A new Supreme Court ruling has ominous consequences for LGBTQ discrimination at Marietta Memorial Hospital. DaVita

At first glance, the decision of the Supreme Court in Marietta Memorial Hospital v. DaVita it has little to do with LGBTQ rights or traditional forms of discrimination more broadly. Judgment of the Court 7-2 c Marietta closely reads a federal law designed to limit the cost of Medicare by transferring certain costs from private health plans to the federal government in the process.

But as Judge Elena Kagan explains in a convincingly dissenting opinion, Marietta it can have dire consequences for victims of discrimination against LGBTQ people, as well as for some victims of religious and other forms of discrimination. Read aloud, Marietta the solution could provide both public organizations and private business with a workaround that they can use to avoid triggering anti-discrimination laws – even when involved in unlawful discrimination.

Medicare is generally considered a single-payer health plan for the elderly, but it also extends coverage to hundreds of thousands of Americans with end-stage kidney disease – an expensive condition that requires patients to either undergo dialysis or receive a kidney transplant to continue living.

However, some patients with this disease also have private health coverage through a health plan provided by their employer or through another private insurer. A federal law passed in the early 1980s stipulates that for these individuals, Medicare will only cover the cost of kidney dialysis, which is not yet covered by a private insurer.

Federal law also provides that a private health planmay not differ in the benefits it provides between persons with end-stage renal disease and other persons covered by such a plan on the basis of the presence of end-stage renal disease, the need for renal dialysis or in any other way. The idea is to prevent private plans from offering such meager coverage of kidney care that Medicare will bear all the costs of dialysis.

However, in Marietta, a health plan provided by the employer provides “relatively limited reimbursement rates” to dialysis providers, in alleged breach of the law, which prohibits private plans from discriminating against people with end-stage kidney disease. Judge Brett Cavanaugh’s opinion of the Court reads federal status closely, arguing that as long as the health plan provides “the same benefits of dialysis, whether or not a person has end-stage renal disease,” it is not against federal law.

The problem with this possession, as Kagan explains in disagreement, is that “outpatient dialysis is an almost perfect substitute for end-stage renal disease.” According to Kagan, 97% of people diagnosed with end-stage kidney disease – all those who do not receive preventive kidney transplantation – undergo dialysis. And as many as 99.5 percent of “dialysis outpatients have or develop end-stage renal disease.”

So, if an insurer refuses to cover dialysis, he practically refuses to cover end-stage kidney patients.

This leads us to see why this decision could have dire consequences for LGBTQ Americans. The Supreme Court has long considered this laws targeting “homosexual behavior” themselves are a form of anti-LGBTQ discrimination. This means that the state cannot circumvent laws prohibiting discrimination against LGBTQ by targeting same-sex sexual activity.

Just as the need for dialysis is an “almost perfect substitute” for identifying people with end-stage renal disease, same-sex sexual activity is a powerful tool for identifying people who are gay or bisexual. Thus, if the logic of Marietta applies to laws prohibiting LGBTQ discrimination – ie if governments, employers and other institutions that may wish to discriminate on the basis of sexual orientation are allowed to engage in activities that are closely related to gay or bisexuality – these laws can become meaningless.

Cavanaugh’s reasoning Marietta can have profound consequences for LGBTQ rights.

Various federal and state laws prohibit discrimination on certain protected grounds. Title VII of the Civil Rights Act 1964, for example, prohibits discrimination in employment on the grounds of “race, color, religion, sex or national origin. ” IN Bostock vs.. Clayton County (2020), the Court has ruled that discrimination on the grounds of sexual orientation or gender identity is a form of sex discrimination prohibited by Title VII and similar laws.

But what happens if an organization discriminates on the basis of activities that are closely related to race, gender, or some other protected trait? It depends on how closely this activity is related to the trait. The Court has also given different answers to this question at different points in its history.

The low assessment of the Court’s decisions prohibiting discrimination on the basis of activities closely linked to a protected trait is its 1974 decision. Geduldig v. Ayelo. Geduldig Considers that discrimination on the grounds of pregnancy is not a form of unlawful discrimination on the grounds of sex, although the ability to conceive is closely linked to being a woman.

Similar to Cavanaugh’s opinion Marietta Declares that the health plan does not discriminate against people with renal insufficiency, as long as it provides the same benefits of dialysis to all its clients, Geduldig considers that discrimination on the grounds of pregnancy does not constitute discrimination against women.

“The lack of evidence that the distinctions involving pregnancy are merely pretexts intended to discriminate severely against members of either sex,” the Court said in a statement. Geduldig“Legislators are constitutionally free to include or exclude pregnancy” in broader laws protecting workers with health problems.

Four years later GeduldigCongress adopted the Law on Discrimination in Pregnancywhich provides that labor discrimination “based on pregnancy, childbirth or related medical conditions” is a form of sex discrimination that violates Title VII. And subsequent Supreme Court rulings are undermining GeduldigThe assumption that discrimination based on an activity closely related to a protected trait is legal.

Kagan notes two such decisions in it Marietta disagreement. One is the remarkable ruling of the LGBTQ Court Lawrence v. Texas (2003), which repealed a Texas law banning certain sexual acts. Among other things, Lawrence explained that “when homosexual behavior is criminal under state law, this declaration is in itself an invitation to discriminate against homosexuals in both the public and private spheres.”

In case Lawrence left any doubts on this issue, the subsequent judgment of the Court in Christian Law Society v. Martinez (2010) clarified that laws prohibiting discrimination based on sexual orientation also prohibit discrimination against people engaging in sexual activity of the same sex. As Judge Ruth Bader Ginsberg wrote of her trial in Martinez“Our decisions have refused to differentiate between status and behavior in this context.”

Similarly, the Court recognized in Bray v. Women’s Health Clinic in Alexandria (1993) that when an institution focuses on activities that “engage exclusively or mainly in a certain class of people”, then “the intention to be unfavorable to that class can easily be assumed”. As Judge Antonin Scalia wrote Bray“A tax on wearing yokes is a tax on Jews.”

In addition, this rule applies, although there are some cases where non-Jews wear yarmulkes (or, in this sense, when people engage in sexual activity with people of the same sex). As Kagan writes in it Marietta disagreeingly, “the tax on yarms remains a tax on Jews, even if friends of other religions can sometimes bet on a bar mitzvah.”

Of course, previous Court rulings have not been precise on how closely an activity must be linked to a protected feature before discrimination against people involved in that activity becomes a form of unlawful discrimination. Although Bray acknowledged that the Yarmul tax would be illegally discriminating against Jews, Bray too Rejected the thesis that since “voluntary abortion is an activity performed only by women, cheating de facto to discriminate against women as a class. (Scalia did not have particularly enlightened views on transgender or non-binary individuals.)

I quote from Geduldigwrote Scalia Bray that “while it is true … that only women can become pregnant, it does not follow that any legislative classification on pregnancy is a gender-based classification” – including classifications on patients who want to terminate their pregnancies.

But, as Kagan points out in it Marietta Disagreement, identifying people who need outpatient dialysis is an extremely good tool for identifying people who have end-stage kidney disease. Indeed, it is probably as good as a proxy, as identifying people who are gay is a substitute for identifying people who are gay or bisexual.

Because Marietta is a potentially serious blow to LGBTQ rights, as it allows for differentiated treatment based on behavior (receiving dialysis), which is an almost perfect proxy for status (with end-stage kidney disease) that is protected by law. This may undermine the Court’s conduct Lawrence and Martinez that anti-discrimination law does not distinguish between the “status” of being gay or bisexual and the “behavior” of having sex with people of the same sex.

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