Affordable Gender Affirming Care Act? Republican AGs sue feds for redefining sex in healthcare

More than 30 years after Salt-N-Pepa implored Americans to "talk about sex, baby," the all-female hip-hop trio has overwhelmingly succeeded in the federal courts.

Republican attorneys general filed another lawsuit challenging a Biden administration nondiscrimination regulation that could override their state laws by rendering "sex" as encompassing gender identity, this time in taxpayer-funded healthcare settings.

Earlier this spring, four configurations of GOP AGs filed lawsuits against the Department of Education's Title IX regulation, which creates a presumption of male access to female locker rooms, restrooms and possibly athletic competition by equating gender identity with sex.

"Purporting to implement the Affordable Care Act’s prohibition on 'sex' discrimination," the Department of Health and Human Services regulation "threatens States and healthcare providers with massive penalties for failing to align their policies, coverage decisions, and even medical care with patients’ subjective gender identities rather than sex," the new suit says.

It would "impose a new national standard of care for addressing gender dysphoria" that risks the health of patients by potentially subjecting doctors to federal investigations for "[e]ven inquiring into a person’s medical history and biological sex characteristics," which is often crucial to assessing "the proper approach to and scope of medical treatment," the 15 AGs claim.

The regulation violates the Administrative Procedure Act by unlawfully defining sex, regulating medical practice, using spending authority without Congress speaking "unambiguously" and failing to give a "reasoned explanation" for changing the meaning of sex, the suit says. It asks for a stay of the July 5 effective date and a preliminary injunction.

Much of the suit details the poor evidence base for so-called gender affirming care – social recognition as the opposite sex, puberty blockers, cross-sex hormones, and surgical removal of healthy breasts and genitals – and questions the scientific credentials of its leading adherents.

The feds and American medical institutions have repeatedly minimized the likelihood of serious adverse events from gender affirming care in the face of contrary evidence, despite the FDA ordering drugmakers two years ago to add warnings to blockers.

Writing in Elsevier's Journal of Minimally Invasive Gynecology last week, Medical College of Wisconsin researchers found that among women 18-55 who had gender-affirming "minimally invasive" hysterectomies over eight years, those already taking testosterone suffered "increased risk of intraoperative perineal lacerations requiring repair," and more reported vaginal bleeding.

The feds are behind the curve of Europe, where several countries have sharply pulled back on gender affirming care – even treating schoolchildren as the opposite sex in language and dress – citing weak evidence of benefit and possibility of greater harm.

A year ago, England's National Health Service said it would stop prescribing puberty blockers outside of clinical trials and assess children already on medication, while emphasizing that gender dysphoria diagnoses cannot be based on children flouting sex stereotypes.

Prime Minister Rishi Sunak's Department of Education discourages social transitioning.

Australia, on the other hand, may define the legal boundaries of "woman" in its discrimination law through a closely watched lawsuit, Tickle v. Giggle. It's the first federal case down under about gender identity discrimination, The Guardian reported during the April trial.

Roxanne Tickle sued the women-only social networking app Giggle, whose barrister said it was founded to protect women from "harassment, mansplaining ... stalking, [and] aggression," because it prohibited the male who identifies as a woman from joining.

It's a "fact" that Tickle is a woman, the plaintiff's barrister told the court, by changing gender markers on government documents. 

Tickle is "living as a female" by taking hormones, "having gender affirmation surgery and undergoing social transitions," spending "time and money on her wardrobe and removing her facial hair … using female changing rooms and playing in a female hockey team," The Guardian paraphrased the barrister.

Giggle's defense is supported by the Alliance Defending Freedom International, which laid out the app's legal argument on the eve of trial.

Led by Mississippi's Lynn Fitch and Tennessee's Jonathan Skrmetti, respectively, the new federal suit's other state plaintiffs are Alabama, Georgia, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Virginia and West Virginia.

Hospitals, clinics and doctors stand to lose "billions … designed to assist low-income individuals" and "risk exposure to civil liability through private lawsuits," the office of Indiana AG Todd Rokita said in a press release Wednesday.

The roots of the new fight go back to the end of the Obama administration, when HHS first read gender identity into "sex" in the Title IX-reliant Section 1557 of the ACA. 

President George W. Bush-nominated U.S. District Judge Reed O'Connor ruled in 2019 the conflation of gender identity with sex violated the APA and Religious Freedom Restoration Act.

President Donald Trump-nominated Judge Matthew Kacsmaryk then blocked guidance issued by HHS in 2022 in "direct response" to Texas GOP Gov. Greg Abbott's directions to the Department of Family and Protective Services to "investigate incidents of sex change procedures performed on minors." 

The feds claimed Section 1557 and two disability laws prohibit restrictions on "medically necessary care, including gender-affirming care," based on sex, gender identity or gender dysphoria, but didn't bother explaining their reasoning and "appear to misstate the law," making the guidance "arbitrary and capricious" to Kacsmaryk.

Last fall HHS appeared to surreptitiously imposed a preferred-pronoun mandate through an unlisted YouTube video sent to employees, citing National Coming Out Day.

The regulation contradicts "limitations on providing gender-dysphoria interventions to minors" in the plaintiff states, requiring doctors to provide "sterilizing hormones and sex-change surgeries" to both adults and children if they provide "medication or surgeries to treat certain physical maladies" unrelated to gender identity, the suit says.

States would even have to use taxpayer money to pay for "sex-transition procedures under any state-operated plan that receives federal funding," including state Medicaid programs, Children’s Health Insurance Programs and health plans for state employees, despite their own laws that "exclude insurance coverage for risky and costly gender-transition surgeries."

They "could not have foreseen that the Affordable Care Act’s nondiscrimination provision would be wielded in such a way when they accepted these federal dollars from HHS and built extensive health programs – with annual budgets in the billions – in reliance on that funding," according to the AGs.

Given its reliance on Title IX, whose "text and structure confirm its biological-binary understanding of sex" and regulations specify it applies to "both sexes," Section 1557 cannot purport to cover gender identity, the suit says.

It noted that “no federal court or agency had interpreted Title IX" that way when the ACA was passed in 2010, and Congress specifically protected gender identity in a hate-crimes law the same year.

Section 1557 itself explicitly exempts "transsexualism" and “gender identity disorder[s]” that don't stem from "physical impairments," the AGs said.