The ‘conservative’ 5th Circuit just shielded Biden’s radical gender agenda

How does Title IX, which prohibits sex-based discrimination, justify forcing doctors to violate the Hippocratic Oath and perform castrations to accommodate transgender ideology? No rational legal mind could reach that conclusion.

Yet the judiciary has become so politically compromised that even the supposedly conservative Fifth U.S. Circuit Court of Appeals upheld an interpretation of the law that forces doctors to perform these procedures — or risk losing Medicaid and Medicare reimbursements.

If doctors must wait until they are punished to challenge a rule, why don’t Trump’s directives get the same deference? What happened to legal consistency?

As part of the Biden administration’s relentless effort to impose transgender ideology nationwide, the president issued an order last year interpreting Section 1557 of the Affordable Care Act as a mandate for doctors to perform irreversible castrations. Originally designed to prohibit sex-based discrimination under the 1972 law, Section 1557 has now been twisted into the prior administration’s legal justification for these procedures.

Yes, the deeply flawed Bostock v. Clayton County decision — thanks to Justice Neil Gorsuch — expanded the 1972 law to include protections for transgender individuals. But on what basis does an anti-discrimination law create a right to force doctors to perform procedures they believe cause harm?

Bostock involved an employee fired for cross-dressing at work. Biden’s order, by contrast, does not merely prohibit discrimination — it compels employers to provide not just dresses but irreversible medical procedures.

Questions of standing — and bad precedent

For any Republican-appointed judge, this should have been an easy decision. In 2022, Judge Matthew Kacsmaryk, a Trump appointee in the Northern District of Texas, ruled in favor of the physician plaintiffs. He issued a declaratory judgment stating that the administration had completely misinterpreted the Affordable Care Act’s anti-discrimination provision. He also affirmed that physicians had clear standing to sue over the order.

In December, a three-judge panel of the Fifth Circuit, including two Republican appointees, ruled that doctors lacked standing to sue the Biden administration.

“The plaintiffs do not consider their actions to be gender-identity discrimination, nor do they provide evidence that HHS would view them as such,” the court stated.

“Plaintiffs have failed to show they are actually violating the Notification, much less facing a credible threat of enforcement," Judges Edith Jones, Catharina Haynes, and Dana Douglas wrote in their per curiam opinion.

Last week, despite a 12-5 Republican-appointed majority, all but one judge — James Ho — refused to hear the case en banc, allowing this precedent to stand.

This case highlights how judges selectively apply standing based on political considerations. The left rarely struggles with standing. During Trump’s presidency, his executive orders faced immediate legal challenges, and liberal judges routinely granted standing.

For instance, blue states successfully sued over Trump’s order on anchor-baby citizenship, yet red states were repeatedly denied standing to challenge Biden’s immigration law violations.

The inconsistency is blatant. Doctors facing potential loss of Medicaid reimbursements supposedly do not have a “justiciable case,” but Trump’s executive orders were routinely enjoined before they even took effect.

The idea that doctors cannot sue over a regulation that threatens their Medicaid reimbursements until after they suffer consequences defies legal precedent.

A terrible double standard

Meanwhile, Trump’s executive orders have been blocked before even appearing in the federal register. How can courts enjoin a presidential directive before it becomes an official regulation?

If doctors must wait until they are punished to challenge a rule, why don’t Trump’s directives get the same deference? What happened to legal consistency?

The idea that doctors who have not yet faced punishment but could lose Medicaid reimbursements for refusing to perform castrations lack a ripe, justiciable claim is absurd given what happens in the courts daily.

I’m all for a minimalist judicial approach, but why does that never apply to those suing Republican presidents? Indeed, the courts have become a one-way ratchet for the left.

In a spirited dissent from his 16 colleagues — something he has grown accustomed to — Judge Ho argued that refusing to provide sex hormone therapy is not the same as categorical discrimination. A doctor who declines to prescribe hormones for gender dysphoria is not refusing to treat a transgender patient for a broken bone.

The Supreme Court already ruled in Geduldig v. Aiello (1974) that denying coverage for pregnancy does not constitute sex-based discrimination. “While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification,” the justices ruled.

On the question of standing, Judge Ho criticized the majority for basing its argument on the notion that a podiatrist wouldn’t offer “transition” services anyway, so not every doctor should have standing to sue. He called this absurd, pointing out that Dr. Susan Neese, the plaintiff in this case, practices general internal medicine.

“She is fully capable of providing such services to minors,” Ho wrote. “She just thinks it’s wrong to do so.”

“If there’s a plausible basis for theorizing that it’s somehow outside of Dr. Neese’s specialty to simply make a referral of a minor patient to another doctor who specializes in the field, the United States has not offered one,” he concluded.

Trump is likely to overturn this policy anyway, but as Ho warned, the Fifth Circuit’s decision allows a bad precedent to remain in place for future cases.

“By denying rehearing en banc, our court today leaves on the books a published, precedential ruling that overturns the district court’s dutiful efforts and validates administrative overreach in an area of profound sensitivity,” he wrote in a footnote.

One can only speculate, but given the left-wing political attacks on the Fifth Circuit, some worry that the judges are softening their stance to avoid appearing too conservative. Whether that’s better or worse than siding with the ideological left outright is debatable. Either way, Trump should make a point of appointing more judges like James Ho in his second term — jurists who not only hold sound legal principles but also have the courage to rule accordingly.