"Purporting to implement the Affordable Care Act's prohibition on 'sex' discrimination," the Department of Health and Human Services regulation "Threatens States and healthcare providers with massive penalties for failing to align their policies, coverage decisions, and even medical care with patients' subjective gender identities rather than sex," the new suit says.
Much of the suit details the poor evidence base for so-called gender affirming care - social recognition as the opposite sex, puberty blockers, cross-sex hormones, and surgical removal of healthy breasts and genitals - and questions the scientific credentials of its leading adherents.
The feds are behind the curve of Europe, where several countries have sharply pulled back on gender affirming care - even treating schoolchildren as the opposite sex in language and dress - citing weak evidence of benefit and possibility of greater harm.
A year ago, England's National Health Service said it would stop prescribing puberty blockers outside of clinical trials and assess children already on medication, while emphasizing that gender dysphoria diagnoses cannot be based on children flouting sex stereotypes.
The roots of the new fight go back to the end of the Obama administration, when HHS first read gender identity into "Sex" in the Title IX-reliant Section 1557 of the ACA. President George W. Bush-nominated U.S. District Judge Reed O'Connor ruled in 2019 the conflation of gender identity with sex violated the APA and Religious Freedom Restoration Act.
President Donald Trump-nominated Judge Matthew Kacsmaryk then blocked guidance issued by HHS in 2022 in "Direct response" to Texas GOP Gov. Greg Abbott's directions to the Department of Family and Protective Services to "Investigate incidents of sex change procedures performed on minors." The feds claimed Section 1557 and two disability laws prohibit restrictions on "Medically necessary care, including gender-affirming care," based on sex, gender identity or gender dysphoria, but didn't bother explaining their reasoning and "Appear to misstate the law," making the guidance "Arbitrary and capricious" to Kacsmaryk.
Given its reliance on Title IX, whose "Text and structure confirm its biological-binary understanding of sex" and regulations specify it applies to "Both sexes," Section 1557 cannot purport to cover gender identity, the suit says.
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