(Editor's note: We know it's no longer Women's History Month, but we still have a lot more to say! We'll be featuring a few more posts in April.)
When people think of women's rights, issues like the glass ceiling, sexual harassment, or reproductive freedom usually come to mind. At the ACLU, we continue to push for women's equality in these areas while also identifying and fighting new threats to civil liberties. The latest? Patents on human genes.
On Monday, the ACLU will be before the Court of Appeals for the Federal Circuit in Washington, D.C., to argue that human genes should not be patented. Arguing with us will be Acting Solicitor General Neal Katyal. That's right: the U.S. government has filed a friend-of-the-court brief concluding that patents on human genes issued by the Patent Office are invalid.
Over the last 20 years, the U.S. Patent Office has granted patents on human genes once they are "isolated," or removed, from the body and cell. BRCA1 and BRCA2, which are associated with hereditary breast and ovarian cancer, are just two of the approximately 20 percent of human genes that have been patented. Women and men who have certain mutations on these genes are much more likely to experience cancer in their lifetimes. For that reason, physicians and genetic counselors recommend genetic testing for some patients with a significant family or personal history of breast or ovarian cancers, so that they can more fully understand their risk of developing future cancers and to help inform medical decisions.
However, because a company called Myriad Genetics controls the patents on the BRCA1 and BRCA2 genes, there is only one laboratory in the United States that provides BRCA sequencing — Myriad's.
We filed a lawsuit challenging these patents on behalf of pathologists, geneticists, women's health organizations and patients. We argued that the patents are invalid because they cover natural phenomena, which the Supreme Court long has shielded from patenting. The federal district court agreed, in a landmark ruling that concluded, for the first time, that genes are not patentable subject matter because they are products of nature. Myriad has appealed.
As an ACLU attorney, I never expected to immerse myself in patent law. But the stakes are high for patients, scientific freedom, and the future of medicine. Because the patentholder has the exclusive right to examine and test a gene, gene patents essentially grant a monopoly over an entire area of scientific inquiry, including into cancers that affect far too many women. At a recent event organized by the Harvard Women's Law Association, two of the plaintiffs in the lawsuit spoke eloquently about how these patents affect women's and patients' rights.
ACLU clients Judy Norsigian (left) Lisbeth Ceriani (right) and Sandra Park at a the Harvard Law School event on March 9.
One of the plaintiffs in our lawsuit, Lisbeth Ceriani, shared her struggle to get tested. After she was diagnosed with cancer in both breasts, she was advised to get BRCA testing to help determine her risk for ovarian cancer. Her insurance company would cover the test if it was done through a contracted provider, but Myriad had refused to enter into a contract. Because Lisbeth could not afford to pay more than $3,000 out of pocket, and because the patents prevent others — like our clients Dr. Wendy Chung and Dr. Harry Ostrer — from offering testing to patients, she had been blocked from obtaining this important information about her own genes.
Judy Norsigian talked about other concerns shared by plaintiffs Boston Women's Health Book Collective (publisher of Our Bodies, Ourselves) and Breast Cancer Action. Both are concerned that patients cannot get a second opinion on their test results, an option that is integral to the medical standard of care. Furthermore, Myriad's refusal to share the data it has collected on BRCA1 and 2 mutations raises serious questions about whether it is undermining research and scientific progress.
These concerns have led several cancer and women's health organizations to support our case, including Facing Our Risk of Cancer Empowered, the , and the National Women's Health Network.
The American Medical Association, March of Dimes, AARP, and Nobel Prize-winning economist Joseph Stiglitz also have spoken out because they recognize that patents on genes create barriers to medical care and the development of true inventions, such as new tests and therapies.
In its friend-of-the-court brief rejecting the Patent Office's policy, the government stated that a gene that has simply been removed from the rest of the cell is not patentable:
"The chemical structure of native human genes is a product of nature, and it is no less a product of nature when that structure is 'isolated' from its natural environment than are cotton fibers that have been separated from cotton seeds or coal that has been extracted from the earth."
So we'll be back in court Monday, where the appeals court will hear oral arguments in the case. To learn more about what you can do, click here.
