Case History: Sex and Gender
In 2016, eight states banded together with several private, religious health-care providers to challenge the applicability of the Rule, arguing that the protections of section 1557 did not include protections for transgendered individuals. The Texas court, in its ruling on the states’ motion for preliminary injunction, sided squarely against trans people. Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016). In denying Chevron deference to the HHS’s interpretation of the text of section 1557, the court held that “the meaning of sex in Title IX unambiguously refers to the biological and anatomical differences between male and female students as determined at their birth.” Id. at 687 (internal quotations omitted). Because the Rule defined sex not only as biological differences but also as termination of pregnancy and gender identity, the court held that the HHS revised the definition of sex as incorporated into Title IX. Id. For the Texas court, it was clear that on the basis of sex, as originally written in 1972 and then reincorporated into the ACA, prohibited discrimination on the basis of a “binary definition of sex”— that is, biologically male or female. Id. at 668 (internal quotations omitted). The court went on to discuss other issues, including whether prohibiting discrimination on the basis of gender identity violated the Religious Freedom Restoration Act, and concluded by instituting a nationwide injunction on the implementation of the Rule.
One year later, a similar issue arose in California, but the court in that case concluded that the application of the Rule was immaterial because section 1557 itself prohibited such gender identity discrimination. Prescott v. Rady Children’s Hosp.—San Diego, 265 F. Supp. 3d 1090 (S.D. Cal. 2017). In coming to its conclusion, the court echoed the Texas court, noting that the protections in section 1557 were based on existing statutes, including Title IX. However, the court went on to cite U.S. Supreme Court cases that held that federal courts look to Title VII cases for guidance on Title IX claims. Id. at 1098 (citing Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60 (1992) and others). Using Title VII precedent, the court noted that sex has routinely been defined as encompassing both sex—that is, the dichotomy of male and female adopted by the Texas court—and gender. Id. (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). The California court also cited cases from the First, Sixth, Seventh, Ninth, and Eleventh Circuits to support the claim that discrimination against transgendered individuals is prohibited by Title VII and Title IX and, consequently, by the ACA.
Similarly, in 2017, the Seventh Circuit ruled in Whitaker v. Kenosha Unified School District that discrimination based on gender identity fell under the term sex as used in Title VII and Title IX. 858 F.3d 1034 (7th Cir. 2017). Although Whitaker did not involve the ACA or the application of the HHS Rule, it relied on substantial Title VII and Title IX cases to hold that sex discrimination includes sex stereotyping—that is, “the disparate treatment of men and women resulting from sex stereotypes.” Id. at 1047 (quoting Price Waterhouse, 490 U.S. at 251). The court in Whitaker exhaustively provided holdings from district courts and circuit courts from across the country that underscored the right of a trans person to bring a Title VII or Title IX claim for discrimination based on sex stereotyping. Id. at 1048–49 (listing cases).
Because section 1557 of the ACA explicitly incorporates the protections of Title IX, the ruling in Whitaker is instructive for future discrimination claims under the ACA. Unfortunately, however, the exceedingly clear rulings from the Seventh Circuit and a variety of district courts across the country have not stemmed attempts to discriminate on the basis of sex and gender identity.
On the Basis of Sex and Recent Efforts to Discriminate
Recently, two transgendered women in Wisconsin brought suit against the State of Wisconsin Employee Trust Fund and the Group Insurance Board—the institutions responsible for dictating coverage for state insurance—for excluding coverage of transition-related care from the state insurance. Boyden v. Conlin, 341 F. Supp. 3d (W.D. Wis. 2018); see also Flack v. Wis. Dep’t of Health Servs., 328 F. Supp. 3d 931 (W.D. Wis. 2018).
In Boyden v. Conlin, the plaintiffs brought Title VII and ACA section 1557 claims against the state for openly structuring the state insurance coverage in a discriminatory manner that excluded transition-related coverage. In fact, the plaintiffs complained that transition-related care was originally covered by the state insurance as mandated by the ACA but that the defendants made a politically motivated decision to exclude such coverage after the Texas court issued a national injunction against the HHS rule in Franciscan Alliance, Inc. v. Burwell.
For its part, and despite the Seventh Circuit ruling in Whitaker, the state argued, inter alia, that Title VII allows claims for sex discrimination and not for “transgender status.” Boyden, No. 17-CV-264-wcm (Dkt. No. 81). Similarly, the state claimed that section 1557, through Title IX, only protects against discrimination on the basis of sex as defined dichotomously by the Texas court. Interestingly, the state also attempted to justify the discriminatory insurance exclusion through the Spending Clause in Article I of the Constitution, arguing that Wisconsin accepted federal funding for health care without knowing that the funding would include antidiscrimination provisions. Moreover, the state held that the exclusion is not facially discriminatory because nontransgendered people (cisgender people) are not able to receive the same sorts of treatments for psychological distress. As such, the state argued, the insurance exclusion prohibiting coverage for transitional-related care protects against discrimination of cisgender people. Id.
In October 2018, a unanimous jury awarded both plaintiffs in the Boyden case almost a million dollars in damages for the constitutional harm they suffered. The state did not appeal the verdict.
Transgender Individuals and the Future of Health-Care Discrimination
The mere existence of the insurance exclusion in Wisconsin—as well as the multiple cases challenging it—makes it clear that the application of Title IX and section 1557 of the ACA vis-à-vis transgender individuals is not a settled matter. Despite rulings in the controlling 7th Circuit to the contrary, the State of Wisconsin is maintaining that transgender individuals are not protected by Title IX or section 1557 of the ACA. The implication is clear: Regardless of whether it believes the insurance exclusion to be discriminatory, the state believes that it is permissible under federal and state law to discriminate against transgender people. Unsurprisingly, Wisconsin is not alone in this view: Trans-related discrimination cases have been heard, and favorably decided, in the 1st, 6th, 7th, and 11th Circuits, as well as in district courts in Minnesota, Florida, Massachusetts, Virginia, Maryland, Washington, Pennsylvania, California, Illinois, Nebraska, Colorado, Kentucky, Connecticut, Arizona, Arkansas, Oklahoma, Texas, New York, and the District of Columbia. These cases have protected against trans-related discrimination through a variety of laws, including Title XII of the Civil Rights Act, Title IX of the Educations Amendments Act, the Equal Protection Clause of the U.S. Constitution, the Equal Credit Opportunity Act, the Gender Motivated Violence Act, and the Health Care Rights Act. It seems highly likely, therefore, that this issue will remain active in the courts unless and until this issue is taken up by the Supreme Court. In the meantime, trans advocates across the country have been attempting to protect the trans community through the consistent implementation of Title IX and Title VII and section 1557 of the ACA.
Litigators getting involved in trans-health cases not only must understand the statutory history and relevant cases prohibiting discrimination against the trans community but also must be aware of inevitable future opinions on the subject.