The Supreme Court’s decision in Bostock v. Clayton County, Georgia is but two weeks old, and the mischief has already begun. Last week the leftist group Lambda Legal Defense filed suit against the Trump administration, arguing the Department of Health and Human Services’ (HHS’) recent regulations interpreting the Affordable Care Act’s (ACA’s) prohibition on sex discrimination violates Bostock’s holding that transgender discrimination is illegal sex discrimination. Not only is Lambda wrong, its lawsuit proves Bostock was wrong too.
Writing for the five-justice majority in Bostock, Justice Neil Gorsuch twisted his way through a series of hypotheticals to conclude that “when an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex.” Thus, according to the Bostock court, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Thanks for All the New Lawsuits, Neil Gorsuch!
While Bostock addressed the meaning of “sex discrimination” within the context of Title VII’s employment discrimination statute, in its lawsuit filed last week against the Trump administration, Lambda relies on Gorsuch’s language to challenge the HHS’s newly released regulations that address Section 1557 of the ACA.
Section 1557 prohibits discrimination “on the basis of . . . sex” in “health programs and activities.” President Obama’s HHS had left the meaning of this phrase undefined for the first six years following the ACA’s passage, but in the final year of his presidency, his HHS team promulgated regulations that defined discrimination “on the basis of . . . sex” to include “discrimination on the basis of sex stereotyping, and gender identity.”
The 2016 HHS regulations further defined “gender identity” as “an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.”
The Obama HHS went further, with the 2016 regulations mandating that health insurance providers and employee benefits plans “treat individuals consistent with their gender identity.” The 2016 regulations also barred covered insurers from adopting “a categorical coverage exclusion or limitation for all health care services related to gender transition,” claiming that such an exclusion would be “discriminatory on its face.”
HHS rescinded these regulations mere days before the Bostock decision, with the new regulations deleting the Obama administration’s definition of “sex” for purposes of the ACA. Also eliminated were the mandates that health-care providers “treat individuals consistent with their gender identity,” and that insurance companies cover “transition-related services.” No contrary regulations were added, however, with Trump’s HHS merely eliminating what Obama’s team had done, leaving the term “sex” undefined, as it is in Title VII and the ACA.
Trump Admin’s Return to Sanity Isn’t Discrimination
While Lambda, on behalf of a sprawling group of plaintiffs including several physicians and activist organizations, claims HHS’s deletion of “sex stereotyping and gender identity” from the regulatory definition of sex discrimination conflicts with the holding of Bostock, it does not.
In Bostock, the Supreme Court majority bypassed the question of what “sex” means, noting that the employers had maintained that “sex” referred to “status as either male or female [as] determined by reproductive biology,” while the plaintiffs argued “the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation.”
The majority, though, found no reason to decide the question and instead “proceed[ed] on the assumption that ‘sex’ . . . referred only to biological distinctions between male and female.” Thus, Bostock does not stand for the proposition that “sex” means “gender identity” for purposes of Title VII, much less as used in the ACA.
Nonetheless, because the Bostock court concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” Lambda argues the ACA prohibits discrimination based on “gender identity.” But here Lambda faces an initial challenge: the newly released regulations do not address whether discrimination based on “gender identity” is illegal. Rather, the regulations are silent on the question, so they cannot possibly violate Bostock.
Lambda’s complaint skims over this defect by arguing that HHS’s elimination of “gender identity” from the definition of sex discrimination “not only invites health care insurers and providers to discriminate against LGBTQ people seeking health care, but it also introduces substantial confusion among health care providers and insurers regarding their legal obligations and the right of the populations they serve to be free from sex discrimination . . .”
In responding to Lambda’s complaint, HHS will likely argue that the new regulations cannot be challenged for something they do not say, and that the court should wait for a live controversy to interpret the meaning of “sex discrimination” for purposes of the ACA.
Give This Man a Hysterectomy, Stat!
The second problem with Lambda’s legal argument is more fundamental and proves fatal, whether a court considers the question now or waits until there is an actual controversy in a future case: what Lambda portrays as discrimination based on gender identity is not sex discrimination under the reasoning of Bostock.
Specifically, Lambda argues in its complaint that HHS’s revised rules will result in “increased discrimination by health plans, particularly against persons seeking gender-affirming care.” Examples of such “gender-affirming care” that health plans might discriminatorily deny transgender persons, according to Lambda, include “hair transplant, scalp advancement, brow reduction, lip reduction or augmentation, rhinoplasty, check and chin contouring, jawline modification, blepharoplasty, or other facial feminization techniques”; “laser hair removal and electrolysis, on the face and elsewhere on the body”; “surgeries involving the neck, such as cartilage reduction (modification of the Adam’s Apple) and vocal feminization surgery”; “breast augmentation and reduction”; “other body contouring procedures, such as waist reduction, hip/buttocks implants, at transfer, pectoral implants”; and “lessons/training to modify the vocal range.”
