On April 3, 2023, NWLC joined an amicus brief to the Fifth Circuit led by Public Justice in Neese v. Becerra to support the U.S. Department of Health and Human Services’ (HHS) interpretation that Section 1557 of the Affordable Care Act prohibits discrimination based on gender identity and sexual orientation. Section 1557 is the first federal law to broadly prohibit sex discrimination in health care, and it incorporates Title IX’s definition of what constitutes prohibited sex discrimination.

In June 2020, the Supreme Court held in Bostock v. Clayton County that, under Title VII, discrimination based on sexual orientation or gender identity is always discrimination based on sex. The Biden Administration subsequently issued guidance explaining that the Court’s reasoning about Title VII’s prohibition on sex discrimination in the workplace applies with equal force to Title IX’s prohibition on sex discrimination in education and Section 1557’s prohibition on sex discrimination in health care.

Two doctors in Texas challenged the Section 1557 guidance, distorting the reasoning in Bostock and the plain language of Title IX and Section 1557 to argue that Bostock should be limited to the employment context of Title VII. They brought the case before Judge Kacsmaryk, an extremist federal judge in Texas (the same judge who may soon withdraw FDA approval of mifepristone, a safe and effective drug and one of two medications most commonly used in medication abortion). Judge Kacsmaryk, who has a long record of opposing LGBTQ rights and access to abortion, predictably sided with the plaintiffs despite the lack of any principled basis for distinguishing Title IX and Section 1557 from Title VII in this regard.

Our amicus brief explains that HHS’ guidance correctly interpreted Section 1557, Title IX, and the Supreme Court’s decision in Bostock and details the harm that Plaintiffs’ narrow and exclusionary interpretation of Title IX could cause students, especially those who face sex discrimination and discrimination based on other characteristics such as their race or parenting status.

Because Bostock’s reasoning clearly applies to both Title IX and Section 1557, our amicus brief urges the Fifth Circuit to vacate the district court’s ruling and allow HHS to enforce its guidance.