After getting injunction against trans student guidelines, Texas AG targets transgender medical services
Texas and four other Republican-led states have filed yet another lawsuit seeking to roll back the Obama administration’s efforts to strengthen transgender rights, saying new federal nondiscrimination health rules could force doctors to act contrary to their medical judgment or religious beliefs.
The lawsuit, filed Tuesday, Aug. 23, is the second in recent months in which conservative states — led by Texas and its right-wing attorney general, Ken Paxton — have sued over federal efforts to defend transgender rights. On Sunday, Aug 21, U.S. District Judge Reed O’Connor in Fort Worth issued a temporary injunction, in connection with an earlier lawsuit, that halted enactment of a set of guidelines issued by the U.S. Department of Justice and the U.S. Department of Education on how school districts should interact with transgender students.
Those guidelines, which included allowing those students to use bathrooms consistent with their gender identity, were not set-in-stone rules, administration officials said, but were instead guidelines that had been requested by many school districts. The administration has said, however, that prohibitions against sex-based discrimination included in Title IX include prohibitions against gender identity-based discrimination, and that schools that allow such discrimination could lose federal funds.
The new HHS rules affect health care providers that receive federal funds.
The newest lawsuit is asking Judge O’Connor to also block new regulations, issued by the U.S. Department of Health and Human Services, that ban gender identity-based discrimination by doctors, hospitals and insurers, based on the Affordable Care Act’s prohibitions on sex-based discrimination.
The latest lawsuit contends that the rules, finalized in May, could force doctors to help patients with gender transition contrary to the physicians’ religious beliefs or medical judgment.
A press release from Paxton’s office on Tuesday announcing the lawsuit called the new regulations “regulatory overreach … invading the coffers of Texas, as well as violating the medical judgment and conscience rights of doctors and health care professionals across the country.”
The press release accuses the Obama administration of “trying to redefine the law,” and claims the new rules require taxpayers “to fund all treatments designed to transition to a different sex” and “forces health care workers, including physicians, to provide controversial services. Under the new rule, a physician that believes that certain treatments are not in a patient’s best interests may be in violation of federal law. And a physician that, for religious or conscientious reasons cannot perform a particular procedure, chooses to instead refer a patient to another health care provider may also be determined to be in violation of this new rule.”
But transgender rights advocates called that a far-fetched hypothetical, saying a person would not approach a doctor who lacked suitable experience and expertise.
Jillian Weiss, executive director of the Transgender Legal Defense and Education Fund, who called the new rules groundbreaking, disputed Paxton’s interpretation.
“The only thing a doctor is obliged to do is treat all patients, including trans patients, with dignity and respect and to make treatment decisions free from bias,” Weiss said. “If a doctor has a sound, evidence-based, medical reason to delay transition care for a specific patient, that would be respected under the regulations.”
Trans rights advocates also noted that 10 states and Washington, D.C., already require private insurers to cover transgender health care, while six states plus D.C. cover such services through their Medicaid programs.
Joining Texas in the lawsuit are Wisconsin, Kentucky, Nebraska and Kansas, along with the Christian Medical and Dental Association and Franciscan Alliance, an Indiana-based network of religious hospitals.
Weiss is not alone in her condemnation of the lawsuit, which Paxton in his press release proudly noted is the 13th lawsuit he has filed against the Obama administration since taking office in January 2015. Advocates across the progressive spectrum have spoken out against the Texas AG’s latest assault on transgender rights.
Chuck Smith, CEO of Equality Texas, issued this statement Tuesday after Paxton announced the lawsuit: “Attorney General Ken Paxton continues his assault on the very existence of an estimated 1.4 million Americans who are transgender. Paxton is now seeking to deny transgender people access to competent medical care [and he] continues to waste millions of dollars filing lawsuits against the federal government and discriminating against his fellow taxpayers.
The attorney general needs to stop this assault against an already marginalized population and stop wasting taxpayer money.”
Rebecca L. Robertson, legal and policy director for the ACLU of Texas, noted that the new lawsuit was announced while Texas leaders were still “patt[ing] themselves on the back for convincing a federal court that transgender schoolchildren should be excluded from the protections of Title IX.”
She added, “we don’t know what else the state has in store, but the people of Texas will not stand idly by and let the state make transgender Texans into second-class citizens with no legal recourse when they face stigma and bias. Texas is better than this. This is not who we are.”
And Nancy Zirkin, executive vice president of The Leadership Conference on Civil and Human Rights, issued a statement suggesting that the latest lawsuit was intentionally filed in the same court that had just issued the injunction in the case involving the schools guidelines.
“Shopping around for right-wing judges willing to block the enforcement of our nation’s civil rights laws is an abuse of the judicial system,” Zirkin said.
An article written by John Council and published Wednesday, Aug. 24, on Law.com, says that O’Connor’s “handling of the bathroom case was no accident.” The article notes that O’Connor is a former aide to the Senate Judiciary Committee appointed to the bench by President George W. Bush in 2007. He previously worked with both the Tarrant County prosecutor’s office and with the U.S. attorney’s office in Fort Worth, and was an attorney for Texas U.S. Sen. John Cornyn.
After being appointed to the bench, O’Connor was assigned the docket for the Wichita Falls Division, but later made it known that he was willing to try interesting civil cases when appropriate, according to Council’s article. Council also says Paxton took his suit on the educational guidelines to O’Connor’s court because he knew that there he would have “a sympathetic judge,” since O’Connor had already ruled in Paxton’s favor once in a suit trying to derail LGBT rights. In 2015, O’Connor was the judge who granted Paxton’s request not to extend family and medical leave benefits to same-sex couples, although Paxton dropped that case after the U.S. Supreme Court ruling last June on marriage equality.
Jay Brown, communications director for the Human Rights Campaign said Paxton’s “continued attacks on transgender Americans are politically motivated, designed to intimidate, and simply beyond the pale. After months of demonizing and targeting transgender students, it seems he has decided that all transgender people must be the target of his machinations. We strongly oppose Paxton’s harmful lawsuit, and the courts should see if for what it is — a shameful, cheap, political attack.”
Paul J. Weber with the Associated Press contributed to this report.
This article appeared in the Dallas Voice print edition August 26, 2016.