Another genius weighs in on Bostock v. Clayton County.
|Margot Cleveland | via The Federalist|
All the bitching in the world is not going to change the Supreme Court’s ruling in Bostock v. Clayton County. But they are sure going to try to alter the outcome. According to Margot Cleveland: LGBT Lawyers Already Using Supreme Court Ruling To Demand Hysterectomies For Men.
What Lambda portrays as discrimination based on gender identity is not sex discrimination under the reasoning of Bostock.
Cleveland, who is a lawyer, is also a professional Catholic which means that she does not believe that transgender people really exist (according to Church teachings). Cleveland was admitted to the bar in 1992 recently moved to Michigan. I can find no record of her appearance in any federal case. She was a career law clerk.
Presumably “hysterectomies for men” refers to a medical procedure for transgender men who have female genitalia. I always ask the same question: Why is it essential for medical practitioners to be able to discriminate against transgender people?
Let’s separate gender-affirming care from medical care unrelated to gender identity. I would argue that the gender identity of a patient who requires a hysterectomy is entirely irrelevant.
I can appreciate that someone might have a religious objection to gender-affirming care. That’s not to suggest that it makes any sense but it does exist. What we hear from Christian conservatives is opprobrium in search of a problem.
The reason I say that is that clinicians who provide gender-affirming care are specialists known to the transgender community as qualified caregivers. The prospect that someone with the views of Paul R. McHugh being required to perform a trans procedure are so remote as to be nonexistent.
This she has correct (absent the editorializing):
Writing for the five-justice majority in Bostock, Justice Neil Gorsuch twisted his way through a series of hypotheticals to conclude that “when an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex.” Thus, according to the Bostock court, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Keep in mind, however, that this is in the context of employment discrimination. I think — I would like — that reasoning to apply to matters of housing and public accommodations as well but that is not the case. Not yet anyway. That is more likely to be effected through federal legislation.
Besides, The Court’s approach to the ruling in Bostock was very pragmatic. It answers one simple question: Is employment discrimination on the basis of sexual orientation of transgender status discrimination on the basis of sex? The majority concluded that it is.
Cleveland’s vehicle for her bigotry is a lawsuit filed by Lambda Legal (with the white shoe firm, Steptoe and & Johnson) on June 22, 2020. The case is captioned Whitman-Walker Clinic v. HHS. The case addresses the Trump administration’s efforts to permit discrimination by medical practitioners and insurers at the behest of the Christian right.
As plaintiffs’ lawyers explain:
In 2016, HHS promulgated a final rule, developed over the course of six years and
two notice-and-comment periods, to implement the nondiscrimination requirements of Section
[Discrimination on the basis of gender identity or sexual orientation] constitutes discrimination on the
basis of sex, which the 2016 Final Rule specifically defined to include discrimination on the
basis of gender identity and sex stereotyping, among other criteria.
In other words, this was determined four years prior to the ruling in Bostock.
A few paragraphs later:
Now, however, with next-to-no legal, medical, or reasoned policy foundation, and
contrary to the opinions of professional medical and public health organizations,
issued a revised regulation under Section 1557 (the “Revised Rule”) that rolls back the 2016
Final Rule and limits the protections for LGBTQ people, among others.
That is a reasonable complaint.
While Margot Cleveland is conveniently focused on transgender care, Lambda Legal’s complaint is focused on general medical care with specific references to COVID-19. They make the point:
Multiple provisions in the Revised
Rule threaten to confuse and mislead patients, health care providers, and insurers and will result
in increased discrimination and substantial harm to precisely those vulnerable communities that
Section 1557 is intended to protect, like LGBTQ people and their families.
Neither Ms. Cleveland nor the Trump administration have really explained precisely why discrimination is necessary. Again, this has nothing to do with gender-affirming care which is provided by willing and qualified professionals. However, if, for example, a child is being raised by a married gay couple why would a doctor require the “right” to refuse treatment?
Lambda’s reasoning is this:
To be clear, Bostock’s holding that discrimination on the basis of sexual
orientation or transgender status constitutes discrimination on the basis of sex forecloses HHS’s
attempts to deny the full protection of Section 1557 to LGBTQ individuals and patients in health
If Ms. Cleveland wants to pose an argument that, for example, the fuling in Bostock is limited to employment discrimination then she is being intellectually honest. Instead, she indulges in an obnoxious attack on the community and falsehoods starting with this: “Trump Admin’s Return to Sanity Isn’t Discrimination.”
Let us permit Muslim physicians to turn away Catholics and see how Cleveland reacts. Furthermore, enabling discrimination is not a “return to sanity.” That is just mindless religious rhetoric. Sane, rational people (including the majority of Catholics) are not obsessed with discriminating against LGBTQ people.
Cleveland goes on to write:
Bostock does not stand for the proposition that “sex” means “gender identity” for purposes of Title VII, much less as used in the ACA.
Please. The Court ruled that discrimination on the basis of transgender status or sexual orientation is discrimination on the basis of sex. Lambda’s argument — the argument that Cleveland refuses to address — is that if the Court’s ruling applies to employment then it should also apply to healthcare.