We're holding a month-long blog symposium on women's rights for Women's History Month. See all the blog posts here, and learn more about women's rights: Subscribe to our newsletter, , and .
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Press ReleaseOct 2024
LGBTQ Rights
+2 Issues
At Supreme Court, Tennessee Seeks to Expand Reach of Dobbs to Ban Health Care for Transgender YouthAt Supreme Court, Tennessee Seeks to Expand Reach of Dobbs to Ban Health Care for Transgender Youth
WASHINGTON – In their brief defending the state’s ban on gender-affirming medical care for transgender youth, Tennessee Attorney General Jonathan Skrmetti has asked the Supreme Court to expand its ruling overturning Roe v. Wade and allow the state to target transgender people’s autonomy over their own bodies, too. In U.S. v. Skrmetti, three Tennessee transgender youth and their families are challenging a state law that prohibits medical providers from prescribing medical treatments to transgender youth, such as puberty blockers and hormone replacement therapies, that are allowed for minors who are not transgender. Represented by the American Civil Liberties Union, the ACLU of Tennessee, Lambda Legal, and Akin Gump Strauss Hauer & Feld LLP, the families argue that the ban violates their Equal Protection rights under the 14th Amendment. In the brief filed today, Tennessee relies on the Supreme Court’s 2022 ruling in Dobbs v. Jackson Whole Women’s Health in an attempt to justify its ban on gender-affirming health care for transgender people. The brief cites to Dobbs at least 10 times in sweeping arguments to justify government sex discrimination. “We’ve seen just how far extreme politicians will push to deny us our reproductive freedom, from banning abortion to threatening IVF to even threatening to put doctors in jail for providing emergency care, with deadly consequences for women’s lives,” said Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project. “The same politicians who are trying to control women have now set their sights on transgender people and their families and are trying to control their bodies and lives. Allowing politicians to continue down this road could hold severe implications for the freedom of all people to decide what is right for their own body.” Tennessee claims that their ban on gender-affirming care does not discriminate on the basis of sex even though it bans minors of one sex from accessing health care it allows to members of another sex. A transgender girl is barred from taking doctor-prescribed estrogen because Tennessee considers it “inconsistent” with her birth-assigned sex of male but a cisgender girl with a birth-assigned sex of female is permitted to take estrogen for any purpose including to affirm her female gender identity. “Since this Project’s founding by Justice Ruth Bader Ginsburg, we have adamantly challenged efforts to limit who we can be based on our gender or ability to bear children,” said Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project. “Tennessee’s attempt to limit who young people can become based on their sex shares a through-line with our nation’s history of subjugating women in the name of biology. The fight for each of us to live fully and authentically must include trans people. There is no ‘transgender’ exception to the U.S. Constitution.” In April 2023, the American Civil Liberties Union, the ACLU of Tennessee, Lambda Legal, and Akin Gump Strauss Hauer & Feld LLP sued the state of Tennessee to block S.B. 1, which prohibits medical providers from prescribing medical treatments to transgender youth, such as puberty blockers and hormone replacement therapies, that it exempts for minors who are not transgender. Following a decision by the Sixth Circuit Court of Appeals, S.B. 1 took effect in July 2023. Since 2021, 24 states have banned hormone therapies for transgender youth. “Laws like Tennessee’s are not benign regulations of medical care; they are discriminatory efforts to exclude transgender people from the protections of the Constitution,” said Chase Strangio, co-director of the ACLU’s LGBTQ & HIV Project. “These bans represent a dangerous and discriminatory affront to the well-being of transgender youth across the country and their constitutional right to equal protection under the law.” -
Press ReleaseSep 2024
Women's Rights
Civil Rights Groups Tell Federal Appeals Court that Protections for Pregnant Workers Cover Abortion CareCivil Rights Groups Tell Federal Appeals Court that Protections for Pregnant Workers Cover Abortion Care
