Missouri Leads Seven States Challenging Health Care Protections for Transgender Americans • Florida Phoenix

Missouri Attorney General Andrew Bailey is leading a coalition of seven states challenging a Biden administration rule that would lift state restrictions on gender-affirming care.

The lawsuit, filed Wednesday in the U.S. District Court for the Eastern District of Missouri, seeks to block the regulations and prevent the federal government from enforcing similar measures.

The rule is intended to protect part of the Affordable Care Act, which prevents health care providers that 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 set to take effect later. But another coalition of attorneys general succeeded in blocking its implementation just two days earlier. The judge in that case cited the U.S. Supreme Court’s recent decision to overturn the “Chevron Deference,” a precedent that gave federal agencies rulemaking authority when the law is unclear.

Bailey, joined by attorneys general from Utah, North Dakota, South Dakota, Iowa, Idaho and Arkansas, argues that the rule violates 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 medical transition treatments through Medicaid and CHIP.

“…states will be unable to enforce these duly enacted laws and long-standing policies without running afoul of the Rule,” the attorneys general wrote in the lawsuit.

The American College of Pediatricians is joining 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 the practice of ‘gender transition,’ and do not facilitate or speak in ways that affirm its legitimacy,” the attorneys general wrote.

Doctors complain

The lawsuit alleges that the organization’s pediatricians would “suffer significant financial harm if they lost their eligibility to participate in federal health care programs such as Medicare, Medicaid and CHIP.”

A Utah pediatrician is quoted in the lawsuit as saying he “will not censor his views on the transition efforts if the rule goes into effect.”

The Utah pediatrician predicts he will not comply with the rule and “faces the prospect of no longer being able to care for his patients, being fired from his job and no longer being able to practice medicine in most settings,” the attorneys general wrote.

The rule violates physicians’ freedom of assembly, the lawsuit says, “by forcing them to participate in facilities, programs, groups, and other health care-related activities that conflict with their views and that convey messages with which they disagree.”

The lawsuit argues that the rule “coerces the expression of ACPeds members.”

“By forcing ACPeds members to tell patients directly, on their walls and on their websites, that they do not discriminate based on gender identity, the rule forces ACPeds members to speak falsely and forces ACPeds members to fatally undermine their communication of their own medical ethical standards,” the report said.

Aside from the constitutionality issues, the attorneys general argue that the rule goes beyond Congress’ authority.

Bostock Pronunciation

The rule interprets gender identity as protected by including both gender dysphoria and disability and interprets sex discrimination as gender identity. The attorneys general disagree with this request.

Key to the case is the justices’ interpretation of the 2020 U.S. Supreme Court case Bostock v. Clayton County, in which a majority of justices ruled that gender identity is protected under Title VII, which concerns employment discrimination.

The rule relies on the interpretation of some courts that extend the Bostock decision to Title IX and the Affordable Care Act, according to the Federal Register posting. But attorneys general cite decisions by judges in red states that do not allow Bostock to be applied outside of Title VII.

The Ministry of Health and Welfare, the defendant in the lawsuit, did not respond to a request for comment.

This story first appeared in the Missouri Independent, a Phoenix affiliate of the nonprofit States Newsroom.

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