Texas, Montana AGs sue Biden's HHS over rule requiring hospitals to perform child sex changes or risk federal funding

Texas Attorney General Ken Paxton announced on Tuesday that he and Montana Attorney General Austin Knudsen have sued the Biden administration over a new rule in the Affordable Care Act that would force healthcare providers to perform sex change procedures or risk federal funding. 

"This is yet another example of Joe Biden trying to sidestep the Constitution and use agency rulemaking to advance unpopular, unlawful, and destructive policies," Paxton said in a statement. "We are suing to stop the Biden Administration from withholding federal healthcare funds to force medical professionals to perform these experimental and dangerous procedures." 

The lawsuit was brought in the US District Court Eastern District of Texas Tyler Division against Department of Health and Human Services (HHS) Secretary Xavier Becerra, HHS Director for Office for Civil Rights Melanie Fontes Rainer, the Centers for Medicare and Medicaid Services, and the HHS. 

A new rule issued in May under Section 1557 of the Affordable Care Act would pull federal funding from "healthcare providers across the country who refuse to perform or pay for experimental, unproven, and potentially dangerous ‘gender transition’ procedures," a press release from Paxton’s office said. 

The rule also "purports to override and preempt all State laws to the contrary, ensuring that the Biden Administration’s assumption of control over the States’ regulation of health and safety is complete," the lawsuit states. 

The lawsuit stated that Section 1557 was being wrongly used by the Biden Administration and does not authorize "the federal government to compel anyone to perform or pay for these procedures." The section prohibits discrimination as outlined in Title IX, Title VI, the Americans with Disabilities Act, and the Rehabilitation Act. The lawsuit notes that Section 1557 "does not add a new non-discrimination provision to the United States Code, but merely incorporates by reference pre-existing provisions." 

"In the Final Rule, the Department of Health and Human Services (HHS) interprets Section 1557 far more broadly by equating 'sex' discrimination with discrimination based on 'gender identity.'" 

The lawsuit noted that at the time of the Affordable Care Act’s enactment in 2010, "no federal court or federal agency interpreted “sex” in Title IX to include gender identity." 

"In fact, Section 1557 specifically excludes from the scope of its nondiscrimination rule 'transsexualism' and any 'gender identity disorder' 'not resulting from physical impairments.'" 

The lawsuit also noted that healthcare providers in Texas would be required to fill prescriptions for puberty blockers in direct violation of state law, or risk losing federal funding. 

The attorneys general noted that following a 2016 issuance of a rule under Section 1557 that defined "on the basis of sex" to include "gender identity" Texas sued, with a court agreeing that the rule’s definition of "sex" was inconsistent with Section 1557 as a whole. 

"From the day the Biden Administration took office, HHS has been seeking to reinstate the 2016 Rule’s redefinition of 'sex' discrimination under Section 1557 to include 'gender identity.' But again, these efforts have repeatedly been recognized as contrary to law," the lawsuit stated. 

The lawsuit also noted that "The proper treatment of gender dysphoria—a condition defined to involve distress from a discordance between a person’s perceived gender and his or her biological sex—'remains one of the most hotly debated topics within the medical community today,'" noting the risks that come alongside the medications and procedures that those, including minors, who believe to be transgender undergo. 

Additionally, the attorneys general noted that England has enacted an emergency ban on the use of puberty blockers, and other countries around the world have raised questions on the usage of puberty blockers and cross-sex hormones.