Annelise Hanshaw, Missouri Independent
Missouri Attorney General Andrew Bailey is leading a coalition of seven states — including South Dakota — challenging a rule by the Biden administration that would preempt state restrictions on gender-affirming care.
Filed in United States District Court for the Eastern District of Missouri on Wednesday, the states are seeking to block the regulation and prevent the federal government from enforcing similar mandates.
The rule seeks to add protections to a section of the Affordable Care Act that prevent health care providers who discriminate on the basis of gender identity or sexual orientation from receiving federal funding, including through Medicaid and the Children’s Health Insurance Program.
The rule was set to go into effect July 5, with some provisions beginning later. But another coalition of attorneys general succeeded in their petition to block its implementation just two days prior. The judge in that case cited the recent U.S. Supreme Court decision to overturn “Chevron Deference,” a precedent that gave regulatory authority to federal agencies when statute is unclear.
Bailey, along with attorneys general from Utah, North Dakota, South Dakota, Iowa, Idaho and Arkansas, argues that the rule conflicts with their states’ restrictions on gender-affirming care for minors. Each has varying restrictions on payments for gender-affirming treatment, with Missouri blocking payment for all treatments for medical transition through Medicaid and CHIP.
“… states will be unable to enforce these duly enacted laws and longstanding policies without coming into conflict with the rule,” the attorneys general wrote in the lawsuit.
The American College of Pediatricians joins the attorneys general as a plaintiff. The ACPeds is a group of 400 physicians and other health care professionals in 47 states with a history of anti-LGBTQ advocacy.
“ACPeds members categorically do not provide medical interventions or referrals for, and do not facilitate or speak in ways that affirm the legitimacy of, the practice of ‘gender transition,’” the attorneys general wrote.
The lawsuit alleges that the organization’s pediatricians would suffer “significant financial harm to lose eligibility to participate in federal healthcare programs such as Medicare, Medicaid, and CHIP.”
One pediatrician in Utah is quoted in the lawsuit saying he would not “self-censor his opinions on transition efforts if the rule goes into effect.”
Predicting his noncompliance with the rule, the Utah pediatrician “faces the prospect of no longer caring for his patients, being fired from his employment and being unable to practice medicine in most settings,” the attorneys general wrote.
The rule violates physicians’ freedom of assembly, the lawsuit states, “by coercing them to participate in facilities, programs, groups and other healthcare-related endeavors that are contrary to their views and that express messages with which they disagree.”
The lawsuit also says it “coerces ACPeds members’ speech.”
“By forcing ACPeds members to tell patients directly, on their walls, and on their websites that they do not discriminate on the basis of gender identity, the rule forces ACPeds members to speak falsely, and it forces ACPeds members to fatally undermine their communication of their own medical ethical standards,” it says.
Beyond questions of constitutionality, the attorneys general allege that the rule goes beyond congressional authorization.
The rule interprets gender identity as protected by both including gender dysphoria as a disability and interpreting sex discrimination to include gender identity. The attorneys general disagree with this application.
Key to the case will be the judge’s interpretation of the 2020 U.S. Supreme Court Case Bostock v. Clayton County, in which a majority of justices ruled that gender identity was protected under Title VII, which is on employment discrimination.
The rule leans on some courts’ interpretation that transfers the Bostock decision to Title IX and the Affordable Care Act, according to its publication in the Federal Register. But the attorneys general cite decisions from judges in red states that do not allow Bostock to apply outside of Title VII.
The Department of Health and Human Services, which is the defendant in the litigation, did not respond to a request for comment.