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.
