Anti-LGBTQ2S+ judge rules that U.S. companies should not have to provide employees with PrEP

The full implications of this ruling are currently unclear, with contraceptives also on the line

A federal judge in Texas just ruled that Christian-owned medical companies are no longer required by the government to provide employees with HIV medication on the basis of “religious freedom.”

On Wednesday, Judge Reed O’Connor of the United States District Court for the Northern District of Texas ruled that private, religious corporations should not be required to cover PrEP under the U.S. Constitution and the Religious Freedom Restoration Act (RFRA), which prohibits the government from interfering with individuals’ religious practices.

The verdict follows a lawsuit brought by the medical company Braidwood Management, which objected to employee health insurance coverage of HIV-prevention medication. 

“Braidwood has shown that the PrEP mandate substantially burdens its religious exercise,” O’Connor wrote in his ruling. “The burden thus shifts to Defendants to show that the PrEP mandate furthers a compelling governmental interest and is the least restrictive means of furthering that interest. Defendants have not carried that burden.”

In the suit, plaintiff Steven Hotze stated his belief that PrEP “facilitates and encourages homosexual behaviour, intravenous drug use and sexual activity outside of marriage between one man and one woman.”

Hotze is a longtime conservative activist who fought to overturn Houston’s inclusive non-discrimination ordinance in 2014, and once claimed that shooting queer people was the best way to combat the HIV epidemic, according to Mother Jones. He was recently indicted over his alleged involvement in a voter fraud investigation that resulted in aggravated assault. 

His lawyer, Jonathan Mitchell, has been credited with crafting a Texas abortion law that bans the practice as early as six weeks into a pregnancy.

The full implications of the Texas ruling are currently unclear, with O’Connor set to decide how broadly the ruling will apply and whether or not it will extend to the issue of private businesses covering contraceptives after briefs are filed at the end of this week.

As the case continues through the courts, LGBTQ2S+ advocacy groups condemned O’Connor’s ruling.

“We are not surprised by Judge O’Connor’s decision,” Carl Schmid, executive director of the HIV+Hepatitis Policy Institute, told Xtra in a written statement. “He has a long history of issuing rulings against the Affordable Care Act and LGBTQ2s+ individuals, and we expect the case to be successfully appealed as has been the case with his previous discriminatory decisions. We as a nation must do all we can to prevent HIV, no matter whom it may impact.”

Black Americans and men who have sex with men of all races are the two demographics that remain most at risk of contracting HIV, according to the Centers for Disease Control (CDC). Of the 38,739 new HIV diagnoses in 2018, 70 percent of newly diagnosed HIV transmissions were attributed to male-male sexual activity. Black Americans accounted for 62 percent of individuals who became HIV-positive during that time span.

 

But despite these realities, HIV-prevention medications remain difficult to get for many populations in the U.S., with Black MSM far less likely than their white queer male counterparts to be prescribed PrEP.

“Medication to prevent the transmission of HIV is less accessible to Black same-gender-loving men like me,” reads a statement from Dr. David J. Johns, executive director of the National Black Justice Coalition (NBJC). “Ending the HIV epidemic should not be a gay thing, but a human thing.”

NBJC encourages impacted employees to pursue other options, such as insurance carriers that provide free treatment, as well as the pharmaceutical companies that do produce PrEP, according to Johns.

This isn’t the first ruling by O’Connor against LGBTQ2S+ individuals under the guise of “religious freedom.” In 2019, the district judge blocked trans protections in the Affordable Care Act by overturning an Obama-era non-discrimination policy, which he argued violated RFRA. In 2015, he halted the Obama administration’s plans to expand coverage of medical leave to same-sex couples, although the injunction was dissolved following the nationwide legalization of same-sex marriage a year later. 

O’Connor also tried gutting the ACA altogether in 2018, ruling it unconstitutional in a widely criticized decision that was later reversed by the Supreme Court. 

While his newest decision could be appealed and overturned, it’s just one of many anti-LGBTQ2S+ developments in courtrooms and state legislatures across the U.S. this year. In 2022, more than 300 discriminatory bills have been filed in at least 23 states, according to the Human Rights Campaign. Many of these focus on limiting trans youth access to medical care and sports participation in school.

Advocates warned that O’Connor’s ruling could further impact youth who already face having their healthcare stripped away.

“This country has headed too far down a dangerous path of violence and bigotry toward LGBTQ2S+ youth,” said Diana Thu-Thao Rhodes, vice president of Policy, Partnerships and organizing at Advocates for Youth, in a statement. “Every day, their very lives are endangered by our government’s choice to endorse utterly vile laws and policies. Taking PrEP access away is truly a crime—and hiding behind religion to get government support for homophobia and transphobia is as low as it gets.”

Ursula Muñoz-Schaefer

Ursula Muñoz S. (she/her) is a freelance writer and reporter based in Puerto Rico. She speaks English, Spanish and German and has previously written for news outlets in South Florida and West Texas. Her work has been recognized by Florida's Society of Professional Journalists.

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