The guidance is titled “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity.”
In the same decision, Kacsmaryk also vacated the U.S. Health and Human Services (HHS) Office of Civil Rights (OCR) guidance titled “Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy.”
The decision comes after an official complaint was filed by Texas Attorney General Ken Paxton alleging that both instances of rulemaking were unlawful. Originally, the lawsuit only mentions the EEOC guidance, but was amended to include HHS.
The first guidance uses the 2020 landmark Supreme Court case Bostock v. Clayton County as its legal basis. Bostock established that Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against an individual’s sex, applies to an individual’s gender identity and sexual orientation.
EEOC claims in its guidance that the Bostock ruling goes further, regulating termination to protect conduct related to gender identity and sexual orientation.
Under this precedent, EEOC affirms that employers cannot prevent people from dressing in accordance with their gender identity, cannot bar employees from using the bathroom of their choice, and cannot prohibit other conduct related to an individual’s sexual orientation or gender identity.
The HHS guidance asserts that “federally-funded covered entities restricting an individual’s ability to receive medically necessary care, including gender-affirming care, from their health care provider solely on the basis of their sex assigned at birth or gender identity likely violates Section 1557.”
Section 1557 refers to the Affordable Care Act’s provision against discrimination based on race, color, national origin, age, disability, or sex in health programs or activities.
“Restricting an individual’s ability to receive medically necessary care, including gender-affirming care, from their health care provider solely on the basis of their sex assigned at birth or gender identity likely violates Section 1557,” HHS argued.
Kacsmaryk rejected the EEOC’s argument, writing, “Defendants misread Bostock and overstate Supreme Court and Title VII jurisprudence to conflate protected class status with all correlated conduct – in direct contravention of Justice Gorsuch’s majority opinion.”
The court also rejected HHS’ rationale, stating, “[D]efendants do not explain how HHS and OCR… arrived at the [guidance’s] conclusion that ‘denial of… care solely on the basis of [a patient’s] sex assigned at birth or gender identity likely violates section 1557.”
“Because defendants appear to misstate the law and do not detail what went into their decision-making, the court finds the March 2 Guidance arbitrary and capricious” the judge concluded.
This instance of rulemaking was issued in direct response to Gov. Greg Abbott’s directive to the Texas Department of Family and Protective Services (DFPS) to investigate the use of puberty blockers and other gender transition procedures for minors as child abuse.
Issued with this directive was an official opinion written by Paxton arguing, “Based on the analysis herein, each of the ‘sex change’ procedures and treatments enumerated above [puberty blockers and genital surgeries], when performed on children, can legally constitute child abuse under several provisions of chapter 261 of the Texas Family Code.”
Responding to the decision, Paxton released a statement reading, “The court decision is not only a win for the rule of law, but for the safety and protection of Texas children.”
“The Biden Administration’s attempts to radicalize federal law to track its woke political beliefs are beyond dangerous,” he concluded. “I will continue to push back against these unlawful attempts to use federal agencies to normalize extremist positions that put millions of Texans at risk.”
A copy of the official decision is included below.
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Hudson Callender is a reporter for The Texan and a lifelong resident of San Antonio, Texas. Hudson recently graduated cum laude from Trinity University with majors in Economics and Political Science, and loves to study ancient history. Hudson is also an avid mountaineer, backpacker, and paddler, often leading trips to remote wilderness areas. Outside of his love for nature, history, and Lone Star beer, Hudson spends his weekends arguing with his friends about football, and will always stick up for the Baylor Bears, Dallas Cowboys, and San Antonio Spurs.