U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-01630-JEB

JURY,TYPE-E

WHITMAN-WALKER CLINIC, INC. et al v. U.S.

Date Filed: 06/22/2020

DEPARTMENT OF HEALTH AND HUMAN SERVICES et Jury Demand: None

al

Nature of Suit: 899 Administrative

Assigned to: Judge James E. Boasberg

Procedure Act/Review or Appeal of

Cause: 05:551 Administrative Procedure Act

Agency Decision

Jurisdiction: U.S. Government

Defendant

Movant

DE FACTO ATTORNEY GENERAL

represented by DE FACTO ATTORNEY GENERAL c/o Gregory Degeyter, Esq. 9 Music Square South Nashville, TN 37203 (615) 500-4411 PRO SE

Movant SPECIAL FORCES OF LIBERTY

represented by SPECIAL FORCES OF LIBERTY c/o Chris Sevier, Esq. 4301 50th St. Suite 300, #2009 Washington, DC 20816 (615) 500-4411 PRO SE

Movant
ALLIANCE OF BLACK AND WHITE EX-GAY AND EX-TRANS

Movant
CENTER FOR GARDEN STATE FAMILIES

Movant
COALITION OF DOCTORS DEFENDING REPARATIVE THERAPY

Movant
COALITION OF MULTI-RACIAL PASTORS

Movant

WARRIORS FOR CHRIST Amicus AARP
Amicus AARP FOUNDATION
Amicus SAGE
Amicus HOUSE OF REPRESENTATIVES
Plaintiff WHITMAN-WALKER CLINIC, INC. doing business as WHITMAN-WALKER HEALTH

represented by Kelly Riseden Bagby AARP FOUNDATION LITIGATION 601 E Street, N.W. District of Columbia, DC 20049 202-434-2103 Email: kbagby@aarp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly Riseden Bagby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly Riseden Bagby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas N. Letter U.S. HOUSE OF REPRESENTATIVES Office of General Counsel 219 Cannon House Office Building Washington, DC 20515 (202) 225-9700 Email: douglas.letter@mail.house.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Josephine T. Morse U.S. HOUSE OF REPRESENTATIVES Office of General Counsel 219 Cannon House Office Building Washington, DC 20515 (202) 225-9700 Email: jodie.morse@mail.house.gov ATTORNEY TO BE NOTICED
represented by Omar Francisco Gonzalez-Pagan LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 120 Wall Street 19th Floor

New York, NY 10005 212-809-8585 Email: ogonzalezpagan@lambdalegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Solomon Charles LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 120 Wall Street 19th Floor New York, NY 10005 212-809-8585 Email: ccharles@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 65 E. Wacker Place Ste 2000 Chicago, IL 60601 312-663-4413 Fax: 312-663-4307 Email: jgliksberg@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Karen Loewy LAMBDA LEGAL DEFENSE & EDUCATION FUND 120 Wall Street, 19th floor New York, NY 10005 212-809-8585 Email: kloewy@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Khristoph Becker STEPTOE & JOHNSON LLP 1114 Avenue of the Americas Ste Floor 35 New York, NY 10036 212-506-3900 Email: kbecker@steptoe.com

Plaintiff TRANSLATIN@ COALITION

PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Joy Edelstein STEPTOE & JOHNSON LLP One Market Plaza Spear Tower Suite 3900 San Francisco, CA 94105 415-365-6770 Fax: 415-365-6670 Email: ledelstein@steptoe.com PRO HAC VICE ATTORNEY TO BE NOTICED
Michael A. Vatis STEPTOE & JOHNSON, LLP 1114 Avenue of the Americas 1114 Avenue of the Americas 35th Floor New York, NY 10036 212-506-3927 Fax: 212-506-3950 Email: mvatis@steptoe.com ATTORNEY TO BE NOTICED
Johanna Dennehy STEPTOE & JOHNSON LLP 1330 Connecticut Avenue, NW Washington, DC 20036 202-429-5515 Email: jdennehy@steptoe.com ATTORNEY TO BE NOTICED
represented by Omar Francisco Gonzalez-Pagan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Solomon Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE

Plaintiff LOS ANGELES LGBT CENTER

ATTORNEY TO BE NOTICED
Karen Loewy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khristoph Becker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Joy Edelstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael A. Vatis (See above for address) ATTORNEY TO BE NOTICED
Johanna Dennehy (See above for address) ATTORNEY TO BE NOTICED
represented by Omar Francisco Gonzalez-Pagan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Solomon Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen Loewy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khristoph Becker (See above for address)

Plaintiff
BRADBURY-SULLIVAN LGBT COMMUNITY CENTER

PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Joy Edelstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael A. Vatis (See above for address) ATTORNEY TO BE NOTICED
Johanna Dennehy (See above for address) ATTORNEY TO BE NOTICED
represented by Omar Francisco Gonzalez-Pagan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Solomon Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen Loewy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khristoph Becker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Joy Edelstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael A. Vatis

Plaintiff AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC. doing business as GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY
Plaintiff AGLP: THE ASSOCIATION OF

(See above for address) ATTORNEY TO BE NOTICED
Johanna Dennehy (See above for address) ATTORNEY TO BE NOTICED
represented by Omar Francisco Gonzalez-Pagan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Solomon Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen Loewy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khristoph Becker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Joy Edelstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael A. Vatis (See above for address) ATTORNEY TO BE NOTICED
Johanna Dennehy (See above for address) ATTORNEY TO BE NOTICED
represented by Omar Francisco Gonzalez-Pagan

LGBTQ PSYCHIATRISTS
Plaintiff SARAH HENN MD, MPH

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Solomon Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen Loewy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khristoph Becker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Joy Edelstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael A. Vatis (See above for address) ATTORNEY TO BE NOTICED
Johanna Dennehy (See above for address) ATTORNEY TO BE NOTICED
represented by Omar Francisco Gonzalez-Pagan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Solomon Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
RANDY PUMPHREY D.MIN, LCC, BCC

Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen Loewy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khristoph Becker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Joy Edelstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael A. Vatis (See above for address) ATTORNEY TO BE NOTICED
Johanna Dennehy (See above for address) ATTORNEY TO BE NOTICED
represented by Omar Francisco Gonzalez-Pagan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Solomon Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen Loewy (See above for address) PRO HAC VICE

Plaintiff
ROBERT BOLAN MD

ATTORNEY TO BE NOTICED
Khristoph Becker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Joy Edelstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael A. Vatis (See above for address) ATTORNEY TO BE NOTICED
Johanna Dennehy (See above for address) ATTORNEY TO BE NOTICED
represented by Omar Francisco Gonzalez-Pagan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Solomon Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen Loewy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khristoph Becker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Joy Edelstein (See above for address)

Plaintiff
WARD CARPENTER MD

PRO HAC VICE ATTORNEY TO BE NOTICED
Michael A. Vatis (See above for address) ATTORNEY TO BE NOTICED
Johanna Dennehy (See above for address) ATTORNEY TO BE NOTICED
represented by Omar Francisco Gonzalez-Pagan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Solomon Charles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jamie Avra Gliksberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen Loewy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khristoph Becker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laura Joy Edelstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael A. Vatis (See above for address) ATTORNEY TO BE NOTICED
Johanna Dennehy (See above for address)

V. Defendant UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES
Defendant ALEX M. AZAR, II in his official capacity as Secretary of U.S. Department of Health and Human Services,

ATTORNEY TO BE NOTICED
represented by Liam Holland U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Room 11318 Washington, DC 20530 202-514-4964 Email: liam.c.holland@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Kerwin Lane , III U.S. DEPARTMENT OF JUSTICE Civil Division 950 Pennsylvania Avenue, NW Ste Main 3138 Washington, DC 20530 202-305-7920 Email: william.lane2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan Landrum von Bokern U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Washington, DC 20005 202-305-7919 Email: Jordan.L.Von.Bokern2@usdoj.gov ATTORNEY TO BE NOTICED
represented by Liam Holland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Kerwin Lane , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant ROGER SEVERINO in his official capacity as Director, Office for Civil Rights, U.S. Department of Health and Human Services
Defendant SEEMA VERMA in her official capacity as Administrator for the Centers for Medicare and Medicaid Services, U.S. Department of Health and Human Services

Jordan Landrum von Bokern (See above for address) ATTORNEY TO BE NOTICED
represented by Liam Holland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Kerwin Lane , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan Landrum von Bokern (See above for address) ATTORNEY TO BE NOTICED
represented by Liam Holland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Kerwin Lane , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan Landrum von Bokern (See above for address) ATTORNEY TO BE NOTICED

Date Filed

#

06/22/2020

1

Docket Text
COMPLAINT against ALEX M. AZAR, II, ROGER SEVERINO, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, SEEMA VERMA ( Filing fee $ 400 receipt number ADCDC-7253108) filed by SARAH HENN, MD, MPH, BRADBURYSULLIVAN LGBT COMMUNITY CENTER, RANDY PUMPHREY, D.MIN, LCC, BCC, WARD CARPENTER, MD, LOS ANGELES LGBT CENTER, ROBERT BOLAN, MD, AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC. d/b/a GLMA: HEALTH PROFESSIONALS ADVANCING LGBTQ EQUALITY, THE TRANSLATIN@ COALITION, WHITMANWALKER CLINIC, Inc. d/b/a WHITMAN-WALKER HEALTH,

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AGLP: THE ASSOCIATION OF LGBTQ PSYCHIATRISTS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Civil Cover Sheet, # 4 Summons U.S. Department of Health and Human Services, # 5 Summons Alex M. Azar II, # 6 Summons Roger Severino, # 7 Summons Seema Verma, # 8 Summons U.S. Attorney General, # 9 Summons U.S. Attorney for the District of Columbia)(Dennehy, Johanna) (Entered: 06/22/2020)
2 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC. d/b/a GLMA: HEALTH PROFESSIONALS ADVANCING LGBTQ EQUALITY (Dennehy, Johanna) (Entered: 06/22/2020)
3 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by BRADBURY-SULLIVAN LGBT COMMUNITY CENTER (Dennehy, Johanna) (Entered: 06/22/2020)
4 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by LOS ANGELES LGBT CENTER (Dennehy, Johanna) (Entered: 06/22/2020)
5 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by THE TRANSLATIN@ COALITION (Dennehy, Johanna) (Entered: 06/22/2020)
6 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by WHITMAN-WALKER CLINIC, Inc. d/b/a WHITMAN-WALKER HEALTH (Dennehy, Johanna) (Entered: 06/22/2020)
7 NOTICE of Fed. R. Civ. P. 7.1 Disclosure Statement by THE TRANSLATIN@ COALITION (Dennehy, Johanna) (Entered: 06/22/2020)
8 NOTICE of Fed. R. Civ. P. 7.1 Disclosure Statement by BRADBURYSULLIVAN LGBT COMMUNITY CENTER (Dennehy, Johanna) (Entered: 06/22/2020)
9 NOTICE of Fed. R. Civ. P. 7.1 Disclosure Statement by AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC. d/b/a GLMA: HEALTH PROFESSIONALS ADVANCING LGBTQ EQUALITY (Dennehy, Johanna) (Entered: 06/22/2020)
10 NOTICE of Fed. R. Civ. P. 7.1 Disclosure Statement by LOS ANGELES LGBT CENTER (Dennehy, Johanna) (Entered: 06/22/2020)
11 NOTICE of Fed. R. Civ. P. 7.1 Disclosure Statement by WHITMANWALKER CLINIC, Inc. d/b/a WHITMAN-WALKER HEALTH (Dennehy, Johanna) (Entered: 06/22/2020)
12 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Laura J.

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Edelstein, Filing fee $ 100, receipt number ADCDC-7254978. Fee Status: Fee Paid. by AGLP: THE ASSOCIATION OF LGBTQ PSYCHIATRISTS, AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC. d/b/a GLMA: HEALTH PROFESSIONALS ADVANCING LGBTQ EQUALITY, ROBERT BOLAN, MD, BRADBURY-SULLIVAN LGBT COMMUNITY CENTER, WARD CARPENTER, MD, SARAH HENN, MD, MPH, LOS ANGELES LGBT CENTER, RANDY PUMPHREY, D.MIN, LCC, BCC, THE TRANSLATIN@ COALITION, WHITMANWALKER CLINIC, Inc. d/b/a WHITMAN-WALKER HEALTH (Attachments: # 1 Declaration of Laura J. Edelstein, # 2 Text of Proposed Order)(Dennehy, Johanna) (Entered: 06/22/2020)
13 MOTION for Leave to Appear Pro Hac Vice :Attorney NameKhristoph A. Becker, Filing fee $ 100, receipt number ADCDC7255109. Fee Status: Fee Paid. by AGLP: THE ASSOCIATION OF LGBTQ PSYCHIATRISTS, AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC. d/b/a GLMA: HEALTH PROFESSIONALS ADVANCING LGBTQ EQUALITY, ROBERT BOLAN, MD, BRADBURY-SULLIVAN LGBT COMMUNITY CENTER, WARD CARPENTER, MD, SARAH HENN, MD, MPH, LOS ANGELES LGBT CENTER, RANDY PUMPHREY, D.MIN, LCC, BCC, THE TRANSLATIN@ COALITION, WHITMANWALKER CLINIC, Inc. d/b/a WHITMAN-WALKER HEALTH (Attachments: # 1 Declaration of Khristoph A. Becker, # 2 Text of Proposed Order)(Dennehy, Johanna) (Entered: 06/22/2020)
14 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Omar Gonzalez-Pagan, Filing fee $ 100, receipt number ADCDC-7255804. Fee Status: Fee Paid. by AGLP: THE ASSOCIATION OF LGBTQ PSYCHIATRISTS, AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC. d/b/a GLMA: HEALTH PROFESSIONALS ADVANCING LGBTQ EQUALITY, ROBERT BOLAN, MD, BRADBURY-SULLIVAN LGBT COMMUNITY CENTER, WARD CARPENTER, MD, SARAH HENN, MD, MPH, LOS ANGELES LGBT CENTER, RANDY PUMPHREY, D.MIN, LCC, BCC, THE TRANSLATIN@ COALITION, WHITMANWALKER CLINIC, Inc. d/b/a WHITMAN-WALKER HEALTH (Attachments: # 1 Declaration of Omar Gonzalez-Pagan, # 2 Text of Proposed Order)(Dennehy, Johanna) (Entered: 06/22/2020)
15 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Karen L. Loewy, Filing fee $ 100, receipt number ADCDC-7255839. Fee Status: Fee Paid. by AGLP: THE ASSOCIATION OF LGBTQ PSYCHIATRISTS, AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC. d/b/a GLMA: HEALTH PROFESSIONALS ADVANCING LGBTQ EQUALITY, ROBERT BOLAN, MD, BRADBURY-SULLIVAN LGBT COMMUNITY CENTER, WARD CARPENTER, MD, SARAH HENN, MD, MPH, LOS ANGELES LGBT CENTER, RANDY PUMPHREY, D.MIN,

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06/23/2020
06/24/2020 06/24/2020 06/26/2020 06/29/2020 06/29/2020

LCC, BCC, THE TRANSLATIN@ COALITION, WHITMANWALKER CLINIC, Inc. d/b/a WHITMAN-WALKER HEALTH (Attachments: # 1 Declaration of Karen L. Loewy, # 2 Text of Proposed Order)(Dennehy, Johanna) (Entered: 06/22/2020)
16 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Carl S. Charles, Filing fee $ 100, receipt number ADCDC-7255870. Fee Status: Fee Paid. by AGLP: THE ASSOCIATION OF LGBTQ PSYCHIATRISTS, AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC. d/b/a GLMA: HEALTH PROFESSIONALS ADVANCING LGBTQ EQUALITY, ROBERT BOLAN, MD, BRADBURY-SULLIVAN LGBT COMMUNITY CENTER, WARD CARPENTER, MD, SARAH HENN, MD, MPH, LOS ANGELES LGBT CENTER, RANDY PUMPHREY, D.MIN, LCC, BCC, THE TRANSLATIN@ COALITION, WHITMANWALKER CLINIC, Inc. d/b/a WHITMAN-WALKER HEALTH (Attachments: # 1 Declaration of Carl S. Charles, # 2 Text of Proposed Order)(Dennehy, Johanna) (Entered: 06/22/2020)
17 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jamie Gliksberg, Filing fee $ 100, receipt number ADCDC-7260338. Fee Status: Fee Paid. by AGLP: THE ASSOCIATION OF LGBTQ PSYCHIATRISTS, AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC. d/b/a GLMA: HEALTH PROFESSIONALS ADVANCING LGBTQ EQUALITY, ROBERT BOLAN, MD, BRADBURY-SULLIVAN LGBT COMMUNITY CENTER, WARD CARPENTER, MD, SARAH HENN, MD, MPH, LOS ANGELES LGBT CENTER, RANDY PUMPHREY, D.MIN, LCC, BCC, THE TRANSLATIN@ COALITION, WHITMANWALKER CLINIC, Inc. d/b/a WHITMAN-WALKER HEALTH (Attachments: # 1 Declaration of Jamie Gliksberg, # 2 Text of Proposed Order)(Dennehy, Johanna) (Entered: 06/23/2020)
Case assigned to Judge James E. Boasberg. (zmc) (Entered: 06/24/2020)
18 SUMMONS (6) Issued Electronically as to ALEX M. AZAR, II, ROGER SEVERINO, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, SEEMA VERMA, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zmc) (Entered: 06/24/2020)
19 NOTICE of Appearance by Michael A. Vatis on behalf of All Plaintiffs (Vatis, Michael) (Entered: 06/26/2020)
MINUTE ORDER GRANTING 12 Motion for Admission Pro Hac Vice of LAURA J. EDELSTEIN. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. So ORDERED by Judge James E. Boasberg on 6/29/2020. (lcjeb2) (Entered: 06/29/2020)
MINUTE ORDER GRANTING 13 Motion for Admission Pro Hac

06/29/2020
06/29/2020
06/29/2020
06/29/2020
06/30/2020 06/30/2020 06/30/2020 07/02/2020 07/02/2020 07/03/2020 07/07/2020 07/07/2020

Vice of KRISTOPH A. BECKER. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. So ORDERED by Judge James E. Boasberg on 6/29/2020. (lcjeb2) (Entered: 06/29/2020)
MINUTE ORDER GRANTING 14 Motion for Admission Pro Hac Vice of OMAR GONZALEZ-PAGAN. Counsel should register for efiling via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. So ORDERED by Judge James E. Boasberg on 6/29/2020. (lcjeb2) (Entered: 06/29/2020)
MINUTE ORDER GRANTING 15 Motion for Admission Pro Hac Vice of KAREN L. LOEWY. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. So ORDERED by Judge James E. Boasberg on 6/29/2020. (lcjeb2) (lcmg) (Entered: 06/29/2020)
MINUTE ORDER GRANTING 16 Motion for Admission Pro Hac Vice of CARL S. CHARLES. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. So ORDERED by Judge James E. Boasberg on 6/29/2020. (lcjeb2) (lcmg) (Entered: 06/29/2020)
MINUTE ORDER GRANTING 17 Motion for Admission Pro Hac Vice of JAMIE AVRA GLIKSBERG. Counsel should register for efiling via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. So ORDERED by Judge James E. Boasberg on 6/29/2020. (lcjeb2) (Entered: 06/29/2020)
20 NOTICE of Appearance by Omar Francisco Gonzalez-Pagan on behalf of All Plaintiffs (Gonzalez-Pagan, Omar) (Entered: 06/30/2020)
21 NOTICE of Appearance by Laura Joy Edelstein on behalf of All Plaintiffs (Edelstein, Laura) (Entered: 06/30/2020)
22 NOTICE of Appearance by Khristoph Becker on behalf of All Plaintiffs (Becker, Khristoph) (Entered: 06/30/2020)
23 NOTICE of Appearance by Karen Loewy on behalf of All Plaintiffs (Loewy, Karen) (Entered: 07/02/2020)
24 NOTICE of Appearance by Carl Solomon Charles on behalf of All Plaintiffs (Charles, Carl) (Entered: 07/02/2020)
25 NOTICE of Appearance by Jamie Avra Gliksberg on behalf of All Plaintiffs (Gliksberg, Jamie) (Entered: 07/03/2020)
26 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. ALEX M. AZAR, II served on 6/25/2020 (Dennehy, Johanna) (Entered: 07/07/2020)
27 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 6/26/2020. (Dennehy, Johanna) (Entered: 07/07/2020)

07/07/2020 07/08/2020 07/09/2020
29
07/10/2020

28 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/26/2020. Answer due for ALL FEDERAL DEFENDANTS by 8/25/2020. (Dennehy, Johanna); Modified event and text on 7/21/2020 (ztth). (Entered: 07/07/2020)
NOTICE OF ERROR re 26 Summons Returned Executed as to Federal Defendant; emailed to jdennehy@steptoe.com, cc'd 16 associated attorneys -- The PDF file you docketed contained errors: 1. FYI for future filings of this sort. Do not use the Affidavit of mailing forms. Use the form attached to the summons, Proof of Service. (ztd, ) (Entered: 07/08/2020)
MOTION for Preliminary Injunction or, in the Alternative, MOTION to Stay Pending Judicial Review Pursuant to 5 U.S.C. 705 by AGLP: THE ASSOCIATION OF LGBTQ PSYCHIATRISTS, AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC., ROBERT BOLAN, BRADBURY-SULLIVAN LGBT COMMUNITY CENTER, WARD CARPENTER, SARAH HENN, LOS ANGELES LGBT CENTER, RANDY PUMPHREY, TRANSLATIN@ COALITION, WHITMAN-WALKER CLINIC, INC. (Attachments: #

1

Memorandum in Support, # 2

Index of

Declarations, # 3 Declaration of Naseema Shafi, CEO, Whitman-

Walker Health, # 4 Declaration of Dr. Sarah Henn, MD, MPH, Chief

Medical Officer, Whitman-Walker Health, # 5 Declaration of Dr.

