GOP-led House passes bill to ban trans students from girls' sports
The vote came days after SCOTUS took up an appeal in a challenge to ACA-required coverage of an HIV prevention drug. And, for paid subscribers: Closing my tabs.
On Tuesday afternoon, the U.S. House of Representatives passed a bill to ban transgender students from girls and women’s sports in schools — an escalation of anti-trans lawmaking in advance of the Republicans’ rapidly approaching moment of control of every branch of the federal government.
Following the near-party-line 218-206-1 vote, the bill nonetheless faces an uncertain future in the Senate, where Republicans have 53 members and the bill would require 60 votes for passage.
Among the extreme anti-trans commentary that Republicans shared on the House floor on Tuesday, however, was explicitly religion-based opposition to trans people and statements amounting to denying the existence of trans people altogether.
When time came for a final vote on H.R. 28, every Republican voting supported the bill. Two-hundred-and-six Democrats voted against the bill. Only two Democrats, Reps. Henry Cuellar and Vicente Gonzalez, both of Texas, voted for the bill. One Democrat, Rep. Don Davis of North Carolina, voted present.
Coming just two weeks into 2025, Tuesday’s House vote was the second major decision that makes clear just how difficult the path ahead could be for queer people.
On January 10, the U.S. Supreme Court announced that it would be hearing a case this spring, Becerra v. Braidwood Management, that came out of a challenge to the Affordable Care Act’s requirements that health insurance plans cover PrEP (pre-exposure prophylaxis, a drug regimen that is extremely effecting in preventing a person taking it from getting HIV) and certain contraceptive care. As the case expanded since then, a ruling in favor of Braidwood could threaten dozens of preventative care measures currently required to be covered under the ACA without patients needing to shoulder any of the cost.
The lawsuit, which was originally filed way back in 2020, is explicitly anti-gay and anti-reproductive freedom, and it is backed by Jonathan Mitchell — the former Texas solicitor general behind Texas’s S.B. 8 vigilante abortion ban.
The preventative care case
After an initial ruling in September 2022 that threatened PrEP access, U.S. District Judge Reed O’Connor later issued an order in March 2023 that would end the ACA’s preventative care coverage requirements for a wide swath of care, including PrEP — but also cancer and mental health screenings, among many other preventative care measures that the ACA requirement mandates be provided in insurance plans at no cost to patients.
O’Connor found that the PrEP coverage requirement violated the religious rights of the employers suing under the Religious Freedom Restoration Act, but he also found that the task force whose recommendations lead to the preventative care requirements was unconstitutionally appointed. As a result of that latter decision, O’Connor concluded that all of the coverage requirements resulting from the U.S. Preventative Services Task Force’s recommendations should be tossed out.
The U.S. Court of Appeals for the Fifth Circuit largely upheld that decision, holding that the task force’s members were unconstitutionally appointed and refusing to sever a provision of the law setting up the task force that the court held insulated the task force from supervision by the secretary of the Department of Health and Human Services. The appeals court, in a split with O’Connor, would have limited the relief to the parties in the case. As an appeals court ruling, however, that would be binding precedent for any future cases within the Fifth Circuit — including Louisiana, Mississippi, and Texas.
As such, the Justice Department in the Biden administration asked the Supreme Court to review the case and reverse the Fifth Circuit’s ruling about the Appointments Clause questions.
Granting review on January 10, the future of the case will be determined in part by the Trump administration, including its new leaders at HHS and the Justice Department. Among the complications will be the greatly expanded scope of a ruling against the government — for PrEP, but also for the dozens of other preventative care measures currently provided to patients for free under any insurance plans.
But now, after Mitchell successfully defended Donald Trump at the Supreme Court in Trump’s case to stop Colorado from kicking him off the ballot under the Fourteenth Amendment’s insurrection disqualification clause, Mitchell’s case is going to be before the Supreme Court in the Trump administration — just as when he filed the case in 2020.
The anti-trans sports ban
H.R. 28 was prioritized in the House Republicans’ rules package for the new session of Congress, as covered January 2 by Erin Reed at Erin in the Morning:
The fast-tracking of the bill meant the legislation was immediately sent to the floor for a vote; there were no committee hearings and no mark-up sessions to debate language in the bill.
In short, it’s not a careful way of law-making for any consequential legislation.
That shows in the text of H.R. 28. The deceptively short bill would subject trans kids to nationwide discrimination in law and could upend girls’ sports across the country. Here is the main element of the anti-trans bill:
The bill provides no more specificity on those terms, and there is no suggestion even made as to how schools are to enforce the requirement — leading to repeated Democratic warnings about the invasive potential of such legislation.
Republicans repeatedly referenced their new favorite meaningless phrase, "extreme gender ideology,” and pointed to conservative courts’ rejection of the Biden administration’s Title IX sex discrimination rule that included transgender protections, as well as Donald Trump’s win, as evidence that voters support the bill.
In fighting the ban, Rep. Alexandria Ocasio-Cortez spoke forcefully in opposition, telling the chamber, “Trans girls are girls,” after expressing incredulity at Republicans’ claimed concerns for women after years of voting against the Violence Against Women Act and opposing those same women’s choice of what to do with their own body.
After all of that, she said, they “now want to pretend today that they care about women.”
Regardless of what happens in the Senate, the hour of Republican time for debate — and the unanimity of Republicans in supporting the bill — provides plenty of evidence of the harm that the Republican House is ready and willing to inflict in 2025.
Efforts to ensure the Senate provides some measure of protection for trans people will be key this year and next, even as efforts to educate House members must be advanced.
Law Dork around the country
On January 9, I served as moderator for an impressive group of panelists discussing DEI and the First Amendment for an American Constitution Society event.
After an introduction from ACS’s Taonga Leslie, I was joined by Shalini Goel Agarwal, special counsel at Protect Democracy; Tona Boyd, the former associate director counsel at LDF, the NAACP Legal Defense Fund; and William Carter, professor and former dean at the Pittsburgh School of Law.
Check it out!
Closing my tabs
After a quick start to the week, here are the tabs I’m closing this Tuesday:
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