Bostock, the HHS Rule, and Legal Reliance on Biological Claims about Sex: An Analysis from the GenderSci Lab
Author: Maayan Sudai, GenderSci Lab Legal Policy Director
Last week was big news for LGBTQ+ rights in the US. Two major pieces of law came out just days apart, promising to change the landscape of sex-based anti-discrimination law and the way sex is understood in federal law. In this post, we briefly outline the contours of these new legislative policies, consider the implications for LGBTQ+ rights in the US, and think about how this changes legal reliance on biological claims about sex.
The first is a piece of regulation, the final Nondiscrimination in Health and Health Education Programs or Activities Rule, issued by the Department of Health and Human Services (DHHS). Among other things, the HHS Rule excludes from the scope of Affordable Care Act (ACA) anti-discrimination protections “because of sex,” covering statuses such as termination of pregnancy, sexual orientation, and gender identity. The Rule applies to all health programs or activities receiving Federal financial assistance (including parts of Medicare) but not to self-funded group health plans. In defining anti-discrimination protections to exclude sexuality and gender identity, the new HHS rule makes it easier for health care providers to refuse to cover or offer needed medical services to someone because of their sexual orientation or gender presentation.
The second is a landmark decision issued by the Supreme Court in Bostock v. Clayton County. The case dealt with the question of whether Title VII, a federal law that protects employees from discrimination because of sex, applies to trans and gay employees that were discriminated against because of their sexuality or gender identity. The Bostock decision argued that firing an employee due to their sexuality or gender identification amounted to sex-based discrimination under Title VII. The Court decided that sexual orientation and gender identification are entitled to protection from sex-based discrimination.
How do we understand these two seemingly conflicting new pieces of law and regulation, and what do they mean for how LGBTQ+ rights are understood in US anti-discrimination law now?
The HHS Rule was premised on the claim that, in relevant federal law, “sex” is biological and binary. Establishing this claim in federal law has been a longstanding and explicit goal of the Trump administration and of Roger Severino, the DHHS Director for Civil Rights. In defining sex-based discrimination, Severino favors what he describes as “the plain meaning of those terms, which is based on biological sex.” According to this interpretation, discrimination on the basis of gender identity or sexuality does not constitute discrimination on the basis of biological sex. But within days of issuing the final version of the HHS Rule, the Supreme Court issued the Bostock decision, which seems to make an understanding of sex as biological and binary irrelevant to understanding anti-discrimination suits.
The Bostock decision has unclear implications for the HHS Rule. The reason for this lack of clarity is that the majority decision of Bostock argues that even if sex is commonly understood as binary and biological, discrimination against trans and gay people is still based on their sex. While the Court’s Bostock decision ruled that the prohibition to discriminate “because of sex” in Title VII spreads over cases in which trans and gay people were discriminated against, the Court does not argue this because it considers the meaning of sex to actually include “gender” or “sexual orientation”, as many pro trans and gay advocates have argued throughout the years. Notably, it also includes no reliance on psychiatric or medical conditions such as “gender dysphoria.” Rather, the Court simply finds that someone cannot be fired for being gay (for example), without taking their sex (assigned at birth) into consideration. Discriminating against people because they are trans or gay, the court says, inherently takes “sex” into consideration, hence, it is an unlawful discrimination “because of sex.”
This sort of formalistic textual interpretation is established on a framework of causation called “but for”: a particular outcome would not have happened unless the cause existed. In the words of Justice Gorsuch: “if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” The Court does not validate, nor argue with, the idea that sex is biological or binary as the employers insisted, but rather proceeds on that assumption for the sake of the argument. The result of the case demonstrates that even if “sex” is taken to be biological and binary, discrimination because of someone’s sexual orientation or gender identification is still “because of sex,” and thus illegal.
Since the Bostock decision came out, it has been loudly celebrated by the LGBTQ+ community and has also been hailed as enhancing protections for “all women” and men from sex-stereotyping at work. The decision is presumed to dramatically move the scales in favor of trans and gay litigants across the anti-discrimination jurisprudence board. Both the employers and the dissenting Court opinion warned of such a result: this decision “is virtually certain to have far reaching consequences,” over dozens of federal anti-discrimination laws that forbid discrimination because of sex, wrote Justice Alito.
One place that everyone will likely be looking next will be bathroom laws. Sex segregation in bathrooms, locker rooms, and, relatedly, sport teams in educational programs is a particularly heated issue that is challenged by lawmakers and in the courts continuously. The majority decision in Bostock emphasized that the Court is not ruling on bathrooms or similar related issued governed by other laws. However, if the “but for” logic laid out in Bostock is applied to a different federal law (Title IX), trans students excluded from utilizing bathrooms consistent with their gender would likely have a strong claim to being discriminated “on the basis of sex.” It is probably too early to predict how things will play out in these contexts, both because the federal Title IX that applies to school bathrooms, locker rooms, and such is understood similarly but not identically to Title VII, and also because, in contrast to employment discrimination, sex-based segregation in bathrooms and locker rooms are hardcore conservative values which will likely be strongly defended by movement actors.
The impact of Bostock on health care anti-discrimination law – in other words, how it will interplay with the HHS rule – is also difficult to forecast. Lambda Legal, one of the largest LGBTQ+ rights legal organizations, has already filed a lawsuit against the HHS challenging the final rule. While the HHS rule applying to the ACA permits discrimination because of sexual orientation or gender, Bostock, interpreting Title VII, explicitly does not. Which interpretation will prevail?
Some commentators have argued that Bostock basically buried the new HHS Rule. Still, some think that HHS will fight back, relying on clues left in the finalized Rule. HHS has argued that the fact that the HHS Rule concerns health issues justifies a different approach. As the HHS wrote in the final rule, anticipating the Bostock decision on the meaning of “because of sex” in Title VII: “the binary biological character of sex (which is ultimately grounded in genetics) takes on special importance in the health context. Those implications might not be fully addressed by future Title VII rulings even if courts were to deem the categories of sexual orientation or gender identity to be encompassed by the prohibition on sex discrimination in Title VII.”
In other words, HHS claims a special exemption for health-related issues from the understanding of anti-discrimination law as applying to workplace protections for trans and gay people. In a health context, religious exemptions could also provide a toehold for conservative employee insurers and health care providers to continue, even after Bostock, to refuse (under certain circumstances) to cover or provide treatment that substantially burdens their exercise of religion.
In sum, the Bostock decision does not object to the understanding of sex proposed in the HHS rule – it just didn’t take a position on the matter. Bostock simply applied a formalistic textual approach grounded in legal interpretive expertise. While the HHS is committed to a biological, binary and genetic notion of sex, Bostock suggests that this notion of sex does not entail that trans and gay people are excluded from anti-discrimination protections.
Writing on the Bostock decision, Brooklyn College Professor of Political Science Paisley Currah aptly stated that, “sex, as a legal decision backed by the force of law, does not operate as a thing in itself but as a technology of governing.” Bostock and the HHS rule remind us that the scientific and medical claims about sex differences that the GenderSci Lab analyzes as our bread and butter have real implications for sex and gender based anti-discrimination protections.
Statement of Intellectual Labor:
Sudai drafted the post, and Sudai, Shattuck-Heidorn, and Richardson added substantive revisions and edits to the final piece. Sudai thanks Lihi Yona, Ido Katri and Doron Dorfman for providing useful conversations and references.