In Neese
v. Beccera, (ND TX, Nov. 11, 2022), a Texas federal district court
granted declaratory relief concluding that neither Title IX nor Section 1557 of
the Affordable Care Act that incorporates Title IX's ban on sex discrimination
prohibit discrimination on the basis of sexual orientation and gender
identity. At issue is a Notice
and Guidance on Gender Affirming Care issued by the Department of
Health and Human Services in March 2022 which is challenged by two physicians
who make sex-specific medical decisions relevant to gender identity. The court
reasoned that the Supreme Court's Bostock decision that
interprets Title VII's prohibition of discrimination "because of" sex
does not automatically carry over to Title IX that prohibits discrimination
"on the basis of" sex. The court began its opinion as follows:
In his Bostock dissent, Justice Alito
foresaw how litigants would stretch the majority opinion like
an elastic blanket to cover categories, cases, and controversies expressly not
decided. Justice Alito warned: "The entire Federal Judiciary will be mired
for years in disputes about the reach of the Court's reasoning."...
And here we are....
The court reasoned in part:
Title IX presumes sexual dimorphism in section after
section, requiring equal treatment for each "sex."...
Defendants' reinterpretation of Title IX through the
Notification imperils the very opportunities for women Title IX was designed to
promote and protect -- categorically forcing biological women to compete
against biological men.
ADF issued a press release announcing
the decision.
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