Last Friday, a federal judge in Texas ordered a nationwide injunction blocking a recent Biden-Harris administration rule from requiring federally-funded health care doctors and state insurance plans to perform and pay for harmful puberty blockers, hormones, and mutilating surgeries. The judge’s order expands a previous injunction from July 3, 2024, that only applied to Texas and Montana, and at the behest of the two states, he applied it nationwide noting certain provisions of the rule “are unlawful to all participants.”
As a result, every state and medical provider receiving federal financial support is now protected from being forced to comply with the rule under financial threats from the federal government. For the 26 states who have laws protecting children from medical mutilation, this injunction also keeps this rule from preempting those laws.
U.S. District Judge Jeremy D. Kernodle summarized in his ruling that Texas and Montana sued the U.S. Department of Health and Human Services (HHS), which issued the rule May 6, 2024, claiming the rule would “override” state laws protecting children from medical mutilation. He also noted that the rule would threaten health care providers and states with the loss of millions in federal funding if they decline to provide and pay for these experimental gender interventions for children and adults alike. The new HHS Final Rule puts states in this position by infusing gender ideology into sex-based discrimination protections. The rule adds a “non-exhaustive list” that protects discrimination on the basis of sexual orientation, gender identity, and sex stereotypes. According to the judge, HHS claims the term “on the basis of sex” in Title IX and the Affordable Care Act naturally includes “gender identity” and that those statutes give HHS the authority to expand the rule and enforce these requirements.
However, Judge Kernodle rejected that argument in his July 3 injunction noting that “sex” is “an immutable characteristic” determined at birth, and when Title IX was enacted in 1972, “sex” unambiguously meant “only a person’s biological sex.”
“Dictionaries from the time convincingly support this view,” wrote Judge Kernodle. “Numerous courts have reached the same conclusion, holding that Title IX prohibits discrimination ‘between males and females’ only…[b]ut an agency has no authority to promulgate a rule that contradicts the language of the statute.”
Judge Kernodle’s ruling went a step further illustrating how the rule, which prohibits denying services based on gender identity – even services exclusively associated with one gender – would compel “absurd” results. These results would include “requiring a provider to perform a prostate cancer screening on a biological woman who demands one;” allowing gender-confused males into “female exclusive facilities, including shared hospital rooms;” and the penalization of health care providers who “universally” decline to perform gender interventions because they believe such procedures are “always detrimental to the patient.”
“Here, federal agencies are attempting to impose a sweeping new social policy by manipulating and perverting the statutory text that constrains them,” wrote Judge Kernodle.
In addition to distorting federal law, Judge Kernodle noted how the rule puts states that want to protect minors from medical mutilation or prohibit Medicaid coverage of these procedures in a bind.
“…the Rule ‘purports to override and preempt all State laws to the contrary,’ and HHS has given the States ‘an impossible choice’—‘violate and abandon state law or risk devastating financial loss,’” wrote Judge Kernodle. “Nothing in these statutes authorizes HHS—or any federal official—to require healthcare providers to perform novel [gender-related] procedures or force States to subsidize them.”
While the injunction applies nationwide, Judge Kernodle tailored his order only to block certain provisions of the HHS Final Rule allowing other sections unrelated to the legal challenge to go into effect.
This ruling marks at least the fifth time a federal judge has struck down Final Rules from the Biden-Harris administration. In July 2024, a Mississippi judge blocked nationwide a similar HHS rule that would have also forced states to use taxpayer dollars to pay for gender interventions. In August 2024, the U.S. Supreme Court ruled 9-0 to uphold three injunctions levied by three other U.S. district judges. These injunctions block the Department of Education from enforcing the federal government’s redefinition of “sex” across 26 states, such as Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
Liberty Counsel Founder and Chairman Mat Staver said, “Federal law does not force doctors to perform harmful or experimental procedures, nor does it require taxpayers to pay for them. These rules are detached from biological reality and represent an unlawful and extreme agenda. The increasing number of injunctions show that forcing gender ideology into law lacks merit.”
For more information about state laws protecting against gender ideology, visit Liberty Counsel’s website here.
