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At issue is a recent move by the U.S. Department of Health and Human Services that added gender identity to its non-discrimination rules. On Tuesday, Paxton said the HHS rule threatens the constitutional rights of Texans. "I am disappointed in the Obama Administration’s lack of consideration for medical professionals who believe that engaging in such procedures or treatment violates their Hippocratic Oath, their conscience, or their personal religious beliefs, which are protected by the Constitution and federal law,” Paxton said in a statement.
The AG filed the lawsuit on behalf of a religious hospital system, an Illinois physician group, a Christian medical and dental association and four other states. The lawsuit comes one day after a federal judge in North Texas sided with Paxton by issuing a nationwide injunction against a rule the feds rolled out earlier this year that would require public school districts to allow trans students to use the bathroom that corresponds with their gender identity; districts that snubbed transgender-affirming policies could face punishment through the loss of federal funding. That same federal judge, Reed O'Connor, will preside over Paxton's newest lawsuit.
In May, HHS approved a final rule to the Affordable Care Act that prevents insurance companies and healthcare providers from discriminating against people on the basis of gender identity. Providers that ignore the new rule risk losing their federal funding, which in Texas amounts to $42.2 billion a year, according to Paxton.
Tuesday's lawsuit is the 13th Paxton has filed against the federal government. In the filing, Paxton basically argues that the definition of sex doesn't include gender identity. He paints a picture of the federal government lurking in hospitals, forcing doctors to conduct work that conflicts with their religious beliefs.
Paxton believes the rule will force doctors to provide gender reassignment surgery even if that conflicts with their religious belief. Furthermore, if that doctor referred a patient to someone else because of conscientious reasons, they would still violate HHS' rule, resulting in losing federal funds, he claims.
But, as HHS has already said, it didn't include a blanket exemption for religious freedom because other federal rules already protect the religious rights of physicians, including "provider conscience laws, the Religious Freedom Restoration Act (RFRA), provisions in the ACA related to abortion services, or regulations issued under the ACA related to preventive health services," HHS wrote in its explainer of the new rule. The HHS rule does not displace these.
Paxton also uses the lawsuit to object to gender reassignment procedures like a hysterectomy, mastectomy or hormone treatment. And he does it on the backs of one of the country's most vulnerable populations: trans kids. "On pain of significant financial liability, the Regulation forces doctors to perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individual's sex—including the sex of children," Paxton writes in the lawsuit. HHS is making providers who claimed gender reassignment procedures weren't medically necessary to reverse those policies.
However, the AG's biggest problem with HHS' rule is his belief that sex is limited to what's written on a birth certificate. Paxton claims HHS can't include gender identity in its definition of "sex" without an act of Congress. Paxton argues HHS violated administrative rules that require public notice and commenting periods. This is one reason why O'Connor issued a nationwide injunction against rules allowing trans students to use the bathroom that corresponds with their gender identity. In the case of the HHS rule, that did not happen (You can read the public comment and HHS responses here).
Mara Keisling, executive director of the National Center for Transgender Equality, says Paxton's lawsuit is a thinly-veiled attack on transgender people. "The ACA rule does not mandate what kind of care doctors can and cannot give. It bans discrimination," Keisling said. "It's there to make sure that transgender people can get the treatment we need without facing harassment — or worse."
Keisling also challenged Paxton's assertion that decades of settled precedent over the definition of "sex" exist. "Over a dozen federal courts have confirmed that the term 'sex' in federal non-discrimination laws, including the ACA, applies to gender identity," Keisling explained. "This applies not only to transition-related care, which is considered medically necessary by the vast majority of medical professionals, but also to getting care for other health issues, from colds to cancer. It simply requires that medical decisions be made based on medicine, not prejudice."
