Texas, Montana sue Biden administration over LGBTQ health protections

Texas and Montana have sued the Biden administration over a new rule banning state Medicaid programs from banning gender-affirming care.

The lawsuit from Texas Attorney General Ken Paxton (R) and Montana Attorney General Austin Knudsen (R), filed Monday, asks a federal court to strike down a sweeping final rule which aims to strengthen health care protections against discrimination against gays and transgender people.

“A sweeping new rule issued under the Affordable Care Act (ACA) will cause those who do not conform to the Biden Administration's gender ideology regime to lose all federal health care funds, including Medicaid and Medicare dollars,” the lawsuit says .

The lawsuit argues that the rule is an unconstitutional attempt to override state law, and that the ACA has never authorized the U.S. Department of Health and Human Services or any government agency to force facilities to perform gender-affirming treatments or to pay.

The complaint centers on Section 1557 of the ACA, which prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in certain health care programs and activities.

Section 1557 has been the subject of a wave of lawsuits over the past decade as advocacy groups and lawmakers have fought over how to interpret the policy.

The Obama-era rule interpreted sex discrimination protections to include gender identity and sex stereotyping (among other identities), but not sexual orientation. The Trump administration lifted these protections, but the Biden administration subsequently moved to restore and expand them by adding sexual orientation.

The Biden administration's final rule, released in late April, states that organizations that receive federal health care funding and health insurers that do business through government plans cannot refuse to provide gender-affirming health care services that would be provided to an individual for other purposes.

Furthermore, the rule categorically prohibited the exclusion of gender-affirming care.

For example, if a covered entity were to perform a hysterectomy for the purpose of treating uterine cancer, it must also be prepared to remove a healthy uterus to facilitate gender transition.

The Biden administration made clear as a rule that federal protections for religious freedom and conscience still apply. These protections say health care providers do not engage in discrimination if they refuse to provide abortion or other care if it conflicts with a “sincerely held belief.”

But the rule makes clear that Section 1557 preempts state laws that prohibit access to gender-affirming care.

“The rule will cause financial harm to Montana's medical system, as the state receives approximately $2 billion annually in federal financial assistance administered by HHS. This new rule imposes unlawful restrictions on that assistance, punishing Montana for attempting to protect its citizens from harmful medical procedures and for refusing to cover those procedures in its health plans,” Knudsen said in a statement.

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