AUSTIN, Texas — The Biden administration did not appeal a recent court loss in Texas regarding federal LGBTQ protections, a decision Attorney General Ken Paxton is celebrating as a win.
On October 1, U.S. District Court Judge Matthew Kacsmaryk declared unlawful two pieces of federal guidance: one that said the Affordable Care Act protects transgender patients’ access to gender-affirming care; and another that said employment protections for gay and transgender workers extend to policies like dress code, as well as what pronouns and bathrooms they use.
Kacsmaryk agreed with Texas that this interpretation was overly broad. He said a recent U.S. Supreme Court ruling protecting gay and transgender workers narrowly dealt with hiring and firing practices, and rejected the argument that sex is “inextricably intertwined” with certain workplace “conduct.”
While federal guidance is not meant to be legally binding, the ruling noted that the Biden administration said Texas could face penalties for not protecting gender-affirming care.
The U.S. Department of Justice could have appealed Kacsmaryk’s decision but didn’t do so before the deadline, which according to federal rules is 60 days after judgment.
Experts said the lack of an appeal won’t have an immediate and direct effect on LGBTQ rights here, and expect the administration has another legal strategy in the works to reinstate these same protections.
But Paxton, a Republican who has long opposed LGBTQ rights, noted his win in a press release Tuesday that accused the president of giving up on the case.
“Biden’s failure to appeal by the deadline means this victory is now secure — Texas employers and employees will not be forced to have workplaces infused with woke gender theories, and Texas children will be safe from the Biden Administration’s so-called sexual orientation and gender identity agenda,” he said in a statement.
Representatives with the White House and the Justice Department did not answer questions about the case. The Equal Employment Opportunity Commission, which issued the employment guidance, referred comment to the Department of Health and Human Services, which did not respond to requests for comment.
Given the Biden administration’s silence, it is unclear why it chose not to appeal Kacsmaryk’s decision.
One reason may be because the federal health and education agencies have already proposed new federal regulations meant to prohibit discrimination based on sexual orientation, gender identity and sex stereotypes in the classroom and doctor’s office. The public comment period for both has already closed.
It is unclear whether the Biden administration is proposing new federal rules regarding employment that cover the issues in the Texas case, like dress code and pronoun usage.
Joshua Block, a senior attorney at the ACLU’s LGBTQ & HIV Project, said Kacsmaryk’s ruling doesn’t have an immediate effect because federal guidance represents the agency’s interpretation of the law and vacating it doesn’t have a legal effect.
“I don’t think the decision not to appeal actually has a practical effect on anyone’s rights one way or another because all this was in the first place was just nonbinding guidance,” he said. “The courts continue to decide cases when they’re actually filed, and no other judge is bound by this judge’s legal reasoning.”
South Texas College of Law professor Joshua Blackman surmised that the Biden administration may have seen this case — decided by a Trump-appointed judge and facing a conservative appeals court — as a lost cause and chose instead to start on the issue anew with the proposed regulations.
Before his time on the bench, Kacsmaryk openly opposed the expansion of LGBTQ rights. Formerly with the Plano-based Christian legal organization First Liberty Institute, he was critical of same-sex marriage and opposed transgender-inclusive policies in Texas schools as an erosion of parental rights and religious liberties.
Blackman added that even though the two pieces of guidance are vacated, workers who believe they have been discriminated against because of their gender identity or sexual orientation can still sue.
“Even if the guidance is halted, private litigants can still use these theories in employment discrimination cases,” he said.
Carl Tobias, a federal courts and judicial selection expert at the University of Richmond School of Law, said the federal government’s choice to stop fighting was unusual.
But he too believes the administration may not be explaining its decision because it has another plan in the works and doesn’t want to reveal it yet to opponents. Biden’s decision not to appeal certain cases may also be intended to protect future presidents’ prerogatives when taking executive actions.
“There may be some litigation strategy and they just don’t want to talk about it,” Tobias said.
Ricardo Martinez, the head of the LGBTQ advocacy group Equality Texas, said his group would continue to fight for “full equality” regardless of what the Biden administration chooses to do.
This is one of several lawsuits regarding LGBTQ rights currently being litigated in state and federal courts in Texas.
On Monday, Paxton announced he was suing over another federal rule barring federally funded adoption agencies from discriminating on the basis of gender identity, sexual orientation or same-sex marriage status. That lawsuit was filed in the Southern District based in Galveston.