Randy Pumphrey, D. Min, LPC, BCC, Senior Director of Behavioral

Health, Whitman-Walker Health, # 6 Declaration of Bamby Salcedo,

President & CEO, The Translatin@ Coalition, # 7 Declaration of

Arianna Inurritegui-Lint, Executive Director of Arianna's Center, # 8

Declaration of Darrel Cummings, Chief of Staff, Los Angeles LGBT

Center, # 9 Declaration of Dr. Robert Bolan, MD, Chief Medical

Officer, Los Angeles LGBT Center, # 10 Declaration of Dr. Ward

Carpenter, MD, Co-Director of Health Services, Los Angeles LGBT

Center, # 11 Declaration of Adrian Shanker, Executive Director,

Bradbury-Sullivan LGBT Community Center, # 12 Declaration of

Hector Vargas, Executive Director, GLMA, # 13 Declaration of Roy

Harker, Executive Director, AGLP: The Association of LGBTQ+

Psychiatrists, # 14 Declaration of Dr. Deborah Fabian, MD, # 15

Declaration of Dr. Randi C. Ettner, PhD, # 16 Declaration of Elena Rose Vera, Executive Director, Trans Lifeline, # 17 Declaration of Carrie Davis, Chief Community Officer, The Trevor Project, # 18 Text of Proposed Order, # 19 Certificate of Service) (Dennehy, Johanna) (Entered: 07/09/2020)
MINUTE ORDER: The Court ORDERS that a conference call is hereby set for Friday, July 10, at 3:30 p.m. to discuss a briefing

07/10/2020 07/10/2020 07/10/2020 07/14/2020
30
07/15/2020

schedule regarding Plaintiffs' 29

Motion for Preliminary

Injunction. The Court ORDERS that the parties shall dial into

Chambers toll-free conference-call number, (877) 402-9753, at this

time. Chambers have contacted the parties via email with the dial-in

code. So ORDERED by Judge James E. Boasberg on 07/10/2020.

(lcjeb2) (Entered: 07/10/2020)

MINUTE ORDER: As discussed in todays telephonic hearing, the Court ORDERS that: 1) Defendants PI Opposition shall be due by July 24, 2020, with Plaintiffs Reply due by July 29, 2020; and 2) The parties shall appear for a hearing on the PI Motion on August 3, 2020 at 2:00 PM Eastern. So ORDERED by Judge James E. Boasberg on 07/10/2020. (lcjeb2) (Entered: 07/10/2020)

Set/Reset Deadlines/Hearings: Responses due by 7/24/2020. Replies due by 7/29/2020. Preliminary Injunction Hearing set for 8/3/2020 at 02:00 PM in Telephonic/VTC before Judge James E. Boasberg. (znbn) (Entered: 07/13/2020)

Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 7/10/2020. (Court Reporter Lisa Griffith) (nbn) (Entered: 07/13/2020)

MOTION for Leave to File Amicus Brief by ALLIANCE OF BLACK AND WHITE EX-GAY AND EX-TRANS, CENTER FOR GARDEN STATE FAMILIES, COALITION OF DOCTORS DEFENDING REPARATIVE THERAPY, COALITION OF MULTI-RACIAL PASTORS, DE FACTO ATTORNEY GENERAL, SPECIAL FORCES OF LIBERTY, WARRIORS FOR CHRIST. (Attachments: # 1

Exhibit Amicus Brief, # 2

Declaration, # 3

Declaration, # 4

Declaration, # 5

Declaration, # 6

Declaration, # 7

Declaration, #

8

Declaration, # 9

Declaration, # 10

Declaration, # 11

Declaration, # 12

Declaration)(ztth) (Entered: 07/14/2020)

MINUTE ORDER: The Court ORDERS that the 30 Motion for Leave to File Amicus Brief is DENIED WITHOUT PREJUDICE for failure to comply with LCvR 7(o). So ORDERED by Judge James E. Boasberg on 07/15/2020. (lcjeb2) (Entered:

07/15/2020 07/15/2020
32 07/15/2020 07/15/2020
07/15/2020 34
07/15/2020
07/15/2020 07/15/2020 07/20/2020
07/21/2020 07/24/2020 07/24/2020

07/15/2020)
31 NOTICE of Appearance by Jordan Landrum von Bokern on behalf of All Defendants (von Bokern, Jordan) (Entered: 07/15/2020)
Consent MOTION for Leave to File Amicus Brief by AARP, AARP FOUNDATION, SAGE (Attachments: # 1 Amicus Brief, # 2 Text of Proposed Order Proposed Order)(Bagby, Kelly) (Entered: 07/15/2020)
33 NOTICE of Appearance by Kelly Riseden Bagby on behalf of AARP, AARP FOUNDATION, SAGE (Bagby, Kelly) (Entered: 07/15/2020)

MINUTE ORDER: The Court ORDERS that Amici's 32 Motion is GRANTED. As their proposed attached brief [32-1] violates the Local Rules' prohibition on excessive footnotes, however, it will not be deemed filed. Amici may file a brief with no more than 10 footnotes containing no more than 50 aggregate lines of text. So ORDERED by Judge James E. Boasberg on 07/15/2020. (lcjeb2) (Entered: 07/15/2020)
Consent MOTION for Leave to File Brief Amicus Curiae by HOUSE

OF REPRESENTATIVES (Attachments: # 1

Exhibit

Proposed Brief, # 2 Text of Proposed Order)(Letter, Douglas) (Entered:

07/15/2020)

MINUTE ORDER: The Court ORDERS that Amicus's 34 Motion is GRANTED and its brief deemed FILED. So ORDERED by Judge James E. Boasberg on 07/15/2020. (lcjeb2) (Entered: 07/15/2020)
35 AMICUS BRIEF by AARP, AARP FOUNDATION, SAGE. (Bagby, Kelly) (Entered: 07/15/2020)
36 AMICUS BRIEF by HOUSE OF REPRESENTATIVES. (ztth) (Entered: 07/16/2020)
37 ERRATA Notice by AARP, AARP FOUNDATION, SAGE 35 Amicus Brief filed by SAGE, AARP FOUNDATION, AARP. (Attachments: # 1 Exhibit Amici Curiae Brief of AARP, AARP Foundation and Sage) (Bagby, Kelly) (Entered: 07/20/2020)
Set/Reset Deadlines: Answer due by 8/25/2020. Correction made to docket entry 28 at the request of counsel. (ztth) (Entered: 07/21/2020)
38 NOTICE of Appearance by William Kerwin Lane, III on behalf of All Defendants (Lane, William) Modified on 7/24/2020 to correct docket text (rj). (Entered: 07/24/2020)
39 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 6/25/2020 (Dennehy, Johanna)

07/24/2020 07/24/2020 07/24/2020
42
07/29/2020 43

(Entered: 07/24/2020)
40 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. SEEMA VERMA served on 6/25/2020 (Dennehy, Johanna) (Entered: 07/24/2020)
41 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. ROGER SEVERINO served on 6/25/2020 (Dennehy, Johanna) (Entered: 07/24/2020)

Memorandum in opposition to re 29

MOTION for

Preliminary Injunction or, in the Alternative MOTION to Stay Pending

Judicial Review Pursuant to 5 U.S.C. 705 filed by ALEX M. AZAR, II,

ROGER SEVERINO, UNITED STATES DEPARTMENT OF

HEALTH AND HUMAN SERVICES, SEEMA VERMA.

(Attachments: # 1 Text of Proposed Order)(Lane, William) (Entered:

07/24/2020)

REPLY to opposition to motion re 29

MOTION for

Preliminary Injunction or, in the Alternative MOTION to Stay Pending

Judicial Review Pursuant to 5 U.S.C. 705 filed by AGLP: THE

ASSOCIATION OF LGBTQ PSYCHIATRISTS, AMERICAN

ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC.,

ROBERT BOLAN, BRADBURY-SULLIVAN LGBT COMMUNITY

CENTER, WARD CARPENTER, SARAH HENN, LOS ANGELES

LGBT CENTER, RANDY PUMPHREY, TRANSLATIN@

COALITION, WHITMAN-WALKER CLINIC, INC.. (Attachments: #

1 Declaration of Omar Gonzalez-Pagan, # 2 Exhibit 1 - Defendants'

Motion to Remand or Stay (Franciscan Alliance), # 3 Exhibit 2 -

Plaintiffs' Motion for Summary Judgment (Franciscan Alliance), # 4

Exhibit 3 - Defendants' Motion to Modify Final Judgment (Franciscan

Alliance), # 5 Exhibit 4 - Court Order dated Nov. 21, 2019 (Franciscan

Alliance), # 6 Exhibit 5 - Lambda Legal Defense and Education Fund's

Comments on Proposed Rule, # 7 Exhibit 6 - GLMA's Comments on

Proposed Rule, # 8 Exhibit 7 - American Psychiatric Association's

Comments on Proposed Rule, # 9 Exhibit 8 - American College of

Obstetricians and Gynecologists' Comments on Proposed Rule, # 10

Exhibit 9 - State Insurance Commissioners of California et al.

Comments on Proposed Rule, # 11 Exhibit 10 - Cities of New York et

al. Comments on Proposed Rule, # 12 Exhibit 11 - National Center for

Transgender Equality's Comments on Proposed Rule, # 13 Exhibit 12 -

The California Endowment's Comments on Proposed Rule, # 14

Exhibit 13 - American Psychological Association's Response to

Request for Information, # 15 Exhibit 14 - 9/1/17 Letter from James L.

Madara, MD to Roger Severino, # 16 Exhibit 15 - New York Legal

Assistance Group's Comments on Proposed Rule)(Dennehy, Johanna)

(Entered: 07/29/2020)

08/03/2020
08/04/2020 08/06/2020
45
08/07/2020

Minute Entry for proceedings held before Judge James E. Boasberg:

Motion Hearing held on 8/3/2020 re 29

MOTION for

Preliminary Injunction or, in the Alternative MOTION to Stay Pending

Judicial Review Pursuant to 5 U.S.C. 705 filed by BRADBURY-

SULLIVAN LGBT COMMUNITY CENTER, WARD CARPENTER,

RANDY PUMPHREY, AGLP: THE ASSOCIATION OF LGBTQ

PSYCHIATRISTS, ROBERT BOLAN, TRANSLATIN@

COALITION, AMERICAN ASSOCIATION OF PHYSICIANS FOR

HUMAN RIGHTS, INC., SARAH HENN, WHITMAN-WALKER

CLINIC, INC., LOS ANGELES LGBT CENTER. Oral arguments

heard. Government Response due by 8/10/2020. (Court Reporter Lisa

Griffith) (znbn) (Entered: 08/03/2020)

44 NOTICE of Appearance by Josephine T. Morse on behalf of HOUSE OF REPRESENTATIVES (Morse, Josephine) (Entered: 08/04/2020)

ENTERED IN ERROR.....NOTICE (Clarification of Statement at Oral Argument) by AGLP: THE ASSOCIATION OF LGBTQ PSYCHIATRISTS, AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC., ROBERT BOLAN, BRADBURYSULLIVAN LGBT COMMUNITY CENTER, WARD CARPENTER, SARAH HENN, LOS ANGELES LGBT CENTER, RANDY PUMPHREY, TRANSLATIN@ COALITION, WHITMAN-WALKER

CLINIC, INC. re 29

MOTION for Preliminary Injunction

or, in the Alternative MOTION to Stay Pending Judicial Review

Pursuant to 5 U.S.C. 705 (Dennehy, Johanna); Modified on 8/7/2020

(ztth). (Entered: 08/06/2020)

46 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 8-3-2020; Page Numbers: 1-50. Date of Issuance:8-7-2020. Court Reporter/Transcriber Lisa W Griffith, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced abo ve. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at

08/07/2020 08/07/2020
08/10/2020 48
08/12/2020 08/17/2020

www.dcd.uscourts.gov.
Redaction Request due 8/28/2020. Redacted Transcript Deadline set for 9/7/2020. Release of Transcript Restriction set for 11/5/2020.(Griffith, Lisa) (Entered: 08/07/2020)

NOTICE OF ERROR re 45

Notice (Other); emailed to

jdennehy@steptoe.com, cc'd 34 associated attorneys -- The PDF file

you docketed contained errors: 1. Please refile document, 2. Docket

Entry 45

was entered in error. The pleading should be filed

in pleading format. See LCvR 5.1 (a). (ztth, ) (Entered: 08/07/2020)

47 NOTICE (Clarification of Statement at Oral Argument) by AGLP: THE ASSOCIATION OF LGBTQ PSYCHIATRISTS, AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC., ROBERT BOLAN, BRADBURY-SULLIVAN LGBT COMMUNITY CENTER, WARD CARPENTER, SARAH HENN, LOS ANGELES LGBT CENTER, RANDY PUMPHREY, TRANSLATIN@

COALITION, WHITMAN-WALKER CLINIC, INC. re 29 MOTION for Preliminary Injunction or, in the Alternative MOTION to Stay Pending Judicial Review Pursuant to 5 U.S.C. 705 (Dennehy, Johanna) (Entered: 08/07/2020)

SURREPLY to re 29

MOTION for Preliminary Injunction

or, in the Alternative MOTION to Stay Pending Judicial Review

Pursuant to 5 U.S.C. 705 filed by ALEX M. AZAR, II, ROGER

SEVERINO, UNITED STATES DEPARTMENT OF HEALTH AND

HUMAN SERVICES, SEEMA VERMA. (Lane, William) (Entered:

08/10/2020)

49 NOTICE of Additional Developments in Franciscan Alliance Litigation by AGLP: THE ASSOCIATION OF LGBTQ PSYCHIATRISTS, AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC., ROBERT BOLAN, BRADBURYSULLIVAN LGBT COMMUNITY CENTER, WARD CARPENTER, SARAH HENN, LOS ANGELES LGBT CENTER, RANDY PUMPHREY, TRANSLATIN@ COALITION, WHITMAN-WALKER CLINIC, INC. (Dennehy, Johanna) (Entered: 08/12/2020)

50 NOTICE OF SUPPLEMENTAL AUTHORITY by AGLP: THE ASSOCIATION OF LGBTQ PSYCHIATRISTS, AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC., ROBERT BOLAN, BRADBURY-SULLIVAN LGBT COMMUNITY CENTER, WARD CARPENTER, SARAH HENN, LOS ANGELES LGBT CENTER, RANDY PUMPHREY, TRANSLATIN@ COALITION, WHITMAN-WALKER CLINIC, INC. (Attachments: #

08/21/2020 51
08/24/2020
08/24/2020 08/25/2020
08/31/2020 08/31/2020 09/02/2020
55
09/02/2020 56

1 Exhibit 1 - Memorandum and Order, Walker v. Azar, No. 20-cv02834 (E.D.N.Y. Aug. 17, 2020))(Dennehy, Johanna) (Entered: 08/17/2020)

MOTION for Extension of Time to File Answer re 1 Complaint,,, by ALEX M. AZAR, II, ROGER SEVERINO, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, SEEMA VERMA (Attachments: # 1 Text of Proposed Order)(Lane, William) (Entered: 08/21/2020)

MINUTE ORDER: If Plaintiffs oppose Defendants' 51 Motion for Extension, the Court ORDERS that they shall file such opposition by August 26, 2020. So ORDERED by Judge James E. Boasberg on 08/24/2020. (lcjeb2) (Entered: 08/24/2020)

Set/Reset Deadlines: Opposition due by 8/26/2020. (znbn) (Entered: 08/24/2020)

52

RESPONSE re 51

MOTION for Extension of Time to File

Answer re 1

Complaint,,, filed by AGLP: THE

ASSOCIATION OF LGBTQ PSYCHIATRISTS, AMERICAN

ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC.,

ROBERT BOLAN, BRADBURY-SULLIVAN LGBT COMMUNITY

CENTER, WARD CARPENTER, SARAH HENN, LOS ANGELES

LGBT CENTER, RANDY PUMPHREY, TRANSLATIN@

COALITION, WHITMAN-WALKER CLINIC, INC.. (Dennehy,

Johanna) (Entered: 08/25/2020)

53 NOTICE of Appearance by Liam Holland on behalf of All Defendants (Holland, Liam) (Entered: 08/31/2020)

54 NOTICE OF SUPPLEMENTAL AUTHORITY by ALEX M. AZAR, II, ROGER SEVERINO, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, SEEMA VERMA (Attachments: # 1 Exhibit)(Holland, Liam) (Entered: 08/31/2020)

ORDER: For the reasons set forth in the accompanying Memorandum

Opinion, the Court ORDERS that Plaintiffs' 29

Motion for

a Preliminary Injunction or, in the Alternative, a Stay Pending Judicial

Review is GRANTED IN PART and DENIED IN PART. Signed by

Judge James E. Boasberg on 9/2/2020. (lcjeb1) (Entered: 09/02/2020)

MEMORANDUM OPINION re 55

Order on Motion for a

Preliminary Injunction or, in the Alternative, a Stay Pending Judicial

Review. Signed by Judge James E. Boasberg on 9/2/2020. (lcjeb1)

09/08/2020 09/08/2020

(Entered: 09/02/2020) MINUTE ORDER: The Court ORDERS that Defendants' 51
Motion for Extension is GRANTED, and they may file their Answer by September 29, 2020. So ORDERED by Judge James E. Boasberg on 09/08/2020. (lcjeb2) (Entered: 09/08/2020) Set/Reset Deadlines: Answer due by 9/29/2020. (znbn) (Entered: 09/08/2020)

PACER Service Center

Transaction Receipt

09/13/2020 11:49:39

PACER Login:

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Client Code:

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Description: Docket Report

Search 1:20-cvCriteria: 01630-JEB

Billable Pages:

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Cost:

2.00

 
 Case 1:20-cv-01630 Document 1 Filed 06/22/20 Page 1 of 85

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHITMAN-WALKER CLINIC, Inc. d/b/a WHITMAN-WALKER HEALTH 1377 R Street NW Washington, DC 20009;
THE TRANSLATIN@ COALITION 3055 Wilshire Boulevard, Suite 350 Los Angeles, CA 90010;
LOS ANGELES LGBT CENTER 1625 Schrader Boulevard Los Angeles, CA 90028;
BRADBURY-SULLIVAN LGBT COMMUNITY CENTER 522 West Maple Street at Bayard Rustin Way Allentown, PA 18101;
AMERICAN ASSOCIATION OF PHYSICIANS FOR HUMAN RIGHTS, INC. d/b/a GLMA: HEALTH PROFESSIONALS ADVANCING LGBTQ EQUALITY 1133 19th Street NW, Suite 302 Washington, DC 20036;
AGLP: THE ASSOCIATION OF LGBTQ PSYCHIATRISTS 4514 Chester Avenue Philadelphia, PA 19143;
SARAH HENN, MD, MPH c/o Steptoe & Johnson LLP 1330 Connecticut Avenue NW Washington, DC 20036;
RANDY PUMPHREY, D.MIN, LCC, BCC c/o Steptoe & Johnson LLP 1330 Connecticut Avenue NW Washington, DC 20036;

) ) ) Case No. ) ) ) COMPLAINT FOR DECLARATORY ) AND INJUNCTIVE RELIEF ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case 1:20-cv-01630 Document 1 Filed 06/22/20 Page 2 of 85

ROBERT BOLAN, MD

)

c/o Steptoe & Johnson LLP

)

1330 Connecticut Avenue NW

)

Washington, DC 20036; and

)

)

WARD CARPENTER, MD

)

c/o Steptoe & Johnson LLP

)

1330 Connecticut Avenue NW

)

Washington, DC 20036,

)

)

Plaintiffs,

)

)

v.

