Judge wonders if anti-transgender doctors sued 'because they wanted there to be discrimination'

Federal appeals court judges and a Justice Department attorney this week expressed skepticism about a lawsuit filed by two Texas doctors challenging the Biden administration’s policy against anti-transgender discrimination in health care, with one judge wondering if they sued simply “because they wanted there to be discrimination.”

In 2021, the U.S. Department of Health and Human Services announced it would consider Section 1557 of the Affordable Care Act, which bans sex discrimination in health care, to also ban discrimination based on sexual orientation and gender identity. This is in keeping with the Supreme Court’s 2020 ruling in Bostock v. Clayton County, which applied the same standard to federal law banning sex discrimination in employment.

Some conservatives objected to this. Shortly after HHS made the announcement, internist Susan Neese and pathologist Ralph Hurley sued HHS Secretary Xavier Becerra and the federal government in U.S. District Court in Texas, arguing that Section 1557 should apply to biological sex only. They are represented by Jonathan Mitchell, a far-right lawyer who crafted Texas’s “bounty hunting” law directed at residents seeking abortions; brought suit against the Affordable Care Act’s mandate for coverage of HIV prevention drugs; and represented a Texas judge who refuses to marry same-sex couples.

At the trial court level, U.S. District Judge Matthew Kacsmaryk ruled that the Bostock decision doesn’t apply to Section 1557. He was appointed by Donald Trump and is known for his anti-LGBTQ+ and anti-abortion rulings. The federal government appealed the ruling to the U.S. Court of Appeals for the Fifth Circuit, contending the doctors don’t have legal standing to challenge HHS’s enforcement of Section 1557, as they haven’t done anything to violate it, nor do they appear likely to.

Neese and Hurly claim in the suit that they’re at risk of sanctions from the U.S. government, including loss of federal funds, because they won’t provide certain services to transgender clients. Neese said she won’t treat trans patients who are under 18, as she opposes gender-affirming care for them, and she treats all people 18 and older without discrimination, but she doesn’t provide gender-affirming care to them because it’s outside her specialty. She and Hurly both said they’d had trans patients refuse tests they recommended.

But Judge Dana Douglas, part of a three-judge Fifth Circuit panel that heard the case Monday, 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,” according to Courthouse News Service.

Justice Department lawyer David Peters, representing the federal government, said neither doctor has to fear enforcement actions. There is no evidence they’ve committed anti-trans discrimination, he said, and Neese has a legally acceptable reason for not providing hormones or other gender-affirming treatments, as they’re not part of her internal medicine practice.

“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 in court. Becerra himself has said he doesn’t believe they are violating it.

Judge Catharina Haynes pointedly confronted Mitchell, saying, “I don’t even understand why they brought this case.” She wondered if his clients sued “because they wanted there to be discrimination.”

“No,” Mitchell responded. “The reason they brought the case is because Secretary Becerra is threatening them with loss of federal funds.”

Haynes also noted that Texas has banned gender-affirming care for trans minors, and the federal government isn’t likely to punish a doctor for complying with state law.

Judge Edith Jones appeared to lean more toward the doctors’ side, and as the hearing wrapped up, she “went on a tangent,” Courthouse News Service reports, about trans kids' access to school locker rooms as well as gender-affirming care.

“It’s one thing to sit in Washington and make categorical decisions about things,” she said. “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.”

Peters ignored her remarks and simply asked that the Fifth Circuit reverse Kacsmaryk’s ruling. The judges didn’t say when they would issue a decision.

Pictured, left: Jonathan Mitchell