Shortly after the end of Donald Trump’s Administration, a group of his top officials formed a new organization intended to challenge attempts by the Biden Administration to change Trump’s policies. With Stephen Miller, White House counselor and the evil genius behind many of Trump’s policies, as its president and board chair, America First Legal Foundation boasts as board members former Chief of Staff Mark Meadows, former Acting Attorney General Matthew Whitaker, and former Director of the Office of Management and Budget Russ Vought. Co-founder with Miller is Gene Hamilton, former senior counselor to the Secretary of Homeland Security and former counselor to the Attorneys General in the Trump Administration. Not surprisingly, finding ways to limit the impact of the Supreme Court’s ruling in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), is high on their list of priorities. In Bostock, the Supreme Court held that sexual orientation and gender identity discrimination claims came within the sphere of prohibited sex discrimination under Title VII of the Civil Rights Act of 1964. Justice Neil Gorsuch, writing for a 6-3 majority, purported to use “textual” analysis to reach this result based on the “original meaning” of the language used by Congress in 1964, which, according to Gorsuch, would be “biological sex.”
America First’s litigation vehicle for this project is Neese v. Becerra, 2022 WL 1265925, 2022 U.S. Dist. LEXIS 75847 (N.D. Tex., April 26, 2022). U.S. District Judge Matthew J. Kacsmaryk denied the government’s motion to dismiss this case on April 26. The suit targets the extension of Bostock’s reasoning to Title IX of the Education Amendments of 1972 and Section 1557 of the Affordable Care Act.
This case is an audacious example of overt forum-shopping. The suit was filed in the U.S. District Court in Amarillo, Texas, a courthouse within the Northern District of Texas. There is only one district judge assigned to that courthouse — Judge Kacsmaryk – so any case filed there goes directly to him. They could not have picked a better judge for their case. Kacsmaryk was among the early Trump judicial nominees, a Federalist Society member and former deputy general counsel of First Liberty Institute, a litigation group that pushes for the broadest possible interpretation of religious freedom as against government regulations. LGBT groups protested his nomination, pointing to his statements that homosexuality as “disordered,” and that transgender people are delusional and suffering a mental disorder. (As a member of the Red Mass Committee of the Roman Catholic Diocese of Fort Worth, his use of the term “disordered” is not surprising, given the use of this term by the Catholic Church to describe homosexuality.) Despite the iron grip on judicial nominations by then-Majority Leader Mitch McConnell and then-Judiciary Committee Chair Chuck Grassley in the Senate, it took three tries for Trump to get this one through. The 2017 nomination died at the end of session; Trump renominated in 2018, but that died at the end of session; Trump renominated in 2019. This time, Kacsmaryk passed the Judiciary Committee and the Senate floor on party-line votes. He’s the judge who enjoined the Biden Administration’s attempt to modify southern border control policies without going through a complete Administrative Procedure Act cycle.
The lawsuit was filed last year on behalf of three doctors, said to practice in Texas and California, but the judge’s opinion does not specify whether any of them practices within the geographical scope of the district court in Amarillo. No matter, as jurisdiction to sue the federal government lies in every federal district court. They claim fear of being sued or prosecuted for discrimination under Section 1557 because of their approach to dealing with transgender patients as the basis of their standing to sue.
Although one would expect a judge with Kacsmaryk’s background to be challenged with a recusal motion, or even to voluntarily recuse in an LGBT case given the controversy surrounding his appointment, there is not a whiff of that in the opinion. The Justice Department moved to dismiss on two grounds: standing of the plaintiffs, and failure to state a claim in light of Bostock. The essence of plaintiffs’ case is arguing that Bostock does not apply to Title IX and Section 1557, so the Biden Administration’s view (expressed in the President’s first executive order issued in January 2017 and a subsequent Notification sent to health care providers and insurers by HHS) is contrary to law.
As to standing, the plaintiffs allege that they have all had transgender plaintiffs, including minors (the main focus of their discussion), and that they have provided gender-affirming care to some when they felt it justified, but that they believe gender-affirming care is not appropriate for all minors who identify as transgender, that surgical alteration is never justified for minors, and that they should be free to treat their patients consistent with their patients’ “biological sex” and the doctors’ ethical views. The Notification that HHS sent to health care providers early in the Biden Administration advised that the agency would apply Bostock’s reasoning to hold that Section 1557 of the Affordable Care Act, whose prohibited grounds of discrimination are cross-referenced from other federal laws including Title IX, applies to claims of discrimination because of sexual orientation or gender identity, and that HHS would enforce the statute accordingly. This was directly contrary to the interpretation published by the Trump Administration as recently as January 2021, shortly before the transfer of office to Biden. The plaintiffs described various scenarios in which they believe that the treatments they were bound to provide or to deny based on their professional ethics would place them in danger of lawsuits by patients and enforcement by HHS under Section 1557. Judge Kacsmaryk decided this was sufficient to give them standing to challenge the interpretation. They are seeking declaratory and injunctive relief at this point. None of them have been sued or investigated by HHS on this issue.