WASHINGTON, D.C. - On Friday, a broad coalition of labor, workers’ rights, and gender justice organizations — led by the American Civil Liberties Union (ACLU), the ACLU of Arkansas, and the National Women’s Law Center (NWLC) — filed an amicus brief in the U.S. Court of Appeals for the Eighth Circuit in support of the Equal Employment Opportunity Commission’s (EEOC) regulations implementing the landmark Pregnant Workers Fairness Act (PWFA), including the regulations’ explicit protection for workers who have abortions. The PWFA, which took effect last year, was the culmination of a decade-long campaign to secure access to reasonable accommodations for workers with temporary limitations caused by “pregnancy, childbirth, and related medical conditions.” The EEOC’s regulations provide comprehensive guidance to workers, employers, and the courts about the statute’s range of protections, including job-protected time off for medical treatment and recovery. The amicus brief filed in the U.S. Court of Appeals for the Eighth Circuit supports the EEOC in a challenge by 17 red states that are trying to block the PWFA regulations’ coverage of accommodations for abortion-related care. In June, the U.S. District Court for the Eastern District of Arkansas dismissed the states’ challenge, and the states appealed to the Eighth Circuit. Their appeal includes a request that the Eighth Circuit issue a preliminary injunction of the regulations’ abortion provisions. The ACLU-NWLC brief details the federal law’s longstanding ban on discrimination against workers who obtain abortions – protection the PWFA intended to continue. The brief also documents the accounts of workers whose health and jobs were put at risk when their employers denied them accommodations, including time off, for abortion care. Such accounts illustrate the urgent need for clarity with respect to the PWFA’s coverage of abortion-related accommodations, and the devastating medical and financial consequences if such accommodations are denied. “Abortion has long been recognized as part of the full spectrum of workers’ pregnancy-related needs that are protected by the law, ” said Gillian Thomas, senior staff attorney at the ACLU’s Women's Rights Project. “The states’ challenge has created uncertainty, and seeks to deprive workers of essential, job-protected time off for abortion care, posing significant health risks and leading to forced pregnancies. The EEOC regulations are vital to ensure pregnant workers don't have to choose between their health and their jobs.” “Extremist politicians are demonstrating repeatedly their willingness to risk women’s health to advance their anti-abortion agenda,” said Gaylynn Burroughs, vice president for Education and Workplace Justice at the National Women’s Law Center (NWLC). “Let’s be clear: abortion care is pregnancy-related care, and stripping essential protections for abortion from the PWFA would endanger the health and economic security of pregnant workers.” “The Pregnant Workers Fairness Act and its regulations provide a lifeline for workers who need accommodations during the most critical periods of their lives. Attempting to strip away these protections, particularly for abortion-related needs, is an affront to the rights and well-being of pregnant workers,” said John Williams, legal director of the ACLU of Arkansas. “All people in all aspects of pregnancy, including abortion, should be treated with the care and consideration they deserve. We stand firmly with the EEOC in defending these essential protections.” A copy of the brief can be found here. -
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Press ReleaseJul 2024
Women's Rights
LGBTQ Rights
ACLU Condemns House Measure Against Department of Education Title IX RuleACLU Condemns House Measure Against Department of Education Title IX Rule
WASHINGTON – Today, the U.S. House of Representatives voted to pass H.J. Res. 165, a Congressional Review Act resolution disapproving of the U.S. Department of Education’s final Title IX rule providing guidance to schools on protecting students from sexual harassment, pregnancy discrimination, anti-LGBTQ discrimination, and other forms of sex discrimination. Mike Zamore, ACLU National Policy and Government Affairs Director, had the following response: “Today’s vote to completely repeal the Title IX rule takes a sledgehammer to the government’s ability to ensure that all students have the opportunity to learn free from sex discrimination and harassment. Stripping critical civil rights protections from LGBTQ students and students who are pregnant and parenting - as this resolution would do - is something that all members of Congress should strongly oppose. This is also not how Congress should act to protect the rights of students who face disciplinary action under Title IX because passing this resolution would prevent future rulemaking to ensure fair processes in school disciplinary proceedings.” The ACLU’s letter urging a “No” vote on H.J. Res. 165 can be found here: /documents/aclu-urges-no-vote-on-h-j-res-165 The ACLU’s statement on the final Title IX rule can be found here: /press-releases/155090