Readers will recall our surprise that so much of the rule-making under ACA § 1557 addressed transgender issues. We now have decisions from two federal district courts taking polar opposite positions on whether § 1557 prohibits such discrimination. Franciscan Alliance, Inc. v. Burwell, 227 F.Supp.3d 660 (N.D. Tex. 2016) said that it does not; Prescott v. Rady Children’s Hospital – San Diego, S.D. Cal. No. 16-cv-02408 (Doc. 22, Sept. 27, 2017) affirmed that it does. Both can’t be correct.
The California decision reasoned from the premise that Title VII of the 1964 Civil Rights Act prohibits transgender discrimination, citing decisions to that effect from the Sixth, Seventh, Ninth and Eleventh Circuit Courts of Appeal. Because other Circuits take the opposing view, the dispute may be resolved by the U.S. Supreme Court soon. Notably, the Department of Justice on October 4, 2017 switched sides in this fight, taking the view expressed by the Texas court.