Right-Wing Lawyer Targeting PrEP Now Goes After Bisexuals

Anti-LGBTQ+ lawyers and their clients are arguing that antidiscrimination protections under the Supreme Court's Bostock ruling don't apply to bisexuals, who according to polls make up the largest proportion of the LGBTQ+ community.

Attorneys Jonathan Mitchell and Gene Hamilton are representing Braidwood Management, which is owned by anti-LGBTQ+ activist Steven Hotze, and Bear Creek Bible Church, both located in Texas, in a case seeking exemptions from nondiscrimination law for employers with religious objections.

They filed suit against the U.S. Equal Employment Opportunity Commission in federal court in 2018 and updated the complaint last year in light of the Bostock v. Clayton County ruling, in which the Supreme Court held in 2020 that Title VII of the U.S. Civil Rights Act of 1964, in outlawing sex discrimination, bans discrimination based on sexual orientation and gender identity.

Mitchell, a former Texas solicitor general, is well known for filing anti-LGBTQ+ cases and for crafting Texas's anti-abortion law. He recently brought a case on behalf of Braidwood Management arguing that paying for insurance covering PrEP drugs violates the employer's religious beliefs because it facilitates "homosexual behavior."

In the PrEP case, U.S. District Judge Reed O'Connor sided with Mitchell and Braidwood, saying that the federal government hadn't shown a compelling interest in requiring employer insurance plans to cover PrEP drugs, which prevent HIV transmission.

In a ruling last year, O'Connor also largely agreed with Braidwood and Bear Creek in their suit against the EEOC, but "sided with the federal government on two issues -- so-called bisexual conduct and certain transgender health care procedures," The Dallas Morning News reports. Mitchell and Hamilton filed a brief September 21 with the U.S. Court of Appeals for the Fifth Circuit contending that O'Connor was wrong on these counts. "According to their argument, an employer cannot fire a gay man for being attracted to men if it would not also fire a woman for being attracted to men," the Morning News notes. "But that same employer is in the clear if it discriminates equally against all bisexuals because it is not treating bi men and bi women differently, the lawyers argued."

They "also argued that the Bostock ruling gave employers the green light to fire a transgender worker for getting hormone therapy or gender-affirming surgery as long as they would fire a worker of the opposite sex for the same behavior," according to the paper.

The federal government is appealing O'Connor's ruling. It says Braidwood and Bear Creek did not have legal standing to challenge antidiscrimination protections and that O'Connor should not have ruled in favor of religious exemptions. It has taken issue with the plaintiffs' claims about discrimination against bisexuals as well.

"The district court properly recognized that it is impossible to define bisexuality without reference to both the employee's sex and the sex of the employee's partners," lawyers for the government wrote.

An LGBTQ+ rights lawyer who is not involved in the case was not impressed by Mitchell and Hamilton's argument.

"First, some perspective," Gregory Nevins, senior counsel and employment fairness project director at Lambda Legal, told The Advocate in an email. "In a sprawling opinion (spanning 55 pages of the Federal Supplement (3d ed)), their hand-picked judge agreed with almost every one of their arguments. Yet this one was a bridge too far. Rather than take a hint, or simply in recognition of greed being a deadly sin, they press on. Sigh. The discrimination that bisexuals experience in the workplace occurs overwhelmingly when they are in a same-sex relationship. 'Overwhelmingly' becomes 'exclusively' when we are talking about the plaintiffs in this case, religiously motivated employers, who last I checked encouraged people to be in different-sex relationships or celibate. And Bostock is pellucidly clear that discrimination against a man dating a man or a woman dating a woman is unlawful sex discrimination."