last month, the department’s final rule sets new guidance for how health care providers should implement Section 1557 of the Affordable Care Act, which adopts anti-discrimination language found in other statutes, including Title IV Civil Rights Act of 1965 and Title IX of the Education Amendments of 1972. Such provisions prohibit discrimination based on race, color, sex, age, national origin and disability in education.

The department’s action includes within the category of sex discrimination any discrimination based on one's “sex characteristics, including intersex traits; pregnancy or related conditions; sexual orientation; gender identity; and sex stereotypes.”

This rule would apply to nearly every hospital, clinic and pharmacy, because, as the plaintiffs point out in the complaint, 98% of health care providers participate in government programs such as Medicare.

In objecting, Texas and Montana argue that the department acted outside of its authority to draft the new rule and define discrimination on the basis of sex and contrary to Title IX's original scope. They also say the rule is arbitrary and capricious.

Furthermore, the states argue they will be forced to allow, and possibly cover with taxpayer funds, state hospitals to provide hormone therapies and gender-confirmation surgeries to transgender patients.

"If a covered entity would perform a hysterectomy for the purpose of treating uterine cancer, it must be willing to remove a healthy uterus for the purpose of facilitating a gender transition," read the complaint. "Or if a covered entity would prescribe puberty blockers to treat precocious puberty, it must be willing to prescribe them to a minor girl seeking to live as a boy."

Were the rule to be enforced, the states say they fear that their restrictions on gender-affirming care would be undermined. Lawmakers in both Texas and Montana have enacted bans on gender-affirming care for minors in the past year.

While both states are clear to detail in the complaint the restrictions they have on providing gender-affirming care to minors, they do not make clear that, without the rule, transgender adults would not be refused the same care.  

After mounting legal challenges, both states' laws have made it before their respective state supreme courts, which will be tasked with deciding whether the laws should be enforceable. However, while Texas’ ban remains in effect as the state high court determines its legality, Montana’s law has been blocked from enforcement since September.

In addition to this most recent legal action from the two red states, Texas previously filed a similar lawsuit against the Biden administration over protections for LGBTQ+ students at federally funded educational institutions. 

Paxton is suing to nix a rule promulgated by the Department of Education that includes discrimination based on gender identity as sex discrimination under Title IX of the Education Amendments.

The Department of Health and Human Services did not immediately respond to Courthouse News' request for comment.

Texas and Montana have asked the court to declare the rule unlawful, block the rule from taking effect on July 5 and permanently enjoin the department from enforcement.

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Categories / Civil Rights, Government, Health

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