On June 12, the Trump administration issued a Department of Health and Human Services rule that eliminated the protections transgender patients had under the Obama administration from discrimination by doctors, health care providers and hospitals. A few days later, the Supreme Court issued a ruling in Bostock v Clayton County, which stated that LGBTQ individuals could not be discriminated against in the workplace.
The issue in both rulings came down to the definition of the word “sex” — and both reached different conclusions on its interpretation. The word has faced much controversy in laws such as Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the grounds of “race, color, religion, sex [emphasis added], and national origin,” and Title IX of the Education Amendments Act of 1972 which states, “no person in the United States shall, on the basis of sex [emphasis added], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Laws such as Title VII and Title IX prevent discrimination based on sex, but they do not necessarily define what “sex” is. Moreover, neither explicitly states what “sex” means in a medical context, as they mainly discuss “sex” in employment law and education. The definition of “sex,” both in the medical field and beyond, is still widely debated in the legal field and is a source of many of the political disagreements we have seen this past month.
The Trump Administration Definition of “Sex”
A rule passed by the Department of Health and Human Services on June 12 established the word “sex” to be defined as “biological sex” in the context of hospitals and medical care. By extension, “discrimination by sex” applied to circumstances particularly involving discrimination against a patient for his or her biological sex of being a male or female.
The ruling overturned a 2016 rule by the Obama administration, which clarified that any health insurers and medical providers that received federal financial assistance were forbidden from discriminating against transgender patients.
Opponents of the 2016 Obama rule argue that it coerced doctors into providing sexual reassignment operations, which are normally handled by specialists. In the Department of Health and Human Services 2020 rule, they also argue that the 2016 rule required surgeons to perform a surgery even if they felt the surgery was against a patient’s best medical interest. Moreover, opponents brought up a case in the 2020 rule where a transgender patient was treated as a male patient, and therefore the medical team missed diagnosing the patient’s abdominal pain as a pregnancy with a stillborn child. They claim these issues, as well as others brought up in the recent rule, can cause confusion in medical practice.
“This final rule eliminates that confusion by returning to the plain meaning of the underlying statutes, relying as it does on the plain meaning of ‘sex’ as biologically binary,” the Trump administration states in the 2020 rule.
The Supreme Court Majority Definition of “Sex”
On June 15, the Supreme Court issued a ruling in Bostock v Clayton County, an employment discrimination case regarding a gay man who was terminated from his job due to sexual orientation discrimination. In this case, the court interpreted discrimination by “sex” to include discrimination by different sexual orientations or gender identities, not only biological sex.
Justice Neil Gorsuch delivered the majority opinion, which extended protection from workplace discrimination to transgender people. Gorsuch is a follower of “textualism,” a school of constitutional interpretation that looks solely at the definition of the written words of the law, and not about the intent of the lawmakers who wrote them (intentionalism) or the pragmatic value of a court decision (pragmatism). As a textualist, Gorsuch claims the definition of “discrimination by sex” in Title VII applies to LGBTQ people as well.
“It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” he wrote in Bostock v Clayton County.
He also argues in the majority opinion, “when an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care.”
Gorsuch further argues that what matters is the words of the law that was written, not the intention of the lawmakers in 1964 — and he acknowledges that the intention of those members of Congress was probably not to protect LGBTQ individuals at the time. This latter viewpoint would probably align more with an intentionalism, not textualism.
Different Opinions Within The Supreme Court
Textualism is a school of constitutional interpretation often associated with more conservative judges, but not all textualists agree with Gorsuch’s textualist interpretation of the word “sex.” Justice Samuel Alito and Justice Clarence Thomas, two more right-leaning justices on the bench, issued a dissenting opinion criticizing the majority for trying to “pass off its decision as the inevitable product of the textualist school of statutory interpretation,” but actually revising Title VII to “better reflect the current values of society.”
They claim that Gorsuch’s majority opinion was not actually textualism, and that it is really another form of constitutional interpretation in which the values of modern society were used to come to the decision. According to their interpretation of “textualism,” perhaps the word “sex” would be defined to be as it is in a dictionary, but it would not include other factors such as the values of society today, which may be considered pragmatism.
Other conservatives have expressed disagreements with the majority opinion as well. Carrie Severino, president of the Judicial Crisis network, a conservative legal organization, stated, “you can’t redefine the meaning of words themselves and still be doing textualism. This is an ominous sign for anyone concerned about the future of representative democracy.”
The disagreements over textualism and the definition of the word “sex” are not the only legal arguments at play here. Several other matters have come into question in this case. For instance, Justice Brett Kavanaugh issued another dissenting opinion which argued that “Title VII does not explicitly prohibit discrimination on the basis of sexual orientation (or by extension, transgender status).” His conclusion is quite different from the others since it looks at whether the phrases “sexual orientation” or “transgender status” were included in Title VII, not an interpretation of the word “sex.”
What Does This Mean for the LGBTQ Community?
Issued just days apart, the Trump administration rule and the Supreme Court majority ruling seem to reach contrary decisions and have left many across the country wondering what these decisions mean for LGBTQ rights. The Trump administration rule defined “sex” to be “biological sex,” but the majority opinion of Bostock v Clayton County argued it included sexual orientation and gender identity as well.
While they may seem to reach contrary decisions, there are nuances behind the two laws that make them slightly different. For instance, Bostock specifically involves discrimination by sex in employment law and claimed LGBTQ individuals could not be discriminated in the workplace. The Trump ruling regards discrimination by sex in medical practice and stated that sex would be defined as biological sex in hospitals. Because of these differences, it may take some time before a decision is reached that explicitly clarifies the definition of “sex” in medical practice across all branches of the government, bridging the gap between the two decisions’ contrary definitions of the word.
Image credit: Created by Shareen Patel for this column.
As doctors-in-training, we are not often exposed to the fundamental legal tenants of healthcare and medicine. But law and policy play a significant role in how we will practice — including but not limited to the role of legal documents such as the Constitution on health policy, the impact of Supreme Court cases on healthcare legislation, and the role of international organizations and governmental decisions in global health. By discussing topics in medical law, public health policy, and the government’s role in healthcare, we can better understand the intersection between the duties of physicians on the clinical level and the involvement of medicine on a national level.