)

)

U.S. DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES

)

200 Independence Avenue SW

)

Washington, D.C. 20201;

)

)

ALEX M. AZAR II, in his official capacity as

)

Secretary of U.S. Department of Health and

)

Human Services,

)

200 Independence Avenue SW

)

Washington, D.C. 20201;

)

)

ROGER SEVERINO, in his official capacity as )

Director, Office for Civil Rights, U.S.

)

Department of Health and Human Services,

)

200 Independence Avenue, SW

)

Room 509F, HHH Building

)

Washington, D.C. 20201; and

)

)

SEEMA VERMA, in her official capacity as

)

Administrator for the Centers for Medicare and )

Medicaid Services, U.S. Department of Health )

and Human Services,

)

7500 Security Boulevard,

)

Baltimore, MD 21244,

)

)

Defendants.

)

)

2

Case 1:20-cv-01630 Document 1 Filed 06/22/20 Page 3 of 85
INTRODUCTION 1. A person’s access to health care should not be contingent on their sex, gender identity, transgender status, sexual orientation, race, national origin, age, disability, or religion. When people go to a doctor’s office, hospital, or an emergency room seeking treatment, they expect and are entitled to receive care appropriate to meet their health needs without regard to who they are or the type of health care they seek. 2. Yet, in the midst of a global pandemic, the Trump Administration’s Department of Health and Human Services (“HHS”) has sought to diminish protections from discrimination in health care because of a person’s sex, gender identity, transgender status, sexual orientation, race, national origin, age, or disability. 3. HHS has taken these actions notwithstanding and despite the decision of the Supreme Court of the United States on June 15, 2020 holding that discrimination on the basis of a person’s transgender status or sexual orientation is discrimination on the basis of sex. See Bostock v. Clayton Cty., Ga., 590 U.S. ___, 2020 WL 3146686 (June 15, 2020). 4. As of the filing of this Complaint, and in less than six months, approximately 2.25 million people in the United States have tested positive for COVID-19, resulting in approximately 120,000 deaths to date.1 The United States is facing a public health crisis. During these difficult times, Americans need the security and peace of mind that they will be able to access the health care they need and require. The government should be doing everything within its capacity to protect and preserve the safe and effective delivery of health care to all patients regardless of their sex, gender identity, transgender status, sexual orientation, race,
1 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Cases in the U.S., https://perma.cc/38HG-JUBB (last visited June 21, 2020).

Case 1:20-cv-01630 Document 1 Filed 06/22/20 Page 4 of 85
national origin, age, or disability. Yet, HHS is doing exactly the opposite, adopting positions that fly in the face of its stated mission to “enhance and protect the health and well-being of all Americans by providing for effective health and human services.” 2
5. Recognizing the paramount importance of providing people with prompt, effective, and nondiscriminatory access to health care, Congress has taken repeated and concerted efforts to improve access to health care and bar discrimination within the health care industry.
6. Section 1557 of the Patient Protection and Affordable Care Act (“ACA”), 42 U.S.C. § 18116, specifically and explicitly protects against discrimination in the provision of health care services. Section 1557 prohibits discrimination based on sex, race, color, national origin, age, and disability.
7. In 2016, HHS promulgated a final rule, developed over the course of six years and two notice-and-comment periods, to implement the nondiscrimination requirements of Section 1557. See Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376 (May 18, 2016) (formerly codified at 45 C.F.R. pt. 92) (the “2016 Final Rule”). Consistent with Section 1557’s nondiscrimination mandate, the 2016 Final Rule made clear that health care providers and insurers may not discriminate against lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) people in making medical and coverage decisions. Doing so constitutes discrimination on the basis of sex, which the 2016 Final Rule specifically defined to include discrimination on the basis of gender identity and sex stereotyping, among other criteria.
2 U.S. Dep’t of Health & Human Servs., About HHS, HHS.GOV, https://perma.cc/CY5N-RBPH.
2

Case 1:20-cv-01630 Document 1 Filed 06/22/20 Page 5 of 85
8. The 2016 Final Rule also included specific guidance about how Section 1557’s sex discrimination prohibition applies to transgender people, including access to and coverage of gender-affirming health services.
9. In addition, the 2016 Final Rule confirmed, based on the plain statutory language of Section 1557, that all enforcement mechanisms available under the statutes listed in Section 1557 are available to any person regardless of the person’s protected characteristic, establishing a unitary legal standard for all violations of the statute. It also confirmed that Section 1557 prohibits not only intentional discrimination, but conduct and practices that have the effect of subjecting individuals to discrimination on the basis of their sex.
10. Since the 2016 Final Rule went into effect, it has led to a dramatic decrease in discriminatory policies and practices.3
11. Now, however, with next-to-no legal, medical, or reasoned policy foundation, and contrary to the opinions of professional medical and public health organizations,4 HHS has issued a revised regulation under Section 1557 (the “Revised Rule”) that rolls back the 2016 Final Rule and limits the protections for LGBTQ people, among others. See Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg.
3 See, e.g., Sharita Gruberg and Frank J. Bewkes, The ACA’s LGBTQ Nondiscrimination Regulations Prove Crucial, Center for American Progress (Mar. 7, 2018), https://perma.cc/CTP2-UMEJ. 4 See, e.g., Letter from James L. Madara, MD, Exec. Vice President/CEO, American Medical Association, to The Hon. Alex M. Azar II, Sec’y, U.S. Dep’t Health & Hum. Servs. (Aug. 13, 2019), https://perma.cc/9N7N-JJ3G; Letter from Saul Levin, MD, MPA, FRCP-E, CEO & Med. Dir., American Psychiatric Association, to Sec’y Alex Azar II, U.S. Dep’t Health & Hum. Servs. (Aug. 9, 2019), https://perma.cc/YUG9-E6SW; Letter from Katherine B. McGuire, Chief Advocacy Officer, American Psychological Association, to U.S. Dep’t Health & Hum. Servs. (Aug. 13, 2019), https://perma.cc/LE65-6Q63.
3

Case 1:20-cv-01630 Document 1 Filed 06/22/20 Page 6 of 85
37,160 (June 19, 2020) (to be codified at 42 C.F.R. pts. 438, 440, & 460 and 45 C.F.R. pts. 86, 92, 147, 155, & 156).
12. Although the Revised Rule cannot change the law, it is part of the Trump Administration’s concerted and aggressive effort to undermine protections for LGBTQ people, including Section 1557’s nondiscrimination protections and the regulatory structure and administrative processes the 2016 Final Rule established. Multiple provisions in the Revised Rule threaten to confuse and mislead patients, health care providers, and insurers and will result in increased discrimination and substantial harm to precisely those vulnerable communities that Section 1557 is intended to protect, like LGBTQ people and their families.
13. Relying on essentially one federal district court opinion, the Revised Rule arbitrarily and capriciously repeals entirely the 2016 Final Rule’s definition of discrimination on the basis of sex, which specifically included discrimination based on gender identity and sex stereotyping, as well as related provisions prohibiting discrimination against transgender individuals. The elimination of this definition not only invites health care insurers and providers to discriminate against LGBTQ people seeking health care, but it also introduces substantial confusion among health care providers and insurers regarding their legal obligations and the right of the populations they serve to be free from sex discrimination, particularly in light of the Supreme Court’s decision in Bostock v. Clayton County, Georgia, 590 U.S. __, 2020 WL 3146686, which held that discrimination based on transgender status or sexual orientation “necessarily entails discrimination based on sex.” Id. at *11.
14. The Revised Rule, which HHS publicly released three days prior to the Supreme Court’s ruling in Bostock, recognizes that “a holding by the U.S. Supreme Court on the meaning of ‘on the basis of sex’ under Title VII will likely have ramifications for the definition of ‘on the
4

Case 1:20-cv-01630 Document 1 Filed 06/22/20 Page 7 of 85
basis of sex’ under Title IX,” because “Title VII case law has often informed Title IX case law with respect to the meaning of discrimination ‘on the basis of sex.’” 85 Fed. Reg. 37,168. However, undeterred from their goal to foster discrimination against LGBTQ people, HHS published the Revised Rule, without any changes, four days after the Supreme Court’s decision in Bostock.
15. To be clear, Bostock’s holding that discrimination on the basis of sexual orientation or transgender status constitutes discrimination on the basis of sex forecloses HHS’s attempts to deny the full protection of Section 1557 to LGBTQ individuals and patients in health care settings.
16. The Revised Rule also eliminates the unitary legal standard for enforcement of violations of Section 1557, replacing it with a fractured approach that will complicate and make it more difficult to bring discrimination claims under Section 1557, particularly claims of intersectional discrimination. The Revised Rule’s elimination of the explicit recognition of private rights of action and the availability of compensatory damages under Section 1557 also will confuse the public and mislead individuals into not asserting their legal rights.
17. In addition, the Revised Rule imports broad and sweeping exemptions for discrimination based on personal religious or moral beliefs from the identified statutes in Section 1557 and other statutes, including the Religious Freedom Restoration Act (42 U.S.C. § 2000bb et seq.), which Section 1557 does not reference. These exemptions invite individual health care providers, health care entities, and insurers across the country to opt out of treating patients, including many transgender patients, if they believe doing so would compromise their faith.
18. These exemptions will adversely affect health care providers that serve and treat the LGBTQ community and their LGBTQ patients because (1) their individual health care
5