Denying transgender people coverage for these procedures is not discrimination, much less sex discrimination. While the Obama administration’s 2016 regulations barred covered insurers from adopting “a categorical coverage exclusion or limitation for all health care services related to gender transition,” claiming that such an exclusion would be “discriminatory on its face,” Bostock’s reasoning establishes the contrary—that there is no sex discrimination in play. In fact, in attempting to apply Bostock reasoning in the context of a health-care case exposes the fundamental fallacy underlying the Supreme Court’s reasoning: that men and women are indistinguishable.
Also, Give Sarah a Fake Penis
Let’s start with the latter point and apply Bostock’s reasoning. In Bostock, in analyzing whether a transgender employee was a victim of sex discrimination, the Supreme Court explained that “if changing the employee’s sex would have yielded a different choice by the employer-a statutory violation has occurred.”
Now, we’ll apply this standard in the context of health insurance coverage or medical care, with a hypothetical woman, Sarah, who suffers from gender dysphoria. Sarah asks her doctor to remove her uterus, but her doctor refuses because Sarah’s uterus is healthy. Sarah’s health insurance company also refuses to pay for the removal of a healthy uterus. Did Sarah’s doctor and health insurance company discriminate against Sarah on the basis of her sex?
No. If Sarah were a man, the doctor would have likewise have refused to remove his . . . uterus? It doesn’t work! Bostock makes no sense when applied in realm of sex-based distinctions.
It is all well and good for the Supreme Court to speak—as it did in Bostock—of traits or activities that an employer would find acceptable for a woman, but not for a man. But there are real differences between men and women, and the Supreme Court’s test ignored that reality.
Failing the Test of Reality
Moreover, even if we manipulate the Supreme Court’s test to accommodate the biological differences between men and women, the result remains: no discrimination. Why? Because if a man asked his doctor to remove his healthy testicles, the doctor would refuse, and coverage would be denied.
Now, going further with the hypothetical, there is also no discrimination because Sarah is transgender. That’s because if another woman who is not transgender asked her doctor to remove her healthy uterus, the doctor would refuse as well.
Change healthy uterus for any of the other “gender-affirming” procedures Lambda claims doctors must perform and health insurance companies must cover, and the result is the same. There is no discrimination. There is no sex discrimination. And there is no transgender discrimination.
But what about the Obama administration’s regulatory mandate that health-care providers “treat individuals consistent with their gender identity”? The newly released HHS regulations rescind that regulation as well. So, will a health-care provider discriminate on the basis of sex under Bostock if the medical caregiver does not treat an individual “consistent with” his or her “gender identity”?
You’re a Bigot If You Don’t Check Men for Cervical Cancer
Revisiting Sarah, our hypothetical woman suffering from gender dysphoria, provides the answer—and the answer is that Bostock is nonsense. Consider, for instance, how a doctor would treat Sarah consistent with her gender identity—that of a male. The doctor would check her prostate, test for signs of testicular cancer, and not perform a cervical examination. And it would be considered discrimination under Bostock if the doctor didn’t (or did) do these sex-based examinations.
After all, Bostock tells us that “if changing the employee’s sex would have yielded a different choice by the employer-a statutory violation has occurred,” and if Sarah were a man, the doctor would have performed a prostate exam and would not have performed a cervical exam. Voila: sex discrimination.
Of course, this is ridiculous, because Sarah is a woman, and not a man, no matter what gender she identifies as. But that doesn’t matter under Bostock, because the court adopted a standard that ignores all biological sex-based distinctions, and purposefully put to the side questions of pronouns, bathrooms, and locker rooms.
Justice Gorsuch had to, though, because when you bring in biological sex-based distinctions, it becomes clear that you are no longer talking about stereotypical traits and actions; and you are no longer talking about a man who is treated differently because he is perceived as too feminine, or a woman discriminated against for a too masculine aura. You are talking about a man who claims to be a woman or a woman who claims to be a man and who demands others—whether they be employers, teachers, or doctors—affirm a lie. You are talking about transgender individuals.
The Supreme Court could obfuscate that reality in Bostock, but Lambda’s lawsuit exposes, not just how extreme the Obama administration was, but how extreme the Supreme Court’s decision was. And when “sex” meets science, Justice Gorsuch will have some serious explaining to do.