A Federal District Court Held that Title IX Anti-Discrimination Protections Do Not Cover Sexual Orientation or Gender Identity

A Federal District Court Held that Title IX Anti-Discrimination Protections Do Not Cover Sexual Orientation or Gender Identity: Neese v. Becerra, 2:21-CV-163-Z (N.D. Tx).

The Affordable Care Act (more commonly known as Obama Care) prohibits discrimination “on the basis of sex” when providing health care services.  In 2021, the Department of Health and Human Services (“HHS”) interpreted the phrase “on the basis of sex” as prohibiting discrimination on the basis of sexual orientation and gender identity.  The Plaintiffs in Neese challenged HHS’ interpretation as inconsistent with the relevant statutes and the district court agreed.

The Plaintiffs’ claimed, according to the decision, that HHS’ interpretation would, among other things, prevent them from refusing to provide gender transition procedures that they believed were medically inappropriate and medically unethical.  The issue in the case was not whether gender transition procedures on minors or adults were appropriate.  Instead, the court addressed whether the Affordable Care Act’s prohibiting discrimination “on the basis of sex” covered sexual orientation and gender identity discrimination.

At this point, you are probably wondering why the title of this post mentions Title IX, which addresses discrimination in schools, when the Plaintiffs in Neese were challenging a regulation from HHS that applied to the healthcare sector.  The reason is that the Affordable Care Act expressly adopted the anti-discrimination provision contained in Title IX.

The court held that “[a]s written and commonly construed, Title IX operates in binary terms – male and female – when it references “on the basis of sex.”  Provisions contained in Title IX expressly allow colleges and schools, for example, to offer separate housing for males and females, separated bathrooms, separated showers, separated locker rooms, and sports teams based on biological sex.  None of these provisions would make sense, if the word “sex” in Title IX covered sexual orientation and gender identity.  The court put it as follows: “[i]f ‘on the basis of sex’ included ‘sexual orientation’ and ‘gender identity,’ as Defendants envision, Title IX and its regulations would be nonsensical.”

While Neese has direct application to health care providers, it also applies to schools and colleges.  Under cases such as Neese, schools and colleges cannot argue that they are compelled by Title IX to allow biological males to compete on women’s teams, or to use women’s locker rooms or rest rooms.  Cases like Neese also leaves the door open to potential claims that allowing biological males to compete on women’s teams could itself violate Title IX.

The decision in Neese is currently on appeal.  Federal appellate courts have reached different conclusions on whether Title IX’s “on the basis of sex” language includes sexual orientation and gender identity.  This issue will continue to work its way through the courts, and at some point the issue will probably get resolved by the United States Supreme Court.