Federalist: 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.”