Thursday, July 4, 2024

The "Nth" Flip Flop in HHS Transgender Law - A Post-Chevron Case Study


This is one of the strangest chains of decisions I've ever seen in Health & Human Services policy - yet another "flip flop" in HHS law and regulation regarding transgender healthcare.  I'll briefly summarize.

  • In March 2010, the Affordable Care Act passed.
  • Section 1557 bars healthcare sex discrimation, but does so by referring the reader to text found in the 1972 Title IX federal education act.   (No person shall, on the basis of sex, be excluded...be subject to discrimination...etc).
  • The Obama administration got around to writing regulations on this in 2016 (the summer Hilary Cinton was running for president).  They defined "sex discrimination" to include gay & transgender.  81 FR 31375 (5 18 2016).  
    • This received a federal court injunction, in Texas, in 2016 (Franciscan v Burwell).
  • The Trump administration (2017-2021) was prepared to let the proposed regulation expire unfinished in 2019.
    • However, the 2016 rule also included several pages establishing antibiotic stewardship programs.
    • In Summer 2019, the Trump administration extended the review period of the 2016 rule, and split apart the sex and antibiotic components.
    • The antibiotic stewardship components were finalized in early 2020.
  • Later in 2020, the Trump administration repealed the sex policy components (85 FR 37160, 6 19 2020, proposed 5 24 2019).
  • On June 15, 2020, Supreme Court ruled in Bostock that in Title VII (not Title IX), the term sex discrimination includes homosexual or transgender.
  • The Biden administration proposed, and later finalized, its enactment of ACA 1557, by determining or "re-determining" that in Title IX, sex refers to both homosexual and transgender.  (89 FR 37522, 5 6 2024).  This was to become active in 60 days, being 7 5 2024.)
  •   On July 3, 2024, Judge Luis Guirola of Soutern District of Mississippi, ruled that in Title IX (and therefore, by reference, in sectioni 1557 of ACA), "sexual" means male, female, and homosexual, but NOT transgender.   UPI here.   Court decision here.
    • The judge starts with the recent striking-down of the Chevron principal, that courts should defer to agencies in interpreting vague statutes.
    • The judge makes much of whether, in 1972, when writing the Title IX education act, Congress and dictionaries (p 15)and common usage intended the word "sex" [discrimination] to commonly include "transgender."  That is, much about textual originalism.
    • The judge includes an immediately-effective national injunction.
      • (I believe Biden HHS could go to the next-higher court to, first, repeal the injunction, then continue the case).
I am not a lawyer or a politician, but I believe the election comes into play, because a new Trump administration could reverse the regulation over a year or two (as occurred in 2020) but also could decline to oppose court rulings against the regulation, which have already occured, or decline to protest the injunction.

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(On the latter point.  Some years ago there was a legal action to "throw out" an old NCD banning coverage of gender surgery, and CMS handled it by declining to file in opposition to the action - sort of a pocket veto).

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The fact that Bostock included "homosexual and transgender," but, referred to Title VII and not Title IX, plays into Guirola's decision in ways that are over my head.

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Some extra links.  July 3, Fierce Healthcare, judge blocks rule.   April 29, Fierce Healthcare, administration restores nondiscrimination rule.  June 2020, Trump tosses nondiscrimination rule.    

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As a sidebar (separate link) see an AI discussion of the case, and a discussion of how the Bostock Title VII decision includes (sex, gay, transgender) while the new HHS court decision includes only (sex, gay).