I've been pretty sick this past week; I think it was the flu plus something else. So I've been looking for some good news to share. Good news seems in short supply in the '20s, so I was wondering if I would find any. But I did! Neese vs. Becerra 2022 is just the thing to share with you.
Xavier Becerra is the head of HHS, who is the defendant. Plaintiffs are Susan Neese and James Hurly, physicians who are concerned that HHS is interpreting the Affordable Care Act to make gender-affirming care required under US law. Section 1557 of the ACA forbids practices in health care that discriminate "on the basis of sex," which draws on Title IX which prohibits discrimination "on the basis of sex." HHS has taken the Supreme Court's Bostock decision concerning Title VII, which reinterprets "sex" to mean "sexual orientation and gender identity," or SOGI in addition to biological sex.
Judge Matthew Kacsmaryk denies the validity of this move made by HHS. He states that "Bostock does not apply to Section 1557 or Title IX. And the Cuort will not export Bostock's reasoning to Section 1557 or Title IX. Instead, the Court analyzes "on the basis of sex as used in Title IX (and incorporated in Section 1557), by giving the terms its ordinary public meaning at the time of enactment and in the context of Title IX."
The judge points out that in section after section, Title IX is written as if sex were binary. Title IX talks about "both sexes," and "the one sex and the other sex," etc: "As written and commonly construed, Title IX operates in binary terms--male and female--when it references "on the basis of sex.""
The judge points out that Title IX must use sex to decide if sex discrimination if taking place or not. "Title IX"s overarching purpose," which is "evident in the text" itself is to prohibit the dicriminatory practice of treating women worse than men and denying opportunities to women because they are women . . . [thus] Defendants' reinterpretation of Tile IX through the Notification imperils the very opportunities for women Title IX was designed to promote and protect--categorically forcing biological women to compete against biological men."
Noting the many absurdities this gutting of Title IX by SOGI would introduce, the judge cites a 1982 case that stated, "Interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available."
The judge points out further that, "Title IX's protections center on differences between the two biological sexes--not SOGI status. Sure enough, members of Congress have attempted to amend Title IX to shield such categories from discrimination. But those members have repeatedly failed. . . . Title IX's ordinary public meaning remains intact until changed by Congress, or perhaps the Supreme Court. As noted above, the ordinary public meaning of "sex" turned on reproductive function when Congress enacted Title IX. . . . And because the Court finds Title IX 's "on the basis of sex" language does not include "sexual orientation" or "gender identity" status, the Court holds the Secertary [of HHS] cannot alter the phrase by administrative fiat."
The judge then issued "declaratory relief" to the Plaintiffs, which means they cannot be punished by HHS for not proceeding on the basis of HHS' redefinition of the word "sex."
Now, we all imagine this decision will be appealed to the circuit's Court of Appeals. But from there, it could well go all the way to the Supreme Court. This is a happy thought.
Matthew Kacsmaryk, you did your mother proud! Thank you for refusing to allow Title IX--which US women fought for--to be weaponized against them! Thank you!