Furthermore there are many more gay people than transgender people. Cleveland is focused on transgender people because they are easier to attack. This nasty bigotry becomes apparent with sentences like:
Give This Man a Hysterectomy, Stat!
Also, Give Sarah a Fake Penis
Cleveland provides a hypothetical:
Sarah asks her doctor to remove her uterus, but her doctor refuses because Sarah’s uterus is healthy. Sarah’s health insurance company also refuses to pay for the removal of a healthy uterus. Did Sarah’s doctor and health insurance company discriminate against Sarah on the basis of her sex?
Cleveland is begging the question. The misgendered Sarah is going to see a doctor who performs gender-confirmation surgery which involves much more than the removal of her uterus. Furthermore it is not a healthy uterus in a trans man with acute gender dysphoria. It is toxic to that individual.
The insurance issue is a non-starter. Prior to the Trump administration’s rule, Section 1557 was very detailed and specifically prohibited discrimination based on gender identity, it did not and does not require health insurance policies to “cover any particular procedure or treatment for transition-related care.”
Many employer health insurance policies include coverage for gender-affirming care, including surgery. It has depended on how much an employer is willing to spend and how import it is to that employer to have a diverse staff.
Cleveland answers her own rhetorical question:
No. If Sarah were a man, the doctor would have likewise have refused to remove his . . . uterus? It doesn’t work! Bostock makes no sense when applied in realm of sex-based distinctions.
Nice try but a terrible argument. If we remove from the issue the fact that Sarah is going to seek service from a willing specialist (which is not in the realm of possibility) then the misgendered Sarah is being discriminated against because of his status as a transgender man. Again, it is a hypothetical without a basis in reality.
Which brings me to the next bit of bullshit:
Failing the Test of Reality
Moreover, even if we manipulate the Supreme Court’s test to accommodate the biological differences between men and women, the result remains: no discrimination. Why? Because if a man asked his doctor to remove his healthy testicles, the doctor would refuse, and coverage would be denied.
Same situation. A transgender woman who seeks gender confirmation surgery is going to seek out a surgeon who performs the procedure. Qualifying for the surgery is not easy. It requires two psychological referrals, numerous interviews and the approval of the hospital where the procedure is to be performed.
For some trans woman, the existence of male genitalia is extremely disturbing. Thus, except for Christian simplistics, the equipment is not healthy. (And I cannot believe that I just wrote what should be perfectly obvious.)
If her insurance policy covers transgender care then the procedure will be paid for. That was the status in 2016 and it remains the status today. It was unaffected by the administration’s ruling.
So the “reality” is that insurance is not an issue and never has been in regards to gender confirmation surgery. Gender confirmation surgery for transgender people can make a considerable difference in that individual’s quality of life.
Ms. Cleveland does not approve. No one seeks her approval! Cleveland is irrelevant.
Returning to the misgendered Sarah with some self-serving inoculation:
You’re a Bigot If You Don’t Check Men for Cervical Cancer
Revisiting Sarah, our hypothetical woman suffering from gender dysphoria, provides the answer—and the answer is that Bostock is nonsense. Consider, for instance, how a doctor would treat Sarah consistent with her gender identity—that of a male. The doctor would check her prostate, test for signs of testicular cancer, and not perform a cervical examination. And it would be considered discrimination under Bostock if the doctor didn’t (or did) do these sex-based examinations.
So now, a transgender male is, for all intents and purposes, a male. Do let us know, on a continuing basis, what position that SPST (Single Pole Single throw) switch is in.
The argument is absurd per se. A person’s healthcare is dictated, in part, by their anatomy. So, yes, a transgender man is going to be screened for cervical cancer if he still has a uterus.
Margot Cleveland is demonstrating that she is a bigot. We all know — it is not a secret — that transgender people have chromosomes consistent with their natal sex. Pretending that there is ambiguity is simply a means of marginalizing people one disapproves due to religious beliefs.
She brings this all to a conclusion:
The Supreme Court could obfuscate that reality in Bostock, but Lambda’s lawsuit exposes, not just how extreme the Obama administration was, but how extreme the Supreme Court’s decision was. And when “sex” meets science, Justice Gorsuch will have some serious explaining to do.
The woman is delusional. She is torturing logic to display her disapproval of transgender people. She is also creating her own truths. The simple fact is that the administration is now providing cover for discrimination which is “far more pernicious” in healthcare unrelated to gender-affirmation.
As long as some people find it necessary to display their disapproval (which is what most anti-LGBTQ discrimination is all about) those same people will attempt to discriminate. In the final analysis this entire jeremiad is unnecessary because there is absolutely no reason that people need to discriminate in providing healthcare.
If a gay man walks into the waiting room of a new physician with his husband that does not justify the doctor not treating him for whatever condition brought him there.
The good news is that people like Margot Cleveland are very much in the minority. My primary care physician is a Catholic woman of Cuban descent. She knows that I am gay and it is irrelevant. I receive first-rate medical care.
Unfortunately we do not all live in Miami Metro. Some people live in some truly awful places to be an LGBTQ individual. Bigotry and discrimination are rampant just 50 miles north of where I live and throughout the South. It is equally unfortunate that government needs to tell people how to behave in a diverse society.