Texas and Montana are suing the Biden Department of Health and Human Services for adopting a rule that compels health-care providers to perform transgender procedures on minors and adults, as well as forcing states to pay for the medical interventions through Medicaid and Medicare.
Last month, HHS announced a new rule under the Affordable Care Act to prohibit discrimination on the basis of gender identity and sexual orientation in the health-care system. If health-care providers do not comply with the final rule, they could risk losing federal funding.
The joint lawsuit, filed in federal court on Monday, argues that the regulation is unlawful and unconstitutional for overriding state laws that already restrict “gender-affirming care” pertaining to children. Texas and Montana want the policy to be struck down before it takes effect on July 5.
“This is yet another example of Joe Biden trying to sidestep the Constitution and use agency rulemaking to advance unpopular, unlawful, and destructive policies,” Texas attorney general Ken Paxton said.
“Healthcare providers should not be forced to perform dangerous and life-altering experimental procedures under the threat of losing the federal funding they rely on to keep their doors open,” Montana attorney general Austin Knudsen added. “And the states should not be compelled to foot the bill for treatments that are leaving people, even children, with irreversible damage.”
HHS cites Section 1557 of the ACA as its reasoning for the mandate. Section 1557 is designed to ban any federally funded health program from discriminating against classes protected under Title IX, which prohibits sex-based discrimination. The federal health agency, however, broadly views such discrimination as encompassing gender identity in addition to biological sex.
The Republican attorneys general say states would be required to allow and pay for puberty blockers and gender-transition surgeries under the regulation, despite any laws they may have in place.
The new rule marks the fourth time an attempt has been made to change Section 1557, per the federal suit. All previous efforts, led by the Biden and Obama administrations, have failed in court.
“The fourth time is not the charm,” the lawsuit states. “HHS’s latest attempt to refashion the medical profession to match its views on ‘gender identity’ and ‘gender-affirming care’ again exceeds its authority under Section 1557, Title IX, and the United States Constitution, and it must be set aside.”
Two HHS officials — Secretary Xavier Becerra and Director of the Office for Civil Rights Melanie Rainer — are listed as defendants in the litigation.
Approximately 20 states have enacted bans on transgender procedures for minors. Both Texas and Montana passed such laws last year, but were quickly met with legal challenges. Texas’s law is currently in effect, and Montana is appealing a lower court’s ruling that blocked enforcement of its legislation.