Case 1:20-cv-01630 Document 1 Filed 06/22/20 Page 8 of 85
employees may decline to serve patients based on religious objections, and (2) their ability to refer patients to other providers will be impaired, as the Revised Rule would invite discrimination against their LGBTQ patients.
19. HHS’s attempt to create new religious exemptions in Section 1557 is contrary to law and endangers patients’ health in the name of advancing the religious beliefs of those who are entrusted with caring for them—a result sharply at odds with HHS’s stated mission to “enhance and protect the health and well-being of all Americans” and to “provid[e] for effective health and human services.”5
20. The Revised Rule also arbitrarily and capriciously eliminates the requirement that covered entities post notices informing individuals about nondiscrimination requirements and their rights and also cuts back the safeguards that the 2016 Final Rule implemented for patients with Limited English Proficiency (“LEP”), weakening protections for LEP patients and depriving families and individuals of adequate care.
21. In addition, the Revised Rule limits the scope of Section 1557, cutting back on the entities subject to Section 1557. Despite the plain language of Section 1557, the Revised Rule excludes health programs and activities that HHS funds but are not established or administered under Title I of the ACA and health insurance plans outside of Title I of the ACA that do not receive Federal financial assistance. Not only is this action inconsistent with Section 1557, it will cause drastic reductions in protections for LGBTQ people.
22. The Revised Rule also amends a series of unrelated regulations issued under statutes other than Section 1557 by deleting references to sexual orientation and gender identity discrimination. HHS does not have the authority to make these changes within the rulemaking
5 U.S. Dep’t of Health & Human Servs., About HHS, HHS.GOV, https://perma.cc/CY5N-RBPH.
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challenged, and these changes are not supported by any analysis or evidence. The Revised Rule is intended only to send a message that a person’s LGBTQ identity is not recognized and LGBTQ people can be subjected to discrimination.
23. The Revised Rule’s cost-benefit analysis is fatally flawed, incomplete, and unreasonable. Specifically, HHS fails to account for the increased costs to patients, insurers, and the health care system at large stemming from discrimination against LGBTQ and other patients.
24. The Revised Rule, if allowed to go into effect, will undermine the progress achieved so far in eradicating health care discrimination against LGBTQ people in a broad array of health care programs and entities by inviting health care insurers and providers once again to discriminate against them, while also discouraging LGBTQ people from seeking health care in the first instance.
25. In adopting the Revised Rule, HHS acted arbitrarily and capriciously, in excess of its statutory authority, and not in accordance with the law in violation of the Administrative Procedure Act (“APA”) (5 U.S.C. § 551 et seq.). The Revised Rule also violates the Equal Protection Guarantee and Due Process Clause of the Fifth Amendment, and the Free Speech and Establishment Clauses of the First Amendment to the United States Constitution.
26. The Revised Rule is causing and will continue to cause irreparable harm to LGBTQ people and health care providers. The Revised Rule should be declared unlawful, enjoined, and vacated.
JURISDICTION AND VENUE 27. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, as this action arises under the laws of the United States and United States Constitution; 28 U.S.C. § 1346, as a civil action against the United States founded upon the Constitution, an Act of Congress, or an
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executive regulation; and 28 U.S.C. § 1361, as an action to compel an officer or agency to perform a duty owed to plaintiffs.
28. Jurisdiction also is proper under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Defendants’ issuance of the Revised Rule on June 19, 2020, constitutes a final agency action that is subject to judicial review under 5 U.S.C. §§ 702, 704, and 706.
29. An actual controversy exists between the parties within the meaning of 28 U.S.C. § 2201(a), and this Court may grant declaratory, injunctive, and other relief pursuant to 28 U.S.C. §§ 2201-2202 and 5 U.S.C. §§ 705-706.
30. Venue is proper in this district under 28 U.S.C. § 1391(b)(1), (b)(2), & (e)(1) because at least one plaintiff resides in this judicial district, a substantial part of the events or omissions giving rise to this action occurred in this district, and each defendant is an agency of the United States or an officer of the United States sued in their official capacity.
PARTIES A. Plaintiffs 31. Plaintiffs are two private health care facilities that provide health care services to LGBTQ people and many individuals and families with LEP (Whitman-Walker Clinic, Inc. d/b/a Whitman-Walker Health and the Los Angeles LGBT Center) (“private health care provider plaintiffs”); two organizations that provide a wide range of services to the LGBTQ community, including people and families with LEP (the TransLatin@ Coalition and Bradbury-Sullivan LGBT Community Center) (“LGBTQ-services plaintiffs”); two national associations of health professionals (American Association of Physicians for Human Rights d/b/a GLMA: Health Professionals Advancing LGBTQ Equality and AGLP: The Association of LGBTQ Psychiatrists) (“health professional association plaintiffs”); and three individual physicians and
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one behavioral health provider who work for the private health care provider plaintiffs (“individual provider plaintiffs”).
32. The private health care provider plaintiffs (Whitman-Walker Health and the Los Angeles LGBT Center) and the individual provider plaintiffs assert claims on their own behalf and also on behalf of their patients and recipients of services, who face barriers to asserting their own claims and protecting their own interests.
33. The LGBTQ-services plaintiffs (the TransLatin@ Coalition and the BradburySullivan LGBT Community Center) assert claims on their own behalf and also on behalf of the recipients of their services who face barriers to asserting their own claims and protecting their own interests.
34. The TransLatin@ Coalition also asserts claims on behalf of its transgender and gender nonconforming members, including members who are leaders of affiliated community organizations serving Latinx transgender and gender nonconforming people.
35. The health professional association plaintiffs (GLMA and AGLP) assert claims on their own behalf and on behalf of their members and also on behalf of the LGBTQ patients whose interests they represent and the patients whom their members treat who face barriers to asserting their own claims and protecting their own interests.
36. Plaintiffs assert different but complementary interests and share the common objective of maintaining an effective, functioning health care system that protects patients’ dignity and their rights to access health services. Plaintiffs also support providing informed access to comprehensive, medically appropriate care to LGBTQ patients, including genderaffirming care for transgender persons, without discrimination based on a patient’s sex, gender
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identity, transgender status, or sexual orientation and in accordance with medical and ethical standards of care.
37. Plaintiff Whitman-Walker Clinic, Inc. d/b/a Whitman-Walker Health, a Federally Qualified Health Center located in Washington, D.C., has a special mission to serve the LGBTQ community and persons living with HIV of every sexual orientation and gender. More than 280 medical, behavioral health and dental professionals, lawyers and paralegals, support staff and administrators provide a range of services, including medical and community health care, transgender care and services, behavioral-health services, dental-health services, legal services, insurance-navigation services, and youth and family support. In 2019, WhitmanWalker provided health care services to 20,760 individuals. More than 10% of those individuals identified as transgender or gender nonconforming. Almost 45% of health care patients – and 60% of those who provided information on their sexual orientation – identified as lesbian, gay, bisexual, or otherwise non-heterosexual. More than 9% of patients had limited English proficiency. Whitman-Walker receives various forms of federal funding from HHS and from institutions affiliated with or funded by HHS, including but not limited to funds under the Public Health Services Act (“PHSA”), direct grants, funding under the Ryan White Comprehensive AIDS Resources Emergency Act of 1990, 42 U.S.C. § 300ff et seq. (“Ryan White funding”), funds under the 340B Drug Discount Program, and research grants from the Centers for Disease Control and Prevention and the National Institutes of Health, and Medicaid and Medicare reimbursements. Whitman-Walker also receives funds from the Health Resources and Service Administration (“HRSA”) and is a Federally Qualified Heath Center. In 2019, WhitmanWalker’s federally funded research contracts and grants totaled more than $7 million. WhitmanWalker is subject to Section 1557 of the ACA and the Revised Rule.
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38. Plaintiff Dr. Sarah Henn is the Chief Health Officer of Whitman-Walker. Dr. Henn oversees all health care-related services at Whitman-Walker and maintains a panel of patients for whom she provides direct care. Whitman-Walker’s patient population, including patients to whom Dr. Henn provides direct care and whose care she oversees, includes many patients who have experienced refusals of health care or who have been subjected to disapproval, disrespect, or hostility from medical providers outside of Whitman-Walker because of their actual or perceived sexual orientation, gender identity, or transgender status. Many of Dr. Henn’s patients and those whose care she oversees are, therefore, apprehensive or fearful of encountering stigma and discrimination in health care settings because of their past experiences. Such experiences will increase as a result of the Revised Rule. In addition to overseeing medical care of patients and working with her own patients, Dr. Henn oversees Whitman-Walker’s Research Department and is personally involved in a number of clinical research projects, including as the Leader of Whitman-Walker’s Clinical Research Site for the AIDS Clinical Trials Group funded by the National Institutes of Health.
39. Plaintiff Dr. Randy Pumphrey is Senior Director of Behavioral Health at Whitman-Walker. As Senior Director of Behavioral Health, Dr. Pumphrey oversees WhitmanWalker’s portfolio of mental-health services and substance-use-disorder-treatment services and maintains a panel of patients for whom he provides direct behavioral health care. In 2019, Whitman-Walker provided mental-health or substance-use-disorder-treatment services to more than 1,800 patients, many of whom identify as LGBT or are living with HIV. Many, if not most, of the patients to whom Dr. Pumphrey provides direct care and whose behavioral health care he oversees face considerable stigma and discrimination as people living with HIV, sexual or gender minorities, or people of color. They have experienced difficulty finding therapists or
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other mental-health or substance-use-disorder professionals who are understanding and welcoming of their sexual orientation, gender identity, or transgender status. These experiences of discrimination will increase as a result of the Revised Rule.
40. Plaintiff The TransLatin@ Coalition is a nationwide 501(c)(3) nonprofit membership organization that advocates for the interests of transgender and gender nonconforming individuals, particularly Latinx people, and provides direct services to the transgender community, including leadership development, educational services, and employment services. The TransLatin@ Coalition currently has a presence in Los Angeles, California; Washington, D.C.; Chicago, Illinois; New York, New York; Atlanta, Georgia; Houston, Texas; and Tucson, Arizona. The TransLatin@ Coalition has thousands of individual members across the United States, including transgender and gender nonconforming Latinx individuals who have experienced or fear discrimination based on their sex, transgender status, national origin, or LEP status in health care. This includes individual transgender and gender nonconforming Latinx members like Bamby Salcedo, who resides in California, and Arianna Lint, who resides in Florida. Ms. Salcedo and Ms. Lint have experienced discrimination in health care because of their transgender status and fear the Revised Rule will make it more likely they will encounter discrimination in health care again. The TransLatin@ Coalition’s membership also includes leaders of affiliated community organizations that serve Latinx transgender and gender nonconforming people across the country, such as Arianna’s Center headquartered in Florida and with offices in Puerto Rico, Community Estrella in Georgia, and the Fundación Latinoamericana de Accion Social (FLAS) in Texas. The Coalition and its members advocate for policy changes at the local, state, and federal levels, and conducts research regarding homelessness, health and health care, and employment in the transgender Latinx
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community. Through its Center for Violence Prevention & Transgender Wellness, the Coalition also provides direct services to transgender, gender nonconforming, and intersex people in the City of Los Angeles. Many of the members of the Coalition and the individuals they and the Coalition serve are immigrants, some living with HIV/AIDS. The Coalition and its members serve many communities in which English is not the primary language spoken and a number of individuals in these communities are not fluent in English.
41. Plaintiff Los Angeles LGBT Center is located in Los Angeles, California. Its mission is to build a world in which LGBT people thrive as healthy, equal, and complete members of society. The LA LGBT Center offers programs, services, and advocacy spanning four broad categories: health, social services and housing, culture and education, and leadership and advocacy. The LA LGBT Center has more than 750 employees and provides services to more LGBT people than any other organization in the world, with about 500,000 client visits per year, including LEP patients. LA LGBT Center receives funds under the PHSA. Approximately 80% of the LA LGBT Center’s funding originates from the federal government, including but not limited to Ryan White funding; direct funding from the Centers for Disease Control and Prevention; discounts under the 340B Drug Discount Program; grants under section 330 of the PHSA; grants from HRSA’s Bureau of Primary Health Care under which the LA LGBT Center is a Federally Qualified Health Center; and Medicaid and Medicare reimbursements. The LA LGBT Center is an entity subject to Section 1557 of the ACA and the Revised Rule.
42. Plaintiff Dr. Robert Bolan is the Chief Medical Officer of the LA LGBT Center. He oversees the delivery of health care for over 20,000 patients who come to the LA LGBT Center and personally treats approximately 300 patients. More than 90% of these patients identify as LGBT, many of them coming from different areas of California and other States to
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obtain services in a safe and affirming environment. Dr. Bolan also oversees the LA LGBT Center’s Research Department. Dr. Bolan and the providers he supervises treat patients who identify as transgender and who require gender-affirming treatment, including medically necessary health care for gender dysphoria. Many of Dr. Bolan’s patients and many of the patients of the providers he supervises at the LA LGBT Center already have experienced traumatic and discriminatory denials of health care based on their sexual orientation, gender identity, transgender status, or HIV status at the hands of providers outside the LA LGBT Center, including by health care providers who have expressed religious or moral objections to treating them. These experiences will increase as a result of the Revised Rule.
43. Plaintiff Dr. Ward Carpenter is the Co-Director of Health Services at the LA LGBT Center. Dr. Carpenter is a nationally recognized expert in the field of transgender medicine. In his role as Co-Director of Health Services, Dr. Carpenter oversees the healthcare of more than 25,000 patients who come to the LA LGBT Center and personally treats 150 patients. All of Dr. Carpenter’s patients identify within the LGBT community and approximately 30% are people living with HIV. These patients come from different areas of California and other States to obtain services in a safe and affirming environment. Dr. Carpenter’s patient population is disproportionately low-income and experiences high rates of chronic medical conditions, homelessness, unstable housing, and extensive trauma history. In addition, many of Dr. Carpenter’s patients, as well as the patients of the other medical providers he supervises at the Center, already have experienced traumatic and discriminatory denials of healthcare based on their sexual orientation, gender identity, transgender status, or HIV status at the hands of providers outside the LA LGBT Center, including by healthcare providers who have expressed
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religious or moral objections to treating them. These experiences will increase as a result of the Revised Rule.
44. Plaintiff Bradbury-Sullivan LGBT Community Center is a 501(c)(3) nonprofit organization based in Allentown, Pennsylvania, and incorporated in Pennsylvania. It is dedicated to securing the health and well-being of LGBTQ people of the Greater Lehigh Valley. It provides a variety of programs and services for the LGBTQ community, including HIV/STI testing, health care-enrollment events, health promotion programs for LGBTQ adults and youth, support groups, and a free legal clinic. Bradbury-Sullivan Center also provides referrals to LGBT-welcoming health care providers. Patrons of Bradbury-Sullivan Center often seek health care services from other health care organizations, including religiously affiliated organizations. Bradbury-Sullivan Center works with patrons who have experienced discriminatory treatment when seeking health care services from such organizations, and it advocates on behalf of those patrons by providing referrals to LGBT-welcoming agencies and providers, training agencies to provide LGBT-welcoming services, and, when necessary, communicating with agencies to inform them of their legal obligations to serve LGBT people. Bradbury-Sullivan Center also conducts research documenting health disparities in the LGBT community and performs related community-education efforts to improve public health within the LGBT community. BradburySullivan Center receives pass-through funding from HHS through the Assistance Programs for Chronic Disease Prevention and Control, State Public Health Approaches to Ensuring Quitline Capacity funded in part by Prevention and Public Health Fund, State Physical Activity and Nutrition, Injury Prevention and Control Research and State and Community Based Programs, National State-Based Tobacco Control Programs, Maternal and Child Health Services Block Grant, and in the past also has received Ryan White funding.
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45. Plaintiff American Association of Physicians For Human Rights, Inc. d/b/a GLMA: Health Professionals Advancing LGBTQ Equality (formerly known as the Gay & Lesbian Medical Association) is a 501(c)(3) nonprofit membership organization based in Washington, D.C. and incorporated in California. GLMA is a national organization committed to ensuring health equity for lesbian, gay, bisexual, transgender, queer, and all sexual and gender minority individuals, and equality for health professionals in such communities in their work and learning environments. To achieve this mission, GLMA utilizes the scientific expertise of its diverse multidisciplinary membership to inform and drive advocacy, education, and research. GLMA works with professional accreditation bodies and health professional associations on standards, guidelines, and policies that address LGBTQ health and protect individual patient health and public health in general. GLMA also represents the interests of hundreds of thousands of LGBTQ health professionals and millions of LGBTQ patients and families across the United States. GLMA’s membership includes approximately 1,000 member physicians, nurses, advanced practice nurses, physician assistants, researchers and academics, behavioral health specialists, health-profession students, and other health professionals throughout the country. Their practices represent the major health care disciplines and a wide range of health specialties, including primary care, internal medicine, family practice, psychiatry, pediatrics, obstetrics/gynecology, emergency medicine, neurology, and infectious diseases.
46. Plaintiff AGLP: The Association of LGBTQ Psychiatrists is a 501(c)(3) nonprofit membership organization based in Philadelphia, Pennsylvania. AGLP is a national organization of 450 LGBTQ+ psychiatrists that educates and advocates on LGBTQ mentalhealth issues. It is the oldest association of LGBTQ+ professionals in the country. AGLP represents the interests of its members, LGBTQ+ patients, and the patients whom AGLP
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members treat in working to influence policies relevant to the LGBTQ+ community and advocating for its members’ patients. AGLP’s goals are to foster a fuller understanding of LGBTQ+ mental-health issues; research and advocate for the best mental healthcare for the LGBTQ community; develop resources to promote LGBTQ mental health; create a welcoming, safe, nurturing, and accepting environment for members; and provide valuable and accessible services to our members. AGLP also assists medical students and residents in their professional development; encourages and facilitates the presentation of programs and publications relevant to LGBTQ concerns at professional meetings; and serves as liaison with other minority and advocacy groups within the psychiatric community. Some of the institutions in which AGLP’s members work receive various forms of federal funding directly or indirectly via federal programs. AGLP’s members therefore are subject to Section 1557 of the ACA and the Revised Rule.
B. Defendants 47. Defendant United States Department of Health and Human Services is a cabinet department of the federal government, headquartered in the District of Columbia. HHS promulgated the Revised Rule and is responsible for its enforcement. HHS is an “agency” within the meaning of the APA. 5 U.S.C. § 551(1). 48. Defendant Alex M. Azar, II is the Secretary of HHS. He is sued in his official capacity. Secretary Azar is responsible for all aspects of the operation and management of HHS, including the adoption, administration, and enforcement of the Revised Rule, and with implementing and fulfilling HHS’s duties under the United States Constitution and the APA. 49. Defendant Roger Severino is the Director of the Office of Civil Rights (“OCR”) at HHS. He is sued in his official capacity. Director Severino is responsible for all aspects of the operation and management of OCR, including the adoption, administration, and enforcement
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of the Revised Rule. As an HHS law enforcement agency, OCR is supposed to ensure equal access to health and human services by enforcing civil rights laws such as Section 1557.
50. Defendant Seema Verma is the Administrator for the Centers for Medicare and Medicaid Services (“CMS”), a component of HHS. She is sued in her official capacity. Administrator Verma is responsible for all aspects of the operation and management of CMS, including the adoption, administration, and enforcement of the Revised Rule as it pertains to regulations relating to the establishment and operation of ACA exchanges; in the marketing and design practices of health insurance issuers under the ACA; in the administration, marketing, and enrollment practices of Qualified Health Plans (“QHPs”) under the ACA; in beneficiary enrollment and the promotion and delivery of services under Medicaid; and in the delivery of services under the Programs for All-Inclusive Care for the Elderly (“PACE”).
FACTUAL ALLEGATIONS I. Discrimination Against Transgender People Prior to the Affordable Care Act
51. Before the Affordable Care Act was enacted in 2010 during the Obama Administration, HHS documented many forms of discrimination against transgender people in accessing health care services, insurance coverage, and facilities.
52. The administrative record documents and demonstrates that, prior to the enactment of the ACA, transgender people experienced significant discrimination from entities providing health care, even for routine medical care. HHS reported that “[f]or transgender individuals, a major barrier to receiving care is a concern over being refused medical treatment based on bias against them.” 81 Fed. Reg. 31,376, 31,460. For example, “[i]n a 2010 report, 26.7% of transgender respondents reported that they were refused needed health care. A 2011 survey revealed that 25% of transgender individuals reported being subject to harassment in medical settings.” Id.
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53. Some entities providing insurance or health care discriminated against transgender patients by refusing to cover medically necessary treatments for gender dysphoria in accordance with accepted standards of care. Gender dysphoria is a serious medical condition codified in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) and International Classification of Diseases (ICD-11). The criteria for diagnosing gender dysphoria are set forth in the DSM-V (302.85). The World Professional Association for Transgender Health (“WPATH”) publishes widely accepted standards of care for treating gender dysphoria. Leading medical organizations and federal courts have recognized the WPATH Standards of Care as the authoritative standards of care. The overwhelming consensus among medical experts and every major medical organization is that treatments for gender dysphoria, including surgical procedures, are effective, safe, and medically necessary when clinically indicated to alleviate gender dysphoria.
54. Prior to the enactment of the ACA, however, insurance companies routinely excluded coverage for transition-related care based on the misguided assumption that such treatments were cosmetic and experimental. Today, medical consensus recognizes that such exclusions have no basis in medical science.6
55. Those discriminatory exclusions prevented transgender people from obtaining medically necessary treatment for gender dysphoria. See 81 Fed. Reg. at 31,460. As a result, transgender people were more likely to lack health insurance and suffer significant health disparities, including high rates of untreated mental health needs, suicide attempts, and HIV. Id.
6 See Decision No. 2576, National Coverage Determination 140.3: Transsexual Surgery at 18 (Docket No. A-13-87) (U.S. Dep’t of Health & Human Servs. Appeals Bd. App. Div. 2014), https://perma.cc/3BGA-F9DH.
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II. Section 1557 of the Affordable Care Act
56. On March 23, 2010, Congress enacted the Patient Protection and Affordable Care
Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), recognizing the importance of
