By DEACON MIKE MANNO, JD
In the legal wars to make transgenderism mainstream, conservatives received a couple of legal setbacks recently when two federal judges blocked conservative-backed initiatives from taking effect. In Idaho, Judge David Nye temporarily blocked a state law that prohibits transgender girls — boys who are switching — to compete in girls’ and women’s sports.
And in New York, Judge Frederick Block similarly blocked the Trump administration’s new HHS rules which protected doctors and hospitals from being forced to provide transgender surgery, and confine the definition of “sex” to exclude gender identity. In his ruling the judge cited the recently decided Supreme Court case which included gender identity within the definition of sex in employment discrimination cases.
In the second case HHS rules have been contested since the Obama administration tried to redefined sex discrimination to include abortion and gender identity as part of the regulations implementing the Patient Protection and Affordable Care Act — Obamacare. Under those rules, adopted in 2016, physicians were required to recognize sex-change operations as medical care and could be penalized for failure to comply.
Naturally those rules provoked a legal challenge and a federal court injunction delayed their implementation late that year. The incoming Trump administration allowed the Obama rules to die and earlier this year proposed new rules without Obama’s expanded interpretation of sex discrimination.
HHS currently argues that the old 2016 rules had “created a massive new liability for thousands of healthcare professionals unless they cast aside their medical judgment and perform controversial and even harmful medical transition procedures.”
But in his order the judge said the Trump rules must be considered in light of this year’s Supreme Court ruling in Bostock v. Clayton in which the court adopted the more expansive view of sex in the area of employment law.
In reference to the proposed 2016 Obama rules the court said: “The stated purpose of the 2016 Rules was to ‘reflect the current state of nondiscrimination law,’ and HHS concluded that its definition of ‘on the basis of sex’ was consistent with ‘existing regulation and previous federal agencies’ and courts’ interpretations that discrimination on the basis of sex includes discrimination on the basis of gender identity and sex stereotyping.”
The judge noted that Bostock found that the word “sex” only referred to the distinction between men and women, but held that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
“It is clear from the preamble to the 2020 Rules that a central reason for HHS’s action was a fundamental disagreement as to whether Title IX…prohibited discrimination based on gender identity and sex stereotyping. HHS took a position on that issue, as it was entitled to do, but that position was effectively rejected by the Supreme Court [in Bostock],” the judge wrote.
Didn’t we warn you that liberal judges would expand the Bostock employment decision into other areas such as healthcare and education? It’s happening.
In the first case mentioned above, Idaho had adopted a statute which was signed into law last March, the Fairness in Women’s Sports Act, which limited participation in female sports to biological females. Interestingly the law contained no reverse prohibition which would have limited to male teams to only biological males. That omission was not overlooked by the court.
The suit was brought by a female transgender cross-country runner who wants to try out for the Boise State cross-country team and a high school junior who wishes to play soccer who also argues that the law violates her privacy by subjecting her to invasive medical testing to prove her female status.
Part of the problem, according to the judge, was: “This categorical bar to girls and women who are transgender stands in stark contrast to the policies of elite athletic bodies that regulate sports both nationally and globally — including the National Collegiate Athletic Association (NCAA) and the International Olympic Committee (IOC) — which allow transgender women to participate on female sports teams once certain specific criteria are met.”
Prior to the passage of the law, the Idaho High School Athletic Association allowed transgender girls to compete on girls’ teams “after completing one year of hormone therapy suppressing testosterone under the care of a physician for the purpose of gender transition.” Which the court found similar to the NCAA policy on transgender women attending member colleges.
One of the concerns that apparently bothered the judge was the medical clearance needed for a transgender athlete to meet the law’s guidelines. “There is no legitimate reason to seek to bar all trans girls and women from girls’ and women’s sport, or to require students whose sex is challenged to prove their eligibility in such intrusive detail,” claimed one of the law’s opponents.
The court also found: “The act mandates, ‘athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.’ The act does not contain comparable limitation for any individuals — whether transgender or cisgender — who wish to participate on a team designated for males.”
Thus the court wrote:
“Similarly, the act on its face discriminates between cisgender [identity conforms to birth sex] athletes, who may compete on athletic teams consistent with their gender identity, and transgender women athletes, who may not compete on athletic teams consistent with their gender identity. Hence, while the physiological differences the defendants suggest support the categorical bar on transgender women’s participation in women’s sports may justify the act, they do not overcome the inescapable conclusion that the act discriminates on the basis of transgender status.”
The court also found that the law was passed by a legislature that was in fear of something happening elsewhere that had never happened in Idaho. It criticized the state for its reliance on reports of real girls losing to trans-girls who are biologically faster and stronger due to their being born male. “Rather than presenting empirical evidence that transgender inclusion will hinder sex equality in sports or athletic opportunities for women, both the act itself and proponents rely exclusively on three transgender athletes who have competed successfully in women’s sports,” Judge Nye wrote.
Besides, he concluded, before the enactment of the complained-of law, Idaho’s rules governing trans-athletics was similar to the NCAA rules, under which the trans-girls would have no advantage after receiving hormone therapy to suppress their testosterone.
“In the absence of any empirical evidence that sex inequality or access to athletic opportunities are threatened by transgender women athletes in Idaho, the act’s categorical bar against transgender women athletes’ participation appears unrelated to the interests the act purportedly advances,” he added.
Again, interestingly this court made only passing reference to Bostock, basing most of its legal arguments on other cases — most from the Ninth Circuit — supporting the position it was taking.
Now there needs to be some caution here about jumping to conclusions. These are cases that have not been tried on the merits. They are both at the preliminary stage where a temporary injunction is in effect. Temporary injunctions, by the way, are issued after the court finds a party will suffer irreparable harm if not granted, there is no adequate remedy at law, i.e., money damages are inadequate, there is the likelihood of prevailing on the merits, and the injunction will serve the public interest.
Obviously in making that determination the court can be seen as having made the ultimate decision, but that is not always true. But they often lead to settlements before trial. In any event, it must be noted that the cases have not been tried and, as far as I can see, they are not close to trial yet. So, as I’ve said before, stay tuned.
(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday at 10 a.m. CDT on Faith On Trial on IowaCatholicRadio.com.)
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