Neese v. Becerra

In 2021, the U.S. Department of Health and Human Services issued guidance about discrimination based on sexual orientation and gender identity. Two Texas-based doctors filed a lawsuit challenging that guidance, arguing that healthcare providers can lawfully discriminate against LGBTQ patients, so long as they equally mistreat both “biological men” and “biological women.” Public Justice filed an amicus brief in support of a federal agency in Neese v. Becerra, a case about important protections for LGBTQ medical patients. The case has broad implications for the scope of federal laws prohibiting sex discrimination in healthcare and education.

In 2020, the Supreme Court held in Bostock v. Clayton County that Title VII, a federal law that prohibits sex discrimination in employment, protects workers from discrimination based on sexual orientation and gender identity. In 2021, the U.S. Department of Education issued guidance explaining that Bostock’s holding also applies to Title IX, a federal civil rights law prohibiting sex discrimination in education. This means that Title IX protects against discrimination in schools based on sexual orientation and gender identity.

Around the same time, another federal agency, the U.S. Department of Health and Human Services (HHS), issued guidance explaining that the prohibition on sex discrimination in Section 1557 of the Affordable Care Act (ACA) also includes discrimination based on sexual orientation and gender identity. Because Section 1557 of the ACA incorporates Title IX’s prohibition on sex discrimination with respect to federally funded healthcare providers, the guidance ensured that Section 1557 was consistent with the Department of Education’s most current interpretations of Title IX.

In August 2021, two Texas-based doctors filed a lawsuit challenging HHS’s guidance in a federal district court in Texas. The doctors argued that healthcare providers can lawfully discriminate against LGBTQ patients, so long as they equally mistreat both “biological men” and “biological women.” For example, the doctors argued that if they refused to provide drugs used to prevent HIV to both gay men and lesbian women, then that would not be discrimination based on sex because they were treating individuals designated “male” and “female” at birth the same way. The doctors made those arguments even though they are inconsistent with Bostock.

In November 2022, a judge ruled in favor of the plaintiffs. He held that because of minor differences between Title IX and Title VII, Bostock’s holding did not apply to Title IX, and so did not apply to Section 1557. The HHS appealed to the U.S. Court of Appeals for the Fifth Circuit.

On April 3, 2023, Public Justice filed an amicus brief in support of the HHS. The brief explained why the district court’s analysis of Title IX was incorrect and discussed the stakes of its narrow reading of Title IX for students, including parenting students, students discriminated against because of a combination of their race and sex, and LGBTQ students. We were joined by A Better Balance, the Clearinghouse on Women’s Issues, End Rape on Campus, Feminist Majority Foundation, Legal Momentum, the National Center for Youth Law, the National Women’s Law Center, and Women’s Law Project.