providing patients with prompt and nondiscriminatory access to medical care and to information
about all treatment options.
57. Section 1554 of the ACA provides:
Notwithstanding any other provision of this Act, the Secretary of Health and Human Services shall not promulgate any regulation that—
(1) creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care;
(2) impedes timely access to healthcare services;
(3) interferes with communications regarding a full range of treatment options between the patient and the provider;
(4) restricts the ability of healthcare providers to provide full disclosure of all relevant information to patients making healthcare decisions;
(5) violates the principles of informed consent and the ethical standards of healthcare professionals; or
(6) limits the availability of healthcare treatment for the full duration of a patient’s medical needs.
42 U.S.C. § 18114.
58. Section 1557 of the ACA protects against discrimination in the provision of health
care services. It provides, in relevant part:
Except as otherwise provided for in this title [I] (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 794 of Title 29 [Section 504 of the Rehabilitation Act of 1973], be excluded from participation in, be denied the
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benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title [I] (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section 794, or such Age Discrimination Act shall apply for purposes of violations of this subsection. 42 U.S.C. § 18116(a). 59. Section 1557 prohibits discrimination based on sex, including discrimination based on a patient’s gender identity, transgender status, sexual orientation, and failure to conform to sex stereotypes, all of which are forms of sex discrimination. It also prohibits discrimination on the basis of race, color, national origin, age, and disability. 60. Section 1557 provides that “[t]he enforcement mechanisms provided for and available under such title VI, title IX, section 794, or such Age Discrimination Act shall apply for purposes of violations of this subsection.” Id. § 18116(a). 61. Section 1557 further provides that the Secretary of HHS “may promulgate regulations to implement this section.” Id. § 18116(c). 62. The ACA covers nearly every health care provider in the country. III. The 2016 Final Rule 63. On May 18, 2016, HHS published a final rule implementing Section 1557. See Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376 (May 18, 2016) (formerly codified at 45 C.F.R. pt. 92) (the “2016 Final Rule”). A copy of the 2016 Final Rule is attached as Exhibit 1. 64. In implementing Section 1557’s prohibition of discrimination “on the basis of . . . sex,” the 2016 Final Rule defined “on the basis of sex” to include “discrimination on the basis of
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. . . sex stereotyping, and gender identity.” 81 Fed. Reg. at 31,467 (formerly codified at 45 C.F.R. § 92.4).7
65. The 2016 Final Rule defined “gender identity” as “an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.” Id. In the 2016 Final Rule, HHS emphasized that “even where it is permissible to make sex-based distinctions, individuals may not be excluded from health programs and activities for which they are otherwise eligible based on their gender identity.” 81 Fed. Reg. at 31,409.
66. The 2016 Final Rule defined “sex stereotypes” as stereotypical notions of masculinity or femininity, including expectations of how individuals represent or communicate their gender to others, such as behavior, clothing, hairstyles, activities, voice, mannerisms, or body characteristics. These stereotypes can include the expectation that individuals will consistently identify with only one gender and that they will act in conformity with the gender-related expressions stereotypically associated with that gender. Sex stereotypes also include gendered expectations related to the appropriate roles of a certain sex.
81 Fed. Reg. at 31,468 (formerly codified at 45 C.F.R. § 92.4). 67. In defining “on the basis of sex” to include “discrimination on the basis of . . . sex
stereotyping, and gender identity,” HHS explained that “courts, including in the context of Section 1557, have recognized that sex discrimination includes discrimination based on gender
7 Although OCR stated in 2016 “that current law is mixed on whether existing Federal nondiscrimination laws prohibit discrimination on the basis of sexual orientation as a part of their prohibitions on sex discrimination,” 81 Fed. Reg. at 31388, the Supreme Court now has definitively answered this question by holding in Bostock that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” 2020 WL 3146686, at *7.
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identity. Thus, we proposed to adopt formally this well-accepted interpretation of discrimination ‘on the basis of sex.’” 81 Fed. Reg. at 31,387-88.
68. The 2016 Final Rule also prohibited discrimination based on association – that is, it prohibited discrimination against a person on the basis of the sex, race, color, national origin, age, or disability of “an individual with whom the individual or entity is known or believed to have a relationship or association.” 81 Fed. Reg. at 31,472 (formerly codified at 92 C.F.R. § 209). HHS explained that a “prohibition on associational discrimination is consistent with longstanding interpretations of existing antidiscrimination laws, whether the basis of discrimination is a characteristic of the harmed individual or an individual who is associated with the harmed individual.” 81 Fed. Reg. at 31,439. It also is consistent with the Age Discrimination Act, which includes a specific prohibition of discrimination based on association with an individual with a disability. Id.; see also 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. § 35.130(g).
69. The 2016 Final Rule also recognized that Section 1557 not only prohibits intentional discrimination on the basis of sex, it also prohibits conduct and practices “that have the effect of subjecting individuals to discrimination on the basis of sex,” which can give rise to disparate impact claims. 81 Fed. Reg. at 31,470 (formerly codified at 45 C.F.R. § 92.101(b)(3)(ii)) (emphasis added).
70. The 2016 Final Rule applied to “every health program or activity, any part of which receives Federal financial assistance provided or made available by the Department; every health program or activity administered by the Department; and every health program or activity administered by a Title I entity.” 81 Fed. Reg. at 31,466 (formerly codified at 45 C.F.R.
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§ 92.2(a)). HHS estimated that the rule would “likely cover almost all licensed physicians because they accept Federal financial assistance.” 81 Fed. Reg. at 31,445.
71. With respect to health care insurance providers or employee benefits plans, the 2016 Final Rule specifically required covered entities to treat individuals consistent with their gender identity. See 81 Fed. Reg. at 31,471 (formerly codified at 45 C.F.R. § 92.206). And it prohibited covered entities from having or implementing “a categorical coverage exclusion or limitation for all health care services related to gender transition,” 81 Fed. Reg. at 31,472 (formerly codified at 45 C.F.R. § 92.207(b)(4)), because such an exclusion is “discriminatory on its face,” 81 Fed. Reg. at 31,456. In adopting these provisions, HHS explained that blanket “exclusions of coverage for all care related to gender dysphoria or associated with gender transition” were “outdated and not based on current standards of care.” 81 Fed. Reg. at 31,429.
72. The “range of transition-related services” the 2016 Final Rule contemplated were “not limited to surgical treatments and may include, but [were] not limited to, services such as hormone therapy and psychotherapy, which may occur over the lifetime of the individual.” 81 Fed. Reg. at 31,435-36.
73. Consistent with the plain language of Section 1557, which provides that the “enforcement mechanisms provided for and available under such title VI, title IX, section 794, or such Age Discrimination Act shall apply for purposes of violations” of Section 1557, 42 U.S.C. § 18116(a) (emphasis added), the 2016 Final Rule adopted a unitary legal standard for addressing discrimination in health care and enforcing Section 1157. The 2016 Final Rule provided: “The enforcement mechanisms available for and provided under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, or the Age Discrimination Act of 1975 shall apply for purposes of
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Section 1557 as implemented by this part.” 81 Fed. Reg. at 31,472 (formerly codified at 45 C.F.R. § 92.301) (emphasis added).
74. In the preamble to the 2016 Final Rule, HHS clarified that all enforcement mechanisms available under the statutes listed in Section 1557 are available for purposes of Section 1557 enforcement, regardless of an individual’s protected characteristic or characteristics. Otherwise, different enforcement mechanisms and standards would apply depending on whether an individual’s claim is based on her sex, race, age, or disability. 81 Fed. Reg. at 31,439-40. HHS thus interpreted Section 1557 as “authorizing a private right of action for claims of disparate impact discrimination on the basis of any of the criteria enumerated in the legislation.” Id. at 31,440.
75. The 2016 Final Rule also specifically recognized that a private right of action is available under Section 1557 and compensatory damages are available. See 81 Fed. Reg. at 31,472 (formerly codified at 45 C.F.R. §§ 92.301(b), 92.302(d)). HHS explained that its “interpretation of Section 1557 as authorizing compensatory damages is consistent with our interpretations of Title VI, Section 504, and Title IX.” 81 Fed. Reg. at 31,440.
76. The 2016 Final Rule did not incorporate Title IX’s blanket religious exemption because Section 1557 “contains no religious exemption.” 81 Fed. Reg. at 31,380. In declining to import Title IX’s religious exemption, HHS further explained that “Title IX and its exemption are limited in scope to educational institutions, and there are significant differences between the educational and health care contexts that warrant different approaches.” Id. HHS noted that “a blanket religious exemption could result in a denial or delay in the provision of health care to individuals and in discouraging individuals from seeking necessary care, with serious and, in some cases, life threatening results.” Id.
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77. After a careful and deliberate analysis, HHS determined that a “more nuanced approach in the health care context” was warranted. Id. The 2016 Final Rule provided: “Insofar as the application of any requirement under this part would violate applicable Federal statutory protections for religious freedom and conscience, such application shall not be required.” 81 Fed. Reg. at 31,466 (formerly codified at 45 C.F.R. § 92.2(b)(2)).
78. The 2016 Final Rule also included provisions to ensure that the approximately 25 million Americans who are Limited English Proficient (LEP)8 have access to the health care they need. The 2016 Final Rule required health care providers and other covered entities to post nondiscrimination notices and include taglines in the top 15 languages spoken throughout the state with all significant publications and communications. See 81 Fed. Reg. at 31,469 (formerly codified at 45 C.F.R. § 92.8).
79. The 2016 Final Rule also included standards that governed access to language assistance services for LEP individuals by requiring that language interpreters be “qualified” and that when covered entities video interpretation services to LEP individuals, it be real-time and high quality. See 81 Fed. Reg. at 31,470-71 (formerly codified at 45 C.F.R. § 92.201).
80. The promulgation of the 2016 Final Rule led to a decrease in discriminatory policies and practices.9 For example, a recent study of 37 states in the federal marketplace
8 U.S. Census Bureau, Language Spoken at Home, American Community Survey 2018 1-Year Estimates Subject Tables, tbl. S1601 (2018), https://perma.cc/Z452-RSWR; U.S. Census Bureau, Characteristics of People by Language Spoken at Home, American Community Survey 2018 1Year Estimates Subject Tables, tbl. S1603, https://perma.cc/R59J-HG4K. 9 See Gruberg & Bewkes, The ACA’s LGBTQ Nondiscrimination Regulations Prove Crucial, https://perma.cc/CTP2-UMEJ.
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showed that, in 2019, 97% of plans did not contain blanket exclusions of transition-related care.10 IV. The Trump Administration’s Proposed Revision to the 2016 Final Rule
81. On June 14, 2019, the Trump Administration issued a Notice of Proposed Rulemaking, proposing to “make substantial revisions” to the 2016 Final Rule, including repealing certain provisions. See Notice of Proposed Rulemaking, Nondiscrimination in Health and Health Education Programs or Activities, 84 Fed. Reg. 27,846, 27,848 (June 14, 2019) (“Proposed Rule”).
82. In an attempt to explain why it was reversing course merely three years after the 2016 Final Rule went into effect, HHS stated it was revising the implementing regulations “to better comply with the mandates of Congress, address legal concerns, relieve billions of dollars in undue regulatory burdens, further substantive compliance, reduce confusion, and clarify the scope of Section 1557 in keeping with existing civil rights statutes and regulations prohibiting discrimination on the basis of race, color, national origin, sex, age, and disability.” 84 Fed. Reg. at 27,846.
83. HHS further claimed that the 2016 Final Rule “exceeded its authority under Section 1557, adopted erroneous and inconsistent interpretations of civil rights law, caused confusion, and imposed unjustified and unnecessary costs.” Id. at 27,849.
84. These purported justifications do not withstand scrutiny. 85. HHS received nearly 200,000 comments during the public comment period. The comments that HHS received identified and expressed concerns about many of HHS’s proposed
10 Out2Enroll, Summary of Findings: 2020 Marketplace Plan Compliance with Section 1557, https://perma.cc/WU25-C9BN. This finding is consistent with summaries from 2017, 2018, and 2019.
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revisions, including many of the same issues that form the basis of this complaint. Commenters emphasized that the following actions, taken individually or combined, will cause immediate and irreparable harm to LGBTQ people and their families:
a. Eliminating the definition of “on the basis of sex” and the specific prohibition on discrimination on the basis of gender identity and sex stereotyping is arbitrary and capricious, not the result of reasoned decision-making, contrary to law, and invites covered health care providers and insurers to discriminate against transgender people;
b. Eliminating a unitary legal standard for enforcing violations of Section 1557 and replacing it with a fractured and complex set of procedures is contrary to the plain language of Section 1557 and Congress’s intent, and will complicate and make it more difficult to bring discrimination claims, particularly claims of intersectional discrimination;
c. Incorporating sweeping religious exemptions is contrary to the statutory language of Section 1557 and will create significant burdens on patients and providers;
d. Eliminating notice requirements and critical language access provisions that ensure LEP individuals can access necessary health care is arbitrary and capricious, contrary to statutory intent, and will make it more difficult for LEP patients to understand their health care rights, communicate with doctors and other health care workers, and navigate complex insurance and medical documents with specialized terminology, and cause an increase in patients who will delay or not seek care at all;
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e. Excluding from Section 1557 health programs and activities that HHS administers but are not established under Title I of the ACA and health insurance plans outside of Title I of the ACA that do not receive Federal financial assistance is inconsistent with Section 1557 and will cause drastic reductions in protections for LGBTQ people;
f. Eliminating gender identity and sexual orientation protections in unrelated regulations is procedurally improper, arbitrary and capricious, and contrary to law; and
g. Eliminating protections relating to discrimination on the basis of association is arbitrary and capricious and contrary to law.
V. The Revised Rule 86. Despite the significant concerns raised during the comment period, HHS
published the Revised Rule in the Federal Register on June 19, 2020, making only “minor and primarily technical corrections.” See Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160, 37,161 (June 19, 2020). A copy of the Revised Rule is attached as Exhibit 2 and incorporated by reference.
87. In adopting the Revised Rule, HHS failed to address adequately many of the serious issues commenters raised, including concerns that the proposed elimination of the definition of “on the basis of sex,” which the 2016 Final Rule defined to include gender identity and sex stereotyping, would invite discrimination against LGBTQ people. See 85 Fed. Reg. at 37,165, 37,180.
88. Relying essentially on one federal district court opinion—Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016)—which the preamble cites more than 40 times, HHS takes the position that “the ordinary public meaning of the term ‘sex’ in Title IX is
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unambiguous” and refers to a “biological binary meaning of sex,” 85 Fed. Reg. at 37,178-80, and discrimination on the basis of sex under Title IX does not encompass discrimination on the basis of gender identity or sex stereotyping, 85 Fed. Reg. at 37,183-86.
89. HHS explicitly rejected comments urging it to wait until the Supreme Court decided Bostock and related cases because of the potential implications for the Revised Rule. See 85 Fed. Reg. at 37,168. Despite acknowledging that “a holding by the U.S. Supreme Court on the meaning of ‘on the basis of sex’ under Title VII will likely have ramifications for the definition of ‘on the basis of sex’ under Title IX,” because “Title VII case law has often informed Title IX case law with respect to the meaning of discrimination ‘on the basis of sex,’” id., HHS stated it was sticking with the position the federal government had taken in Bostock and related cases that “discrimination ‘on the basis of sex’ in Title VII and Title IX does not encompass discrimination on the basis of sexual orientation or gender identity,” id.
90. HHS further asserted that even if the Supreme Court determined that the prohibition on sex discrimination in Title VII encompassed gender identity and sexual orientation, such a ruling may not fully address the implications for the health care context. 85 Fed. Reg. at 37,168.
91. Among other revisions, the Revised Rule: a. Repeals the definition of “on the basis of sex” and the specific prohibition of discrimination on the basis of gender identity and sex stereotyping, see 85 Fed. Reg. at 37,161-62; b. Repeals the unitary legal standard for enforcing violations of Section 1557 and eliminates provisions recognizing a private right of action and compensatory damages, see 85 Fed. Reg. at 37,162;
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c. Incorporates sweeping religious exemptions, see id.; d. Repeals notice requirements and access to language provisions, see id.; e. Excludes from the scope of Section 1557 certain health programs and
activities and health insurance plans, see id.; f. Repeals gender identity and sexual orientation protections in unrelated
regulations, see id.; and g. Repeals provisions relating to discrimination on the basis of association,
see id. 92. These changes are arbitrary and capricious, not the process of reasoned decisionmaking, contrary to the statutory language and Congress’s intent, not in accordance with law, in excess of HHS’s statutory authority, and unconstitutional. VI. HHS’s Repeal of the Definition of “On the Basis of Sex” and Protections Against Discrimination on the Basis of Gender Identity and Sex Stereotyping Is Arbitrary and Capricious and Contrary to Law 93. Section 1557 prohibits sex discrimination. In line with that prohibition, the 2016 Final Rule included a definition of “on the basis of sex” that explicitly prohibited discrimination on the basis of gender identity and sex stereotyping, among other grounds. See 81 Fed. Reg. at 31,467 (formerly codified at 45 C.F.R. § 92.4). 94. The Revised Rule repeals entirely the 2016 Final Rule’s definition of discrimination “on the basis of sex,” without providing a different definition. Although HHS’s Notice of Proposed Rulemaking stated HHS was declining to define the term because “of the likelihood that the Supreme Court will be addressing the issue in the near future,” 84 Fed. Reg. at 27,857, HHS did not wait for the Supreme Court to decide whether discrimination on the basis of “sex” encompasses discrimination against LGBTQ people.
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95. Instead, it staked its elimination of the definition of “on the basis of sex” on the Franciscan Alliance decision and the government’s position in the Bostock litigation “that discrimination ‘on the basis of sex’ in Title VII and Title IX does not encompass discrimination on the basis of sexual orientation or gender identity.” 85 Fed. Reg. at 37,168.
96. The Supreme Court now has conclusively rejected that position, holding “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual on the basis of sex.” Bostock, 2020 WL 3146686, at *7. Bostock’s conclusion that discrimination “on the basis of sex” encompasses claims of discrimination based on transgender status and sexual orientation affirms the validity of the substantial body of case law that formed the basis of the 2016 Final Rule. See 81 Fed. Reg. at 31,387-90, 31,392.
97. The Revised Rule’s repeal of the definition of “on the basis of sex” and elimination of the protections for LGTBQ people against discrimination is contrary to law and will invite health care insurers and providers to discriminate against LGBTQ people seeking health care. It also introduces substantial confusion among health care providers and insurers regarding their legal obligations and the right of the populations they serve to be free from discrimination, particularly in light of the Supreme Court’s ruling in Bostock.
98. The Revised Rule also eliminates the provisions in the 2016 Final Rule specifically requiring covered entities to treat individuals consistent with their gender identity and prohibiting covered entities from having or implementing “a categorical coverage exclusion or limitation for all health care services related to gender transition.” Compare 81 Fed. Reg. at 31,471-72 (formerly codified at 45 C.F.R. §§ 92.101(b)(3)-(4)), with 85 Fed. Reg. at 37,187-88.
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99. HHS claims this provision inappropriately interfered with the ethical and medical judgment of health professionals. See 85 Fed. Reg. at 37,187-88. However, as the 2016 Final Rule demonstrates, prohibiting the exclusion or denial of health programs or activities on the basis of an individual’s LGBTQ status does not prevent medical providers from providing appropriate medical advice.
100. The Revised Rule also eliminates the provision in the 2016 Final Rule that prohibited a covered entity from discriminating against an individual based on those with whom they are known or believed to have a relationship or to be associated. Compare 81 Fed. Reg. at 31,472 (formerly codified at 45 C.F.R. § 92.209), with 85 Fed. Reg. at 37,199-200. The 2016 Final Rule grounded this provision on a thorough examination of existing case law. See 81 Fed. Reg. at 31,438-39.
101. Former Section 92.209 accurately reflected current law. HHS has provided no good reason to eliminate it. Its decision to do so is arbitrary and capricious and contrary to the law, in violation of the APA. VII. The Revised Rule’s Repeal of the Unitary Standard Is Arbitrary and Capricious
and Contrary to Law 102. Section 1557 provides: “The enforcement mechanisms provided for and available under such title VI, title IX, section 794, or such Age Discrimination Act shall apply for purposes of violations of [Section 1557].” 42 U.S.C. § 18116(a) (emphasis added). Congress’s use of the disjunctive “or” indicates that the enforcement mechanisms applicable under any of the incorporated statutes are available to every claim of discrimination under Section 1557, regardless of the particular type of discrimination. 103. During the notice-and-comment period on the 2016 Final Rule, commenters pointed to the plain language of Section 1557 and asked HHS to “clarify that all enforcement
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mechanisms available under the statutes listed in Section 1557 are available to each Section 1557 plaintiff, regardless of the plaintiff’s protected class. Thus, for example, an individual could bring a race claim under the Age Act procedure and an age claim under the Title VI procedure.” 81 Fed. Reg. at 31,439.
104. As commenters emphasized, by enacting Section 1557, Congress intended to create a new health-specific, anti-discrimination cause of action subject to a singular standard regardless of a person’s protected characteristic. Otherwise, different enforcement mechanisms and standards would apply depending on whether an individual’s claim is based on their sex, race, national origin, age, or disability, in which case a person who faces intersectional discrimination – that is, discrimination based on more than one ground – would have different remedies and enforcement mechanisms for the same conduct under the same law. Id. at 31,43940.
105. In response, HHS stated: “OCR interprets Section 1557 as authorizing a private right of action for claims of disparate impact on the basis of any of the criteria enumerated in the legislation.” Id. at 31,440.
106. The 2016 Final Rule specified, consistent with this interpretation, that Section 1557 not only prohibits intentional discrimination on the basis of sex, but also conduct and practices “that have the effect of subjecting individuals to discrimination on the basis of sex” – conduct that can give rise to disparate impact claims based on sex. 81 Fed. Reg. at 31,470 (formerly codified at 45 C.F.R. § 92.101(b)(3)(ii)) (emphasis added).
107. The 2016 Final Rule implemented Section 1557’s directives regarding enforcement by promulgating 45 C.F.R. § 92.301, which provided: “The enforcement mechanisms available for and provided under Title VI of the Civil Rights Act of 1964, Title IX
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of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, or the Age Discrimination Act of 1975 shall apply for purposes of Section 1557 as interpreted by this part.” 81 Fed. Reg. at 31,472 (formerly codified at 45 C.F.R. § 92.301(a)) (emphasis added).
108. In addition, the 2016 Final Rule specified that a private right of action is available under Section 1557 and compensatory damages are available. See 81 Fed. Reg. at 31,472 (formerly codified at 45 C.F.R. §§ 92.301(b), 92.302(d)). HHS explained that its “interpretation of Section 1557 as authorizing compensatory damages is consistent with our interpretations of Title VI, Section 504, and Title IX.” 81 Fed. Reg. at 31,440.
109. Under these regulations, individuals bringing claims of intersectional discrimination, i.e., discrimination based on multiple characteristics, would not need to litigate their claims under different standards and different enforcement mechanisms.