As to failure to state a claim, plaintiffs disputed that Bostock’s reasoning was applicable to Title IX and Section 1557 (although several other federal courts since June 2020 have found the reasoning applicable). They note that the 5th Circuit has yet to issue a controlling precedent on this, and the Supreme Court has not taken up the question. The judge decided that as a “pure question of law” this was an open issue, and that plaintiffs’ allegations were sufficient to put it in play.
In particular, the judge zeroed in on differences in language and structure between Title VII and Title IX. Title VII, an employment discrimination statute, was construed in Bostock to impose a “but-for” test of intent for disparate treatment employment discrimination claims. Judge Neil Gorsuch’s opinion for the Court reasoned that it was impossible for an employer to discriminate against an applicant or employee “because of” their sexual orientation or gender identity without discrimination “because of” their sex, using the language of the statute. Furthermore, Title VII has been construed – a construction bolstered by Congress in the Civil Rights Restoration Act of 1991 – to apply so long as a forbidden ground of discrimination, such as sex, was a factor in a personnel decision, albeit just a contributing one.
By contrast, Title IX, adopted a few years after Title VII, prohibits discrimination by educational institutions that receive federal money “on the basis of sex.” Plaintiffs argue that this is a different standard from that imposed by Title VII, and point to various provisions of Title IX that at least by implication would suggest a biological definition of sex and a binary treatment of sex, including a provision of the Title IX regulations (which is frequently invoked by defendant school districts in cases involving restroom and locker room access by transgender students) that authorize separate facilities for boys and girls. Their argument is that Gorsuch’s reasoning in Title VII is peculiar to Title VII and the workplace issues to which it applies, and is not transferable to other contexts, such as schools or health care providers. This argument, found the judge, puts the interpretive issue in play, so he denies the motion to dismiss for failure to state a claim.
As noted above, this case is clearly a set-up, filed in Amarillo specifically to present it to Judge Kacsmaryk, noting the strong rightward tilt of the 5th Circuit, where Republican appointees among active judges outnumber Democratic appointees by 12-5 (including 6 Trump appointees), and the plaintiffs’ clear aim is to get this up to the Supreme Court’s 6-3 conservative majority to get a “definitive” ruling that Bostock does not apply to Title IX (and by extension to the ACA Section 1557). Civil rights enforcers in the Department of Education and the Department of Health and Human Services are already involved in investigating and pursuing claims in several courts. The Supreme Court has already declined opportunities to address the question, but a 5th Circuit ruling along the lines proposed by America First in this lawsuit would create a circuit split that would prove most enticing to at least four and possibly more members of the court.
Counsel for plaintiffs from America First Legal Foundation is Gene Hamilton, with local counsel in Amarillo from Sprouse Shrader Smith PLLC, and Jonathan F. Mitchell of Austin. Lead attorney from the Civil Division of the Justice Department is Jeremy S. B. Newman, with Brian Walters Stoltz from the U.S. Attorney’s Office in Dallas and Jordan Landum Von Bokern from the Justice Department in Washington.
This case bears close watching. A “nationwide” injunction from Judge Kacsmaryk would seem likely, if his analysis on the motion to dismiss is any indication, and could throw a wrench into ongoing enforcement activity, not only by HHS and DOE, but by other federal agencies with sex discrimination jurisdiction.Tags: Affordable Care Act, America First Legal Foundation, Bostock v. Clayton County, Civil Rights Act of 1964, Civil Rights Restoration Act of 1991, discrimination because of sex, discrimination on the basis of sex, Donald J. Trump, forum shopping, gender identity discrimination, gender-affirming care, Gene Hamilton, Joseph R Biden, Justice Neil Gorsuch, Mark Meadows, Matthew Whitaker, Neese v. Becerra, Northern District of Texas, sex reassignment surgery, sexual orientation discrimination, Stephen L. Miller, Title IX, Title IX of the Education Amendments of 1972, Title VII, transgender minors, U.S. Court of Appeals for the 5th Circuit, U.S. District Court, U.S. District Judge Matthew Kacsmaryk, U.S. Supreme Court