110. The Revised Rule, however, without reasoned explanation, rejects the 2016 Final Rule’s establishment of a unitary legal standard and enforcement mechanism under Section 1557, limiting the remedies available from claims of discrimination based on a characteristic listed in Section 1557 to only those remedies available under the statute from which the characteristic was incorporated. HHS acknowledged commenters raised concerns about intersectional discrimination but brushed them aside by noting that OCR accepts complaints that allege discrimination based on more than one protected status. 85 Fed. Reg. at 37,199-200.
111. HHS claims the 2016 Final Rule applied the enforcement mechanisms in existing statutes “in a confusing and inconsistent manner,” 85 Fed. Reg. at 37,202, and resulted in “a new patchwork regulatory framework unique to Section 1557 covered entities,” 85 Fed. Reg. at 37,162.
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112. The 2016 Final Rule accomplished precisely the opposite. It established a consistent, unitary legal standard and enforcement mechanism as Section 1557 contemplates. It is HHS’s arbitrary and capricious elimination of a unitary standard that creates a confusing and patchwork approach, applying different remedies and enforcement mechanisms to discriminatory conduct that arises under a single statute – Section 1557.
113. The Revised Rule also eliminates, without providing a reasoned explanation, the provisions in the 2016 Final Rule expressly recognizing a private right of action to “challenge a violation of Section 1557 or this part.” Compare 81 Fed. Reg. at 31,472 (formerly codified 45 C.F.R. § 92.302(d)), with 85 Fed. Reg. at 37,203.
114. HHS eliminated the private right of action provision even though the existence of such a right is clear from the statutory language of Section 1557, which explicitly references and incorporates the “enforcement mechanisms” of four civil rights laws, all of which have a private right action, and even though every court that has ruled on the question has held that the statutory language of Section 1557 confers a private right of action.
115. The Revised Rule also eliminates, without providing a reasoned explanation, § 92.301(b) of the 2016 Final Rule that recognized “[c]ompensatory damages for violations of Section 1557 are available in appropriate administrative and judicial actions brought under this rule.” 81 Fed. Reg. at 31,472 (formerly codified 45 C.F.R. § 301(b)). The only justification HHS offers is that “the Department has concluded that its enforcement of Section 1557 should conform to the Department of Justice’s Title VI Manual,” which states that “under applicable Federal case law, compensatory damages are generally unavailable for claims based solely on a Federal agency’s disparate impact regulations.” 85 Fed. Reg. at 37,202.
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116. HHS ignores entirely its own statement in the preamble to the 2016 Final Rule that its interpretation of Section 1557 as authorizing compensatory damages was consistent with HHS’s “interpretations of Title VI, Section 504, and Title IX,” as providing for compensatory damages. See 81 Fed. Reg. at 31,440. HHS’s elimination of the provision recognizing the availability of compensatory damages also is inconsistent with controlling U.S. Supreme Court decisions holding that damages are available under these civil rights statutes.
117. HHS’s unreasonable interpretation of Section 1557 is arbitrary, capricious, and contrary to law in that it fails to follow the statutory language of Section 1557 and apply each of the “enforcement mechanisms” available under each of the civil rights statutes incorporated into Section 1557 to every claim of discrimination arising under Section 1557 regardless of the basis. HHS’s arbitrary and capricious elimination of provisions recognizing a private right of action under Section 1557 and the availability of compensatory damages likewise is contrary to the plain language of the statute and the law.
118. Although HHS cannot change the law, its fracturing of the consolidated procedures established in the 2016 Final Rule undermines Congress’s intent to create a new, health-specific anti-discrimination cause of action and will make it more difficult to bring discrimination claims under Section 1557. HHS’s elimination of the private right of action and compensatory damages provisions also will confuse the public and mislead some persons into not asserting their legal rights. VIII. The Revised Rule’s Incorporation of Sweeping Religious Exemptions Conflicts with
the Statutory Language of Section 1557 and Is Inappropriate in the Health Care Context 119. The 2016 Final Rule included a provision stating that covered entities do not have to comply with Section 1557 if doing so would violate applicable federal statutory protections
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for religious conscience and freedom. See 81 Fed. Reg. at 31,466 (formerly codified at 45 C.F.R. § 92.2(b)(2)).
120. HHS considered incorporating Title IX’s blanket religious exemptions into Section 1557, but after careful consideration and deliberation, HHS declined to do so in the 2016 Final Rule. 81 Fed. Reg. at 31,379-80. Title IX’s religious exemption by its terms applies only to educational institutions and programs, not health care providers or health plans. It protects religiously-controlled educational institutions and programs from requirements that violate their religious tenets. See 20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12. For example, religious schools that believe only men can be priests, rabbis, or ministers are not required to admit women to training programs for the priesthood, rabbinate, or ministry.
121. In declining to import Title IX’s blanket religious exemption into Section 1557, HHS explained that Section 1557, unlike Title IX, does not include a religious exemption. It further explained that Title IX’s blanket exemption would be inappropriate in the health care setting because it is framed for educational institutions, which are very different from health care settings, and those differences “warrant different approaches.” 81 Fed. Reg. at 31,380.
122. HHS noted that, unlike the educational context where individuals may select a religious educational institution by choice, in the health care context, individuals may have limited or no choice of providers. Id. In addition, “a blanket religious exemption could result in a denial or delay in the provision of health care to individuals and in discouraging individuals from seeking necessary care, with serious and, in some cases, life threatening results.” Id.
123. HHS determined that a “more nuanced approach in the health care context” was warranted. Id. As a result, the 2016 Final Rule provided: “Insofar as the application of any requirement under this part would violate applicable Federal statutory protections for religious
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freedom and conscience, such application shall not be required.” 81 Fed. Reg. at 31,466 (formerly codified at 45 C.F.R. § 92.2(b)(2)).
124. The Revised Rule upends this nuanced and carefully considered approach by explicitly identifying and incorporating sweeping religious exemptions from a number of different statutes. Not only does the Revised Rule incorporate the Title IX religious exemptions, it also incorporates “definitions, exemptions, affirmative rights, or protections” from unrelated statutes. 85 Fed. Reg. at 37,245 (to be codified at 45 C.F.R. § 92.6(b)).
125. The inclusion of sweeping religious exemptions in Section 1557 is contrary to the statutory language of Section 1557, which by its terms does not incorporate any exemptions from Title IX or any other statute. Section 1557 expressly incorporates the enforcement mechanisms from four civil rights statutes, but pointedly does not incorporate the religious exemptions from Title IX or any other statute.
126. Religiously affiliated hospitals and health care systems occupy a large and growing percentage of health care markets. The Revised Rule’s sweeping religious exemptions to Section 1557’s prohibitions on discrimination will invite these institutions to allow their religious beliefs to determine patient care, contrary to medical standards and the health of an increasing number of individuals.
127. The Revised Rule also invites individual health care providers to deny care to LGBTQ patients on the basis of their individual religious beliefs. It prioritizes the protection of individual conscience and religious freedom rights over ensuring that LGBTQ people receive the health care to which they are entitled. See 85 Fed. Reg. at 37,206.
128. The Revised Rule’s religious exemptions disproportionately harm LGBTQ people, who often are refused health care because of their sexual orientation or gender identity.
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According to a 2018 study, 8% of LGBTQ people were refused health care because of their sexual orientation, and 29% of transgender people were denied care because of their gender identity.11
129. When LGBTQ people are denied care, it becomes difficult and sometimes impossible to find another provider, especially for those who live in rural areas and for transgender people. In one recent study, 18% of LGBTQ people said it would be very difficult if not impossible to find the same type of service in another hospital. Outside of a metropolitan area, 41% of respondents stated that, if they were denied treatment, it would be very difficult if not impossible to find the same service at a different location.12
130. These religious exemptions also will frustrate the ability of organizations who provide health care to LGBTQ patients to accomplish their missions. Individual health care providers employed by these organizations may choose to deny care to LGBTQ patients, claiming that doing so would violate their religious beliefs. This denial of care would harm the ability of these organizations to treat their patients effectively. These exemptions also would impair the ability of these organizations to refer their LGBTQ patients to other health care providers because they would be unsure whether these providers would invoke these exemptions to deny care to LGBTQ patients.
11 Shabab Ahmed Mirza & Caitlin Rooney, Discrimination Prevents LGBTQ People From Accessing Health Care, Center for American Progress (Jan. 18, 2018), https://perma.cc/ZG7E7WK8. 12 Id.
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IX. The Revised Rule’s Elimination of Notices of Nondiscrimination Rights and Language Access Provisions Is Arbitrary and Capricious and Contrary to Statutory Intent 131. More than 25 million Americans are of LEP, meaning they speak, read, or write
English less than “very well.”13 An estimated 6.5 million LEP adults are uninsured.14 132. The 2016 Final Rule contained a number of provisions to ensure that LEP patients
understand their rights and are able to communicate fully and effectively with their providers and other health care staff. The 2016 Final Rule required covered entities to provide notice of nondiscrimination policies, including notice of availability of and how to access language assistance services. 81 Fed. Reg. at 31,469 (formerly codified at 45 C.F.R. § 92.8(a)).
133. In addition, covered entities were required to include taglines on all significant documents in the top fifteen languages spoken by individuals with LEP in their state. 81 Fed. Reg. at 31,469 (formerly codified at 45 C.F.R. § 92.8(d)(1)). Taglines are short statements that inform individuals of their right to language assistance and how to seek such assistance.
134. The 2016 Final Rule also required that a covered entity with at least 15 employees designate a specific individual or individuals with responsibility to oversee compliance with Section 1557, including LEP efforts, and investigate complaints and concerns and establish and adhere to a specific grievance procedure. 81 Fed. Reg. at 31,469 (formerly codified at 45 C.F.R. § 92.7).
13 See U.S. Census Bureau, Language Spoken at Home, American Community Survey 2018 1Year Estimates Subject Tables, tbl. S1601 (2018), https://perma.cc/Z452-RSWR; U.S. Census Bureau, Characteristics of People by Language Spoken at Home, American Community Survey 2018 1-Year Estimates Subject Tables, tbl. S1603, https://perma.cc/R59J-HG4K. 14 See Letter from Kathy Ko Chin, President & CEO, Asian & Pacific Islander American Health Forum, to Roger Severino, Dir., Office of Civil Rights, U.S. Dep’t Health & Hum. Servs., at 21 (Aug. 13, 2019), https://perma.cc/6HWW-6833.
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135. The Revised Rule repeals §§ 92.7 and 92.8 of the 2016 Final Rule, eliminating the notice and tagline requirements and the requirement to designate a specific individual to oversee Section 1557 compliance, including LEP efforts, and grievance procedure requirements. See 85 Fed. Reg. at 37,204.
136. The elimination of the notice, tagline, and LEP requirements is arbitrary and capricious and will result in some LEP patients failing to understand or assert their rights. It also will result in some LEP patients failing to receive adequate care because of the difficulties patients may have in understanding their providers or other staff, undermining the purpose and intent of the nondiscrimination provisions of Section 1557.
137. HHS has not explained how individuals will know about their rights and how elimination of notices will not deny LEP individuals meaningful access to health care. X. The Revised Rule’s Attempt to Narrow paduthe Scope of Health Programs and
Activities Subject to Section 1557 is Arbitrary and Capricious and Contrary to Law 138. The plain language of Section 1557 prohibits discrimination based on sex, race, color, national origin, age, and disability under:
any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under [Title I of the ACA] (or amendments). 42 U.S.C. § 18116(a). 139. The 2016 Final Rule correctly interpreted Section 1557 to cover all health-related operations and programs of any health care or health insurance provider, if any part of its operations receives Federal financial assistance; any other health program or activity that HHS administers; or any health insurance exchange or other entity established under ACA Title I or health insurance-exchange-related insurance plan.
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140. The Revised Rule attempts to limit the scope of Section 1557 in two principal ways. First, it applies Section 1557’s nondiscrimination protections only to health programs or activities of HHS that are administered under Title I of the ACA, not to other health programs and activities that HHS administers. 85 Fed. Reg. at 37,244 (to be codified at 45 C.F.R. § 92.3(a)(2)). Such a limitation excludes from Section 1557 numerous HHS health programs and activities, including health programs and activities of the Centers for Medicare and Medicaid Services, the Centers for Disease Control and Prevention, the National Institutes of Health, and the Substance Abuse and Mental Health Services Administration.
141. The Revised Rule’s interpretation of the scope of Section 1557 is inconsistent with and contradicts the plain language of Section 1557, which states that it applies to “any program or activity that is administered by an Executive Agency.” 42 U.S.C. § 18116(a). It does not limit Section 1557 to health programs and activities established or administered under ACA Title I.
142. Second, the Revised Rule erroneously declares that health insurers are not a “health program or activity” under Section 1557 and not subject to Section 1557’s nondiscrimination prohibitions because, now according to HHS, they are not “principally engaged in the business of providing healthcare.” 85 Fed. Reg. at 37,244-45 (to be codified at 45 C.F.R. § 92.3(c)).
143. By declaring that health insurance providers are not principally engaged in the business of providing health care, HHS purports to exclude health insurance providers from the requirements of Section 1557, except for plans offered on the Health Insurance Marketplace or Federally-facilitated Marketplace created under Title I and insurance plans outside of Title I that receive Federal financial assistance. For those health insurers that operate plans outside of Title I
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but receive Federal financial assistance, the Revised Rule further limits the application of Section 1557 to only those operations that receive Federal financial assistance—all other operations of the insurer are excluded. 85 Fed. Reg. at 37,244 (to be codified at 45 C.F.R. § 92.3(b)).
144. This Revised Rule exempts many plans, products, and operations of many health insurance issuers, such as self-funded group health plans, the Federal Employees Health Benefits (FEHB) Program, and short-term limited duration insurance plans. 85 Fed. Reg. at 37,173-74.
145. To support its new interpretation, HHS contends that providing “health insurance” is different than providing “healthcare” and points to the definitions of “healthcare” and “health insurance” in unrelated statutes to support its distinction. 85 Fed. Reg. at 37,172-73.
146. But Section 1557 covers “health programs and activities,” not just direct health care. Health insurance clearly is a health-related program or activity. It is what enables the vast majority of Americans to access health care. Indeed, health insurance companies design the health care individuals receive by determining benefits offered and establishing formularies, payment structures, and networks. They also conduct prior authorization and establish and evaluate other clinical coverage criteria, as well as exercise considerable control over the health care of enrollees—deciding which providers a patient may see, what hospitals they may visit, and what treatments or medications they may receive.
147. Neither the plain language of Section 1557 nor HHS’s effort to rely on unrelated statutes supports HHS’s unreasonable assertion that “healthcare” is different than “health insurance.” Section 1557 explicitly provides that it covers “health programs and activities.” Its scope is not limited to direct health care.
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XI. The Revised Rule Arbitrarily and Capriciously Eliminates Gender Identity and Sexual Orientation Protections in Unrelated Regulations 148. The Revised Rule amends a series of unrelated regulations that had identified
gender identity and sexual orientation as prohibited bases of discrimination, including regulations related to Medicaid State Plans, Programs for All-Inclusive Care for the Elderly (PACE), and ACA state health insurance exchanges and plans. The Revised Rule eliminates protections against gender identity and sexual orientation discrimination in those regulations. 85 Fed. Reg. at 37,218-22, 37,243.
149. These regulations were not issued pursuant to Section 1557 and do not interpret Section 1557. They were promulgated by CMS pursuant to the authority granted by several unrelated statutes. These unrelated regulations were not promulgated pursuant to HHS’s authority to implement regulations under Section 1557.
150. For example, the Revised Rule amends regulations regarding Medicaid State Plans and Medicaid contractors, 42 C.F.R. §§ 438.3(d)(4), 438.206 (c)(2), and 440.262, which were issued pursuant to HHS’s authority under Section 1902 of the Social Security Act to implement Section 1902(a)(19). That section directs HHS to “provide such safeguards as may be necessary to assure that eligibility for care and services under the [Medicaid] plan will be determined, and such care and services will be provided, in a manner consistent with simplicity of administration and the best interest of the recipients.” 42 U.S.C. § 1396a(a)(19); see also Medicaid and Children’s Health Insurance Program (CHIP) Programs, 81 Fed. Reg. 27,498, 27,538-39, 27,666 (May 6, 2016).
151. Prior to the Revised Rule, 42 C.F.R. § 438.3(d)(4) provided: “The MCO, PIHP, PAHP, PCCM or PCCM entity will not discriminate against individuals eligible to enroll on the basis of race, color, national origin, sex, sexual orientation, gender identity, or disability and will
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not use any policy or practice that has the effect of discriminating on the basis of race, color, or national origin, sex, sexual orientation, gender identity, or disability.” The Revised Rule amends § 438.3(d)(4) to state: “The MCO, PIHP, PAHP, PCCM or PCCM entity will not discriminate against individuals eligible to enroll on the basis of race, color, national origin, sex, or disability and will not use any policy or practice that has the effect of discriminating on the basis of race, color, or national origin, sex, or disability.” 85 Fed. Reg. at 37,243 (to be codified at 42 C.F.R. § 438.3(d)(4)).
152. PACE is a program for services for frail community-dwelling elderly persons, most of whom are Medicaid and Medicare dual eligible, to keep them in the community rather than moving to nursing homes. See 42 C.F.R. §§ 460.98, 460.112. HHS added sexual orientation to the list of protected categories of persons eligible for PACE services in 2006, explaining that “we do not believe anyone should be denied enrollment in PACE because of discrimination of any kind.” Medicare and Medicaid Programs; Programs of All-Inclusive Care for the Elderly (PACE); Program Revisions, 71 Fed. Reg. 71,244, 71,295 (Dec. 8, 2006).
153. Prior to the Revised Rule, 42 C.F.R. § 460.98(b)(3) provided: “The PACE organization may not discriminate against any participant in the delivery of required PACE services based on race, ethnicity, national origin, religion, sex, age, sexual orientation, mental or physical disability, or source of payment.” The Revised Rule amends 42 C.F.R. § 460.98(b)(3) to state: “The PACE organization may not discriminate against any participant in the delivery of required PACE services based on race, ethnicity, national origin, religion, sex, age, mental or physical disability, or source of payment.” 85 Fed. Reg. at 37,243 (to be codified at 42 C.F.R. § 460.98(b)(3)). The Revised Rule also eliminates protections against sexual orientation
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discrimination in 42 C.F.R. § 460.112(a). 85 Fed. Reg. at 37,220, 37,243 (to be codified at 42 C.F.R. § 460.112(a)).
154. Prohibitions of discrimination on the basis of sexual orientation and gender identity were added to regulations regarding group and individual market health insurance plans subject to the ACA and to ACA-created health insurance exchanges and qualified health plans. These prohibitions were added to further the ACA’s aim of expanding insurance coverage, which discriminatory marketing practices and benefit designs can thwart. See 45 C.F.R. §§ 147.104(e), 155.120(c)(1)(ii), 155.220(j)(2)(i), 156.200(e), & 156.1230(b)(2); see also PPACA; Establishment of Exchanges and Qualified Health Plans, 77 Fed. Reg. 18,310, 18,319, 18,415 (March 27, 2012); PPACA; Health Insurance Market Rules, 78 Fed. Reg. 13,406, 13,417 (Feb. 27, 2013); PPACA; Exchange and Insurance Market Standards for 2015 and Beyond, 79 Fed. Reg. 30,240, 30,261 (May 27, 2014); PPACA; HHS Notice of Benefit and Payment Parameters for 2018, 81 Fed. Reg. 94,058, 94,064, 94,152 (Dec. 22, 2016).
155. The Revised Rule eliminates the prohibitions on gender identity and sexual orientation discrimination in these regulations. See 85 Fed. Reg. at 37, 219-21, 37,247-48 (to be codified at 45 C.F.R. §§ 147.104(e), 155.120(c)(1)(ii), 155.220(j)(2)(i), 156.200(e), & 156.1230(b)(2)).
156. HHS offers no legal, policy, or cost-benefit analysis for amending these regulations, including the effects they have had during the years they have been in place or the costs and benefits of amending them.
157. HHS’s erroneous analysis of discrimination on the basis of sex under longstanding civil rights laws provides no justification for amending these regulations, which were promulgated to advance the goals of other statutory provisions.
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158. HHS’s amendment of these unrelated regulations to eliminate protections for LGBTQ people is arbitrary and capricious and without legal support. XII. The Revised Rule’s Cost-Benefit Analysis Is Arbitrary and Capricious
159. The Revised Rule fails to address adequately the direct and indirect costs that repeal of protections for LGBTQ people will have on patients, providers, insurers, and the overall health care system.
160. These costs take many forms, none of which the Revised Rule considers. First, out-of-pocket costs for necessary medical procedures will shift from insurers to patients and providers. Under the 2016 Final Rule, most insurers covered these services, but under the Revised Rule, insurers can deny coverage on the basis that these are cosmetic procedures, rather than medically necessary to alleviate gender dysphoria. Thus, many patients may forgo this necessary medical care due to the high cost of these procedures or cover the cost themselves. Providers also would lose out on the revenue from these procedures when patients cannot afford them.
161. Second, insurers’ increased transgender exclusions and transgender patients’ increased fear of discrimination by health care providers empowered by the Revised Rule will lead to transgender patients delaying or declining to seek care.15 As such, transgender patients may develop comorbid conditions such as depression, anxiety, drug abuse, and other stressrelated conditions. Treating these increased comorbid conditions will increase costs to patients, insurers, providers, and the health system overall.
15 See Lambda Legal, When Health Care Isn’t Caring: Lambda Legal’s Survey on Discrimination Against LGBT People and People Living with HIV at 12 (2010), https://perma.cc/9SEG-JD2K; see also S.E. James et al., Nat’l Ctr. for Transgender Equality, The Report of the 2015 U.S. Transgender Survey at 98 (2016), https://perma.cc/9S9L-VJ9C.
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162. Third, patients’ delays or failures to obtain treatment will increase the direct cost of treating physical medical conditions and is a patient safety issue that can lead to poor patient outcomes. LGBTQ patients who fear discrimination may delay, or never receive, preventative care such as cancer screenings. Without regular screenings, LGBTQ patients will develop more advanced cancers and other health conditions. Because the cost of treating more advanced diseases far outweighs the cost of preventative care, the Revised Rule will increase costs to patients, insurers, providers, and the overall health care system.
163. The Revised Rule does not consider these costs associated with inviting discrimination against LGBTQ patients, and in particular those who are transgender. Ignoring such substantial costs makes the Revised Rule’s cost-benefit analysis seriously flawed and arbitrary and capricious.
164. Indeed, the Revised Rule specifically admits HHS did not take the costs or harms to transgender patients into account, stating: “the Department also lacks the data necessary to estimate the number of individuals who currently benefit from covered entities’ policies governing discrimination on the basis of gender identity who would no longer receive those benefits after publication of this rule.” 85 Fed. Reg. at 37,225.
165. The costs of prohibiting sex-based discrimination against transgender people in health insurance coverage is minimal compared to the costs associated with inviting such discrimination. The 2016 Final Rule acknowledged this fact, stating that prohibiting discrimination against transgender consumers in health insurance “will have de minimis impact on the overall cost of care and on health insurance premiums.” 81 Fed. Reg. at 31,456-57. Moreover, studies have found that providing coverage of transition-related care is extremely cost-effective and reduces costs in the long term. For example, a 2013 survey of employers
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found that providing transition-related health care benefits has “zero or very low costs” and
utilization rates of approximately 1 per 10,000 to 20,000 employees.16 Another study found that
the cost of providing coverage for treatment of gender dysphoria was about $0.016 per member
per month. It also concluded that this small cost could reduce other costly health risks like
depression and drug abuse.17 Numerous other studies confirm these conclusions.18
166. The Revised Rule also fails to include in its cost-benefit analysis the costs
associated with (1) eliminating gender identity nondiscrimination protections in the CMS
regulations promulgated under different statutes, and (2) adopting the broad religious exemptions
from Title IX and unrelated statutes. The costs of these changes include those associated with
the increased discrimination that will result from the Revised Rule. Failing to consider these
costs also makes the Revised Rule arbitrary and capricious.
16 Jody L. Herman, Cost and Benefits of Providing Transition-Related Health Care Coverage in Employee Health Benefits Plans, The Williams Institute of the UCLA School of Law (Sept. 2013), https://perma.cc/D8J5-FACP. 17 William V. Padula et al., Societal Implications of Health Insurance Coverage for Medically Necessary Services in the U.S. Transgender Population: A Cost-Effectiveness Analysis, 31 J. GEN. INTERN. MED. 394, 398 (Oct. 2015), https://perma.cc/74EW-LZPY. 18 See Declaration of Raymond Edwin Mabus, Jr., former Secretary of the Navy, in Support of Plaintiff’s Motion for Preliminary Injunction ¶ 41, Doe v. Trump, No. 1:17-cv-1597-CKK (Aug. 31, 2017), ECF No. 13-9, https://perma.cc/8ZU8-8NGE (concluding costs associated with providing health care to transgender service members was considered by a former Secretary of the Navy to be “budget dust, hardly even a rounding error”); Padula, et al., Societal Implications of Health Insurance Coverage for Medically Necessary Services in the U.S. Transgender Population: A Cost-Effectiveness Analysis at 398, https://perma.cc/74EW-LZPY (calculating the costs would be fewer than two pennies per month for every person with health insurance coverage in the United States); Cal. Dep’t of Ins., Economic Impact Assessment: Gender Nondiscrimination in Health Insurance (Reg. File No. REG-2011-00023) (Apr. 13, 2012), https://perma.cc/QJ34-RVNQ (finding that costs of providing health care did not increase materially when employers adopted policies that prohibited discrimination against transgender individuals).
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XIII. The Revised Rule Betrays Discriminatory Animus Against LGBTQ People 167. HHS’s discriminatory animus in promulgating the Revised Rule is evident, as the
promulgation of the Revised Rule is just the latest step in its multi-step erasure of LGBTQ people from health care-related nondiscrimination protections.
168. Defendant Severino has a history of anti-LGBTQ sentiments, advocacy, and comments. For example, in 2016, before he became Director of OCR, defendant Severino decried the 2016 Final Rule because it ran counter to some people’s “moral, and religious beliefs about biology” and because, in his opinion, the 2016 Final Rule “create[d] special privileges, new protected classes, or new rights to particular procedures.”19
169. In 2016, defendant Severino also denounced the Department of Justice’s enforcement of Title IX’s sex discrimination protections as they applied to transgender people as “using government power to coerce everyone, including children, into pledging allegiance to a radical new gender ideology.”20
170. That same year, defendant Severino also stated that he believes transgender military personnel serving openly “dishonors” the service of other service members.21 In addition, he referred to a transgender male student involved in a Title IX lawsuit as a “teen biological girl.”22
19 Ryan Anderson & Roger Severino, Proposed Obamacare Gender Identity Mandate Threatens Freedom of Conscience and the Independence of Physicians, The Heritage Foundation (Jan. 8, 2016), https://perma.cc/5XKG-S79Z. 20 Roger Severino, DOJ’s Lawsuit Against North Carolina Is Abuse of Power, The Daily Signal (May 9, 2016), https://perma.cc/3FFM-KFMB. 21 Roger Severino, Pentagon’s Radical New Transgender Policy Defies Common Sense, CNSNews (July 1, 2016), https://perma.cc/VK37-5FP7. 22 Roger Severino & Jim DeMint, Court Should Reject Obama’s Radical Social Experiment, The Heritage Foundation (Dec. 14, 2016), https://perma.cc/N6K8-HQY5.
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171. In 2018, it was reported that HHS’s OCR was considering defining sex as “a person’s status as male or female based on immutable biological traits identifiable by and before birth,” a definition that is contrary to the legal, medical, and scientific understanding of sex.23
172. And in 2019, HHS issued a Notification of Nonenforcement of Health and Human Services Grants Regulation, in which it stated that it would no longer enforce regulations that prohibit discrimination based on sex, sexual orientation, or gender identity in grant programs that HHS funds. 84 Fed. Reg. 63,809 (Nov. 19, 2019).
173. With defendant Severino now Director of OCR, defendants seek to eviscerate the nondiscrimination protections Severino denounced.
174. For example, HHS asserts that it considered adding gender identity and sexual orientation discrimination to a definition of “sex” or discrimination “on the basis of sex” under Title IX, but concluded doing so was “inappropriate to do so in light of the ordinary public meaning of discrimination on the basis of sex under Title IX” and because “[a]s a policy matter,” state and local entities “are better equipped to address with sensitivity issues of gender dysphoria, sexual orientation, and any competing privacy interests, especially when young children or intimate settings are involved.” 85 Fed. Reg. at 37,222. Not only has the Supreme Court rejected HHS’s position on the definition of “sex” under Title VII, but the notion that health care protections for LGBTQ people are at odds with “young children” is as offensive as it is telling.
175. As another example, although HHS declares that its position on the meaning of sex discrimination “will not bar covered entities from choosing to grant protections on the basis
23 Erica L. Green, Katie Benner & Robert Pear, ‘Transgender’ Could Be Defined Out of Existence Under Trump Administration, N.Y. Times (Oct. 21, 2018), https://perma.cc/YQR6YN2F.
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of sexual orientation and gender identity that do not conflict with any other Federal law,” 85 Fed. Reg. at 37,222, HHS also states that a covered entity’s refusal to make distinctions on the basis of sex “could in some cases violate personal privacy interests and so create a hostile environment under Title IX.” 85 Fed. Reg. at 37,184. This assertion and the cases cited have nothing to do with Section 1557 and what facilities should be available to a patient in a health care setting.
176. HHS also fails to acknowledge that no cognizable legal claim exists based on having to share a restroom or other single-sex facility with a transgender person. HHS’s suggestion to the contrary, see 85 Fed. Reg. at 37,190-91, is inconsistent with the rule of law and not a “reasonable” analysis. It serves only to heighten alarm among LGBTQ people and embolden those who attack them with frivolous assertions.
177. The Revised Rule reflects HHS’s animosity toward LGBTQ people. XIV. The Revised Rule Creates Immediate and Irreparable Harms
178. The Revised Rule cannot change the law and the courts will determine the meaning of Section 1557. However, HHS’s rules have a substantial effect on health care providers and institutions, as well as on the public. The Revised Rule will result in increased discrimination against LGBTQ people, including those with LEP, by health care providers and health insurers. This increased discrimination will directly and irreparably injure plaintiffs, their members, their patients, and the individuals whom they serve.
A. The Revised Rule Will Increase LGBTQ Discrimination by Health Care Providers and Staff and Cause Irreparable Harm to Plaintiffs and the Patients and Individuals They Serve
179. Discrimination delays or denies necessary health care. It also discourages LGBTQ people from seeking care and from fully disclosing personal information that health care providers need for proper diagnosis and treatment.
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180. The Revised Rule sends a message to the health care industry and the LGBTQ community that federal law permits discrimination against LGBTQ patients.
181. Indeed, in its Notice of Proposed Rulemaking, HHS acknowledged the 2016 Final Rule “likely induced many covered entities to conform their policies and operations to reflect gender identity as protected classes [sic] under Title IX.” 84 Fed. Reg. at 27,876. And in the Revised Rule, HHS acknowledges that some covered entities may revert to the policies and practices they had in place before the 2016 Final Rule. 85 Fed. Reg. at 37,225. OCR also estimates that 60% of the increase in its anticipated long-term caseload of claims of discrimination are attributable to discrimination claims based on the 2016 Rule’s definition of sex discrimination with respect to gender identity and sex stereotyping, though OCR has not enforced such claims. 85 Fed. Reg. at 37,235.
182. HHS tries to minimize the harm the Revised Rule will create, repeatedly claiming that because a federal district court enjoined enforcement of claims based on the definition of sex discrimination in the 2016 Final Rule in December 2016 and later vacated those provisions, any harm would not be the result of the Revised Rule, which merely is maintaining the status quo. See, e.g., 85 Fed. Reg. at 37,181-82, 37,192, 37,199, & 37,238.
183. HHS’s position is disingenuous at best. HHS has issued a Revised Rule attempting to legislate that claims of discrimination based on LGBTQ status are not “cognizable” under Section 1557. 85 Fed. Reg. at 37,225.
184. Without complete protection from discrimination based on their sex, including discrimination based on their sexual orientation, gender identity, transgender status, or failure to conform to sex stereotypes, LGBTQ people will be discouraged from seeking the health care they need.
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185. The Revised Rule also will discourage LGBTQ people from fully disclosing personal information related to their sexuality and gender that health care providers need for proper diagnosis.
186. The Revised Rule will harm plaintiffs, their patients, and the LGBTQ people whom they serve in multiple ways.
1. Harm to Patients and Individuals Whom Plaintiffs Serve 187. LGBTQ individuals and especially transgender and gender-nonconforming people already face particularly acute barriers to care and health disparities that will be compounded by the Revised Rule. A majority of LGBTQ patients fear going to health care providers because of past experiences of anti-LGBTQ bias in health care settings. Many LGBTQ patients report negative experiences, including hostility, discrimination, and denials of care, when they disclose to health care providers their sexual orientation, history of sexual conduct, gender identity, transgender status, or history of gender-affirming medical treatment, and related medical histories. 188. For example, multiple LGBTQ patients at Whitman-Walker have previously been refused medical care, including routine care unrelated to gender dysphoria, by providers outside of Whitman-Walker simply because they are LGBTQ. In one instance, a radiological technician refused to perform an ultrasound for testicular cancer on a transgender patient. In another, a health care worker at a dialysis clinic confronted a Whitman-Walker patient with end-stage renal disease and objected to being involved in the patient’s care because of hostility to his sexual orientation. In another, after a Whitman-Walker patient—a transgender teenager—was hospitalized in a local hospital following a suicide attempt, the staff would only address or refer to the young person with pronouns inconsistent with their gender identity, exacerbating the teenager’s acutely fragile state of mind. Local hospitals and surgeons have refused to perform
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transition-related surgeries on Whitman-Walker transgender patients, even when they routinely perform the very same procedures on non-transgender patients, including in situations when the patient’s insurance would have covered the procedure or when the patient was able to pay for the procedure. Many local primary-care physicians unaffiliated with Whitman-Walker have refused to prescribe hormone therapy for transgender patients. And multiple Whitman-Walker patients have been denied prescriptions by pharmacists. Behavioral-health providers at Whitman-Walker report that the vast majority of transgender patients—as many as four out of five—report instances of mistreatment or discrimination by health care providers, hospitals, clinics, doctors’ offices, or other facilities outside of Whitman-Walker.
189. Patients of the LA LGBT Center report similar experiences of discrimination by other providers. One transgender patient, who developed profuse bleeding after surgery, was denied treatment at an emergency room and arrived at the LA LGBT Center in distress three days later, having lost a significant amount of blood. Another patient required extensive surgery to repair damage caused by a prior silicone breast-augmentation procedure. But she was turned down by an academic plastic-surgery center in Los Angeles because the surgeon said her health problems were caused by her own poor decision-making and she therefore would not be considered for treatment. By the time she was able to identify a surgeon who was willing to treat her, with the assistance of a physician at the LA LGBT Center, years had passed and her condition had become life-threatening. For patients at the LA LGBT Center, the ability to receive gender-affirming medical care can mean the difference between life and death.
190. In many geographic regions, a majority of LGBTQ people lack a provider whom they consider to be their personal doctor. As a result, when they seek health care services, they will encounter a health care provider with whom they do not have a relationship. This makes
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them especially vulnerable to discriminatory treatment from providers who are not LGBTQaffirming. For some medical specialties, there are only a handful of health care providers in the region who have the expertise necessary to treat a patient for a particular condition, so a denial of care from even one provider could make it practically impossible for an LGBTQ patient to receive any care at all.
191. In a recent study, nearly one in five LGBTQ people, including 31% of transgender people, said that if they were turned away from a hospital, it would be very difficult or impossible to get the health care they need elsewhere.24 The rate was substantially higher for LGBTQ people living in non-metropolitan areas, with 41% reporting that it would be very difficult or impossible to find an alternative provider. Even when they are able to get access to care, many LGBTQ individuals report that health care professionals have used harsh language toward them, refused to touch them, used excessive precaution, or blamed the individuals for their health status.25
192. Consequently, LGBTQ patients are disproportionately likely to delay preventative screenings and necessary medical treatment and therefore to end up with more acute health problems and outcomes, raising concerns about patient safety. Research has identified pervasive health disparities for LGBTQ people with respect to cancer, HIV, obesity, mental health, tobacco use, and more. In other words, LGBTQ people, who are disproportionately likely to need a wide range of routine medical care, already have reason to fear, and often do fear, negative consequences of “coming out” to health care providers about their sexual orientation, history of
24 See Mirza & Rooney, Discrimination Prevents LGBT People From Accessing Health Care, https://perma.cc/ZG7E-7WK8. 25Id.
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sexual conduct, gender identity, transgender status, history of gender-affirming medical treatment, and related medical histories.
193. The Revised Rule will exacerbate the acute health disparities LGBTQ people already face. The Revised Rule sends the message that discrimination on the basis of gender identity and sex stereotyping is permissible under federal law, which will increase the number of LGBTQ people who will be denied care.
194. The Revised Rule also encourages LGBTQ people to remain closeted to the extent possible when seeking medical care. But remaining closeted to a health care provider may result in significant adverse health consequences. For instance, a patient who conceals or fails to disclose a same-sex sexual history may not be screened for HIV or other relevant infections or cancers, or may not be prescribed preventative medications such as Pre-Exposure Prophylaxis or PrEP, which is extremely effective at preventing HIV transmission. Patients who fail fully to disclose their gender identity and sex assigned at birth may not undergo medically indicated tests or screenings (such as tests for cervical or breast cancer for some transgender men, or testicular or prostate cancer for some transgender women). The barriers to care are particularly high for transgender people. Nearly one-quarter of transgender people report delaying or avoiding medical care when sick or injured, at least partially because of fear of discrimination by and disrespect from health care providers.26
195. Patients remaining closeted to health care providers also results in increased costs to the health care system. For example, when a patient is closeted, medical providers may not order medically necessary tests or screenings, which has downstream effects such as
26 See Mirza & Rooney, Discrimination Prevents LGBT People From Accessing Health Care, https://perma.cc/ZG7E-7WK8.
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exacerbating a patient’s distress and increasing costs to providers and the health care system as a whole for delayed treatment.
196. The Revised Rule will result in increased discrimination against LGBTQ people in the provision of health care and cause harm to the health of LGBTQ people and to public health generally.
2. Harm to Private Health Care Provider Plaintiffs, LGBTQ-Services Plaintiffs, and Health Professional Association Plaintiffs
197. The Revised Rule, which fosters discrimination against LGBTQ people in the provision of health care, frustrates plaintiffs’ core missions of providing and advocating for affirming, high-quality care to all LGBTQ people and protecting against discrimination on the basis of LGBTQ status in the delivery of health care and services to patients.
198. In addition, because more LGBTQ patients will delay seeking health care, they will come to Whitman-Walker and the LA LGBT Center, the private health care provider plaintiffs who serve many LGBTQ patients, and members of the health professional association plaintiffs – GLMA and AGLP – with more acute conditions, diseases that are more advanced at diagnosis, less responsive to treatment, or no longer treatable. This delay will strain the resources of providers and increase costs for providers and patients and the health care system in general.
199. The discriminatory experiences LGBTQ patients have with other health care providers erode patients’ trust in health care providers overall and thus also challenges the ability of plaintiffs to treat their patients effectively and provide appropriate services and referrals. To provide proper medical care and services to the LGBTQ community, plaintiffs rely on frank and complete communication with their patients and the individuals who seek their services. Plaintiffs need patients and individuals seeking services to fully disclose all aspects of their
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health history, sexual history, and gender identity to provide appropriate care for the patients’ health. Without full disclosure, plaintiffs are not able to treat adequately their patients. For instance, plaintiffs need to know patients’ sexual history to know whether to test them for HIV or other infections or cancers. And plaintiffs need to be aware of patients’ gender identity and sex assigned at birth to order proper screenings and tests – like cervical or breast cancer for some transgender men, or testicular or prostate cancer for some transgender women. The Revised Rule endangers the provider-patient relationship and will harm plaintiffs and their patients by discouraging full disclosure. This also means that medical and health care providers bear increased risk of malpractice when patients do not feel comfortable to fully disclose all aspects of their health history, sexual history, and gender identity.
200. The Revised Rule’s effect of increasing discrimination by other providers will lead to increased demand for providers, entities, and individuals who serve the LGBTQ community, like Whitman-Walker, LA LGBT Center, the TransLatin@ Coalition (and its affiliated organizations like FLAS and Arianna’s Center), Bradbury-Sullivan Center, and the members of GLMA and AGLP. This increased demand will place a strain on these plaintiffs’ resources, leaving them unable to fulfill their organizational missions, spend sufficient time on each patient or individual seeking services, and provide care and services to all individuals. It also will harm LGBTQ people through increased wait times and delays of care that may worsen conditions.
201. In addition, Whitman-Walker, LA LGBT Center, the TransLatin@ Coalition (and some of its affiliated organizations like FLAS and Arianna’s Center), and Bradbury-Sullivan Center, as well as the members of GLMA and AGLP and the individual provider plaintiffs, all refer patients to other health care providers. The Revised Rule will harm the ability of these
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plaintiffs to refer LGBTQ patients to other providers because they will not know whether these providers will discriminate against their patients and/or refuse to treat their patients under the Revised Rule’s personal religious or moral belief exemptions. Thus, these plaintiffs will be required to redirect their staff and resources from providing their own services to assisting patrons in determining who among the health care providers in the region will serve LGBTQ patients in a nondiscriminatory manner.
202. The Revised Rule also will burden the private health care provider and LGBTQservices plaintiffs by precluding them from carrying out their organizational missions of providing affirming, non-discriminatory care to all LGBTQ patients based on the religious views of a single employee. The sweeping religious exemptions in the Revised Rule encourage individual employees to believe their discriminatory beliefs can prevail over their duties to patients – and to their fellow employees – posing barriers to patient care and creating burdens for the organizations. The private health care provider and LGBTQ-services plaintiffs may be forced to institute costly workarounds and duplicative staff to accommodate the religious views of a single employee, which also may result in unfairly burdening non-objecting employees. These increased costs also may result in a reduction of services and closure of programs, thus frustrating plaintiffs’ institutional missions and core functions of providing comprehensive health care and other services to LGBTQ people.
3. Additional Harm to GLMA, AGLP, and Their Members 203. The Revised Rule also will create additional harms to the health professional association plaintiffs GLMA and AGLP, their members, the LGBTQ patients whose interests they represent, and the patients whom their members treat. 204. GLMA works with professional accreditation bodies, such as the Joint Commission, and health-professional associations, on standards, guidelines, and policies that
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address LGBTQ health and protect individual patient health and public health in general. The Revised Rule prevents GLMA from achieving its goals with professional accreditation bodies by preventing such bodies from holding health care providers accountable for discrimination against LGBTQ people.
205. For a health care organization to participate in and receive federal payment from Medicare or Medicaid programs, the organization must obtain a certification of compliance with health and safety requirements. That certification is achieved based on a survey conducted either by a state agency on behalf of the federal government, or by a federally recognized national accrediting organization, like the Joint Commission. Accreditation surveys include requirements that health care organizations not discriminate on the basis of sex, sexual orientation, or gender identity in providing services or in employment. The Revised Rule presents a direct conflict with nondiscrimination standards the Joint Commission has adopted and all the major healthprofessional associations stating that health care providers should not discriminate in providing care for patients and clients because of sexual orientation or gender identity.
206. The Revised Rule invites health care organizations who discriminate against LGBTQ people to become accredited. The Revised Rule conflicts with GLMA’s mission of achieving and enforcing accreditation standards relating to nondiscrimination.
207. Members of GLMA and AGLP also will be harmed by the Revised Rule because some members are employed by health care organizations that may rely on the religious and moral exemptions in the Revised Rule to deny care or discriminate against LGBTQ patients. The Revised Rule encourages religiously-affiliated health care employers to discriminate against employees who are GLMA or AGLP members for adhering to and enforcing their medical and
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ethical obligations to treat all patients in a nondiscriminatory manner, including providing all medically-necessary care that is in LGBTQ patients’ best interests.
208. In addition, the Revised Rule invites harassment and discriminatory treatment of GLMA and AGLP members in the workforce by fellow employees. The Revised Rule sends a message that discrimination against LGBTQ health care providers and their LGBTQ patients is permissible. GLMA and AGLP members and their LGBTQ patients are stigmatized and demeaned by this message that LGBTQ people are not deserving of legal protections in the health care context. The Revised Rule thus frustrates GLMA’s and AGLP’s missions of achieving and enforcing safe workspaces for LGBTQ health professionals and nondiscriminatory health care services for their LGBTQ patients.
4. Additional Harm to the TransLatin@ Coalition, Its Members, and the Individuals it Serves
209. The Revised Rule also will harm the TransLatin@ Coalition, its members, its affiliated organizations, and the individuals whom the Coalition serves in that the harms the Revised Rule will exact on LGBTQ people, particularly those who are transgender, will be exacerbated for those with LEP. The Revised Rule’s elimination of notice and tagline requirements will make it more difficult for LGBTQ people with LEP to be aware of their rights, which language services and aids are available, how to access such services, and how to handle discrimination and complaints. The health care system was already difficult to navigate for LEP individuals, and the Revised Rule serves to exacerbate those difficulties and undermines access to health care, health insurance, and legal redress. The Revised Rule will harm the TransLatin@ Coalition’s mission and members by making it more difficult to access health care and by decreasing protections from discrimination.
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210. The Revised Rule’s elimination of the unitary standard also harms the TransLatin@ Coalition, its members, and individuals whom it serves by making it more difficult to bring claims of intersectional discrimination. Rather than being able to assert claims under a unitary standard, intersectional discrimination claims will be subject to different standards, enforcement mechanisms, and remedies based on which identities are at issue.
B. The Revised Rule Will Result in Increased Discrimination by Health Plans, Particularly Against Persons Seeking Gender-Affirming Care
211. Many private and public plans resist coverage of medically necessary procedures, whether through blanket exclusions of “sex change” or “sex transition” procedures, or through denials of coverage of specific procedures. Many plans that do not contain blanket exclusions still exclude many essential types of surgeries related to gender transition, such as facial or chest surgery.
212. Many insurers also deny coverage of other specific treatments needed to complete an individual’s transition on the grounds that the procedure is “cosmetic” – either by relying on general plan language excluding cosmetic procedures or concluding that a procedure is not medically necessary. Examples of procedures that are categorically excluded as “cosmetic” in many plans and by many utilization reviewers include:
a. Surgeries of the head and face, such as hair transplant, scalp advancement, brow reduction, lip reduction or augmentation, rhinoplasty, cheek and chin contouring, jawline modification, blepheroplasty, and other facial feminization techniques for transgender women;
b. Laser hair removal and electrolysis, on the face and elsewhere on the body;
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c. Surgeries involving the neck, such as cartilage reduction (modification of the Adam’s Apple) and vocal feminization surgery;
d. Breast augmentation and reduction; e. Other body contouring procedures, such as waist reduction, hip/buttocks
implants, fat transfer, pectoral implants; and f. Lessons/training to modify the vocal range. 213. Relying on its definition of “on the basis of sex” to include gender identity and to forbid discrimination against transgender individuals, the 2016 Final Rule helped persuade Medicaid administrators, insurance company personnel, and employee health plan sponsors to eliminate outdated exclusions and to agree to cover procedures when supported by evidence of medical necessity. Following its promulgation, the 2016 Final Rule led to a decrease in discriminatory policies and practices.27 A recent study of 37 states in the federal marketplace showed that 97% of plans analyzed did not contain blanket exclusions of transition-related care in 2019.28 214. By eliminating the 2016 Final Rule’s definition of “on the basis of sex” and the explicit prohibitions on “categorical coverage exclusion[s] or limitation[s] for all health services related to gender transition” and denials, limitations, or restrictions “for specific health services related to gender transition if such denial, limitation, or restriction results in discrimination against a transgender individual,” 81 Fed. Reg. at 31,472 (formerly codified at 45 C.F.R. § 92.207(b)(4)-(5)), the Revised Rule invites reversal of much of this progress, leading to a
27 Gruberg & Bewkes, The ACA’s LGBTQ Nondiscrimination Regulations Prove Crucial, https://perma.cc/CTP2-UMEJ. 28 Out2Enroll, Summary of Findings: 2020 Marketplace Plan Compliance with Section 1557, https://perma.cc/WU25-C9BN. This is consistent with summaries from 2017, 2018, and 2019.
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reduction in coverage and access to medically necessary health care for transgender and gender nonconforming patients.
215. In addition, the Revised Rule’s narrow interpretation of what constitutes a covered entity similarly will result in a reduction in coverage and access to medically necessary health care for transgender and gender nonconforming patients.
216. Increased discrimination by health insurance plans will harm plaintiffs and the patients and individuals whom they serve. Plaintiffs that provide health care services will face increased costs because many private and public plans will refuse to cover medically necessary procedures based on the Revised Rule’s elimination of protections against gender identity discrimination. Plaintiffs, in turn, will be forced to either cover the costs of these medically necessary procedures, or turn away LGBTQ patients who need these services but cannot afford to pay for them out of pocket. Likewise, patients may forgo necessary medical care due to the high cost of these procedures or cover the cost themselves.
C. The Revised Rule Will Result in Increased Discrimination towards Patients with Limited English Proficiency
217. Language access protections are required to prevent discrimination based on national origin. These services are important because ineffective communication between health care providers and LEP patients for the purposes of diagnosis, treatment options, proper use of medication, obtaining informed consent, and insurance coverage can result in adverse health consequences or death.
218. The Revised Rule eliminates the requirement that covered entities take reasonable steps to provide meaningful access to “each individual with LEP eligible to be served or likely to be encountered” and replaces it with a general reference to “LEP individuals.” See, e.g., 85 Fed.
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Reg. at 37,245. However, focusing on LEP individuals in general as opposed to each individual will result in some individuals not receiving the services they need for meaningful access.
219. In addition, the Revised Rule eliminates the existing requirement that nondiscrimination notices include the availability of language assistance services and taglines in the top 15 languages spoken by LEP individuals in a state. HHS “acknowledges the potential of reduced awareness of the availability of language services by LEP individuals by the changes made in this rule, or downstream effects on malpractice claims due to less awareness,” 85 Fed. Reg. at 37,235, yet HHS dismissed these negative effects claiming enforcement of Section 1557 will diminish them.
220. The Revised Rule will harm LEP patients, including members of the TransLatin@ Coalition and those the Coalition and its affiliated organizations (like FLAS and Arianna’s Center) serve, as well as the LEP patients private health care provider plaintiffs serve, by diminishing or eliminating meaningful access to health care because they will not be aware of their rights or the programs or services available to them.
221. The weakening of protections for LEP individuals will result not only in poorer health outcomes for LEP individuals, but also in increased costs and burdens for plaintiffs. As a result of the Revised Rule, private health care and individual provider plaintiffs will face increased burdens due to fewer clients being aware of their language access rights and the likelihood that more people will turn to them for help in their language, rather than other covered health care providers.
222. For example, the weakening of protections for LEP individuals will harm LEP patients of private health care providers who get care elsewhere and who private health care providers need to refer outside their organizations for specialty care, as they will no longer
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benefit from the notices, taglines, and additional language access provisions that are critical to ensure meaningful access to care.
223. The weakening of protections also will burden private health care and individual provider plaintiffs, as well as members of health professional association plaintiffs, because patients will come to them sicker due to inadequate care elsewhere, and more people may come to them because their LEP services will remain robust.
224. In addition, the weakening of protections for LEP individuals will harm private health care providers and individual provider plaintiffs, as well as members of health professional association plaintiffs, as it will place them at an increased risk for malpractice claims linked to inadequate language access.
FIRST CLAIM FOR RELIEF Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(A)
Arbitrary and Capricious 225. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 226. Defendants are subject to the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. 227. The APA provides that courts must “hold unlawful and set aside agency action” that is “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A). 228. The Revised Rule is arbitrary and capricious because defendants’ justifications for repealing critical anti-discrimination protections run counter to the evidence before the agency and disregard material facts and evidence, defendants fail to supply a reasoned explanation for their policy change from the 2016 Final Rule to the Revised Rule, defendants have failed to consider important aspects of the problem, including the Revised Rule’s interference with
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current law, and defendants failed to account properly for the costs and benefits of the Revised Rule.
229. The Revised Rule relies primarily on a single ruling and the federal government’s litigation position in the Bostock case and related litigation to justify HHS’s rejection of longstanding authority that has defined discrimination on the basis of sex in a variety of federal civil rights laws to include discrimination against individuals who are LGBTQ. The Supreme Court now has rejected HHS’s position.
230. The Revised Rule also eliminates, contrary to statutory authority, the unitary legal standard for enforcement of violations of Section 1557, replacing it with a fractured approach that will complicate and make it more difficult to bring discrimination claims under Section 1557, particularly claims of intersectional discrimination.
231. The Revised Rule’s elimination of the explicit recognition of private rights of action and the availability of compensatory damages under Section 1557 also will confuse the public and mislead many individuals into not asserting their legal rights.
232. In addition, contrary to the statutory language of Section 1557, the Revised Rule imports broad and sweeping exemptions for discrimination based on personal religious or moral belief from both the named statutes in Section 1557 and other statutes, like the Religious Freedom Restoration Act (42 U.S.C. § 2000bb et seq.), which Section 1557 does not reference. These exemptions invite individual health care providers, health care entities (hospitals, clinics etc.), and insurers across the country to opt out of treating patients, including many transgender patients, if they believe doing so would compromise their faith. Defendants’ attempt to create new religious exemptions in Section 1557 is contrary to law and endangers patients’ health in the name of advancing the religious beliefs of those who are entrusted with caring for them – a result
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sharply at odds with HHS’s stated mission, which is to “enhance and protect the health and wellbeing of all Americans” and to “provid[e] for effective health and human services.” It also adversely affects health care providers that serve and treat the LGBTQ community because (1) individual health care employees may decline to serve patients based on religious objections, and (2) their ability to refer patients to other providers will be impaired, as the Revised Rule invites those other providers to discriminate against their LGBTQ patients.
233. The Revised Rule also arbitrarily limits the scope of Section 1557, cutting back on the entities subject to the statute, contrary to the plain language of Section 1557.
234. Defendants also have failed to provide a sufficient explanation for the decision to eliminate the references to sexual orientation and gender identity discrimination in unrelated regulations promulgated under different statutes. Neither the evidence before the agency nor the weight of the legal authority supports the elimination of these protections.
235. Defendants also have failed to provide a sufficient explanation for the decision to eliminate protections against discrimination on the basis of association. Neither the evidence before the agency nor the weight of the legal authority supports the elimination of these protections.
236. The Revised Rule also is arbitrary and capricious in that it eliminates the requirement of notice of nondiscrimination requirements and access to language protections without adequate justification, undermining the ACA’s charge to ensure individuals have access to health care and health insurance.
237. The Revised Rule fails to consider important regulatory costs, including significant direct or indirect health costs to plaintiffs, their patients, and public health and safety.
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238. The Revised Rule therefore is arbitrary, capricious, [or] an abuse of discretion” in violation of the APA. 5 U.S.C. § 706(2)(A).
239. Defendants’ violations cause ongoing harm to plaintiffs, their patients, the individuals they serve, and their members.
SECOND CLAIM FOR RELIEF Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(A)
Not in Accordance with Law 240. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 241. Under the APA, a court must “hold unlawful and set aside agency action” that is “not in accordance with law.” 5 U.S.C. § 706(2)(A). 242. The Revised Rule is not in accordance with law because it conflicts with the Supreme Court’s ruling in Bostock that discrimination on the basis of a person’s sexual orientation or transgender status is discrimination on the basis of sex under Title VII, and rejects the well-established understanding of “sex” under longstanding civil rights laws as including such discrimination. 243. The Revised Rule’s elimination of protections based on sexual orientation and gender identity in unrelated regulations promulgated under different statutes likewise conflicts with controlling legal authority regarding the meaning of “sex.” 244. The Revised Rule’s elimination of protections against discrimination on the basis of association contravenes existing case law and the underlying statutes and therefore is , not in accordance with law. 245. The Revised Rule conflicts with the statutory language and purpose of Section 1557 by failing to make the enforcement mechanisms provided by Title VI, Title IX, the Age
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Discrimination Act, and the Rehabilitation Act available in the case of discrimination against a person based on any characteristic protected by these statutes.
246. The Revised Rule also conflicts with the statutory language of Section 1557 by importing broad and sweeping exemptions based on personal religious or moral belief from the identified statutes in Section 1557 and other statutes, including the Religious Freedom Restoration Act (42 U.S.C. § 2000bb et seq.), which Section 1557 does not reference.
247. In addition, the Revised Rule conflicts with the statutory language of Section 1557 by limiting the entities covered under Section 1557.
248. The Revised Rule violates Section 1554 of the ACA, which explicitly prohibits the Secretary of HHS from promulgating any regulation that “creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care” or “impedes timely access to health care services.” 42 U.S.C. § 18114. The Revised Rule creates unreasonable barriers and impedes timely access to health care by reversing protections against discrimination of historically marginalized communities and eliminating access to language provisions.
249. The Revised Rule therefore is “not in accordance with law” as required by the APA. 5 U.S.C. § 706(2)(A).
250. Defendants’ violations cause ongoing harm to plaintiffs, their patients, the individuals they serve, and their members.
THIRD CLAIM FOR RELIEF Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(C)
Exceeds Statutory Authority 251. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein.
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252. Under the APA, a court must “hold unlawful and set aside agency action” that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C).
253. Federal agencies do not have the power to act unless Congress confers the power upon them. Defendants were not given the power to alter Section 1557’s statutory terms, but that is precisely what the Revised Rule attempts to do. The Revised Rule unduly limits the explicit nondiscrimination protections against sex discrimination set forth in Section 1557 by purporting to preclude claims of discrimination based on an individual’s LGBTQ status. It also places health care services for LGBTQ people, gender nonconforming people, and other consumers at risk without congressional authorization to make these changes.
254. The Revised Rule’s elimination of a unitary legal standard to address violations of Section 1557 and limitation on the entities covered under Section 1557 likewise is contrary to the language and intent of Section 1557 and exceeds HHS’s authority.
255. The Revised Rule also amends a series of unrelated regulations to conform with the Revised Rule. The Revised Rule erases not only existing protections for LGBTQ people in the 2016 Final Rule, but eliminates such protections in other regulations, which were promulgated pursuant to the authority granted by several different statutes, including Section 1321(a) and the provisions of the ACA, Social Security Act, and other statutory authority, not Section 1557.
256. The Revised Rule also eliminates notice requirements and access to language protections, undermining the ACA’s central purpose to ensure individuals have access to health care and health insurance.
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257. The Revised Rule therefore is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right” in violation of the APA. 5 U.S.C. § 706(2)(C).
258. Defendants’ violations cause ongoing harm to plaintiffs, their patients, the individuals they serve, and their members.
FOURTH CLAIM FOR RELIEF Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(B) and U.S. Constitution, Fifth Amendment, Equal Protection Component 259. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 260. Under the APA, a court must “hold unlawful and set aside agency action” that is “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). 261. The Fifth Amendment’s Due Process Clause provides that no person shall be deprived of life, liberty, or property without due process of law. 262. The Due Process Clause includes within it a prohibition against the denial of equal protection of the laws by the federal government, its agencies, or its officials or employees. 263. The purpose and effect of the Revised Rule are to discriminate against plaintiffs, their patients, the individuals they serve, and their members based on their sex, gender identity, transgender status, gender nonconformity, and exercise of their fundamental rights, including the rights to bodily integrity and autonomous medical decision-making, and the rights to live and express oneself consistent with one’s gender identity. 264. The Revised Rule also is intended to have and will have a disproportionate impact on LGBTQ people. The Revised Rule places an impermissible special burden on these individuals.
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265. LGBTQ people have suffered a long history of discrimination and continue to suffer that discrimination. They are part of discrete and insular groups and lack the power to protect their rights through the political process.
266. Transgender people have a gender identity that differs from the sex assigned to them at birth. A person’s gender identity is a core, defining trait fundamental to a person’s sense of self and personhood.
267. Requiring a person to abandon their gender identity as a condition to equal treatment violates the Equal Protection Clause.
268. Discrimination on the basis of sex, including on the basis of gender identity, transgender status, sexual orientation, and failure to conform to sex stereotypes, is presumptively unconstitutional and subject to heightened scrutiny.
269. Similarly, discrimination based on the exercise of a fundamental right is presumptively unconstitutional and is subject to strict scrutiny.
270. The Revised Rule lacks a rational or legitimate justification, let alone the important or compelling one that is constitutionally required. The Revised Rule also lacks adequate tailoring under any standard of review.
271. Defendants’ encouragement of discrimination against LGBTQ people deprives LGBTQ people of their right to equal dignity and stigmatizes them as second-class citizens.
272. The Revised Rule therefore violates the Equal Protection Clause of the Fifth Amendment of the U.S. Constitution and must be set aside under the APA and the Fifth Amendment.
273. Defendants’ violations cause ongoing harm to plaintiffs, their patients, the individuals they serve, and their members.
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FIFTH CLAIM FOR RELIEF Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(B) and U.S. Constitution, Fifth Amendment, Substantive Due Process 274. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 275. Under the APA, a court must “hold unlawful and set aside agency action” that is “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). 276. The Fifth Amendment’s Due Process Clause protects individuals’ substantive rights to be free to make certain decisions central to privacy, bodily autonomy, integrity, selfdefinition, intimacy, and personhood without unjustified governmental intrusion. Those decisions include the right to transition-related medical treatment, as well as the right to live openly and express oneself consistent with one’s gender identity. 277. By encouraging health care providers and insurers to interfere with and unduly burden patients’ access to medically necessary health care, the Revised Rule violates the rights of plaintiffs to privacy, liberty, dignity, and autonomy as guaranteed by the Fifth Amendment. 278. A person’s gender identity and ability to live and express oneself consistent with one’s gender identity without unwarranted governmental interference is a core aspect of each person’s autonomy, dignity, self-definition, and personhood. By encouraging health care providers and insurers to deny or otherwise interfere with individuals’ access to gender-affirming medical care, including surgical procedures, hormone therapy, and other medically necessary care, and by interfering with the ability of transgender and gender-nonconforming individuals to live and express themselves in accordance with their gender identities, the Revised Rule infringes on patients’ interests in privacy, liberty, dignity, and autonomy protected by the Fifth Amendment.
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279. There is no legitimate interest supporting the Revised Rule’s infringement on patients’ fundamental rights, let alone an interest that can survive the elevated scrutiny required to justify infringement of these fundamental rights.
280. The Revised Rule therefore violates the Due Process Clause of the Fifth Amendment of the U.S. Constitution and must be set aside under the APA and the Fifth Amendment.
281. Defendants’ violations cause ongoing harm to plaintiffs, their patients, the individuals they serve, and their members.
SIXTH CLAIM FOR RELIEF Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(B)
and U.S. Constitution, First Amendment, Free Speech 282. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 283. Under the APA, a court must “hold unlawful and set aside agency action” that is “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). 284. The Free Speech Clause of the First Amendment to the United States Constitution declares: “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. The Free Speech Clause prohibits the government from “chilling” a person’s right to free expression. 285. A person’s disclosure of their transgender or gender nonconforming status, speech or expression that discloses gender identity, and a person’s gendered speech and expressive conduct all receive constitutional protection under the First Amendment. 286. The Revised Rule has the purpose and effect of chilling constitutionally protected First Amendment activity. As a result of the Revised Rule, an increased number of LGBTQ
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people will remain closeted in health care settings and to doctors, nurses, and other healthcare providers and will decline to disclose their sexual orientation, transgender status, or gender identity.
287. Further, an increased number of LGBTQ people will decline to engage in gendered speech and expression, including by declining to disclose related medical histories— even when that self-censorship impedes the ability of their health care providers to provide appropriate treatment and results in negative health consequences to the patients and to public health.
288. The Revised Rule will chill a patient of ordinary firmness from making such disclosures.
289. The Revised Rule violates the Free Speech Clause of the First Amendment because it impermissibly burdens the exercise of patients’ constitutionally protected speech, expression and expressive conduct based on the content and viewpoint of patients’ speech.
290. In addition, the Revised Rule is overbroad because it will chill protected First Amendment activity.
SEVENTH CLAIM FOR RELIEF Violation of Administrative Procedure Act, 5 U.S.C. § 706(2)(B) and U.S. Constitution, First Amendment, Establishment Clause 291. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 292. Under the APA, a court must “hold unlawful and set aside agency action” that is “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). 293. The Establishment Clause of the First Amendment to the United States Constitution declares: “Congress shall make no law respecting an establishment of religion.”
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U.S. Const. amend. I. The Establishment Clause prohibits the government from favoring one religion over another, or religion over nonreligion.
294. The Establishment Clause permits the government to provide religious accommodations or exemptions from generally applicable laws only if, among other requirements, the accommodation (1) lifts a substantial, government-imposed burden on the exercise of religion, and (2) does not shift substantial costs or burdens onto a discrete class of third parties, without regard for the third parties’ interests. In other words, the government may “accommodate” religion in accordance with the Free Exercise Clause, but it may not “promote” religion.
295. The Revised Rule violates the Establishment Clause by creating expansive religious exemptions for health care providers, plans, and employees at the expense of third parties – namely, plaintiffs, other providers, and most importantly the patients and the individuals whom plaintiffs serve. It invites health care providers, including insurance companies, hospitals, doctors, and nurses, to deny LGBTQ patients necessary medical treatment based on their religious beliefs.
296. The effect of the Revised Rule will be that patients who seek care at odds with the religious beliefs of a health care provider or employee of a health care provider may be delayed in receiving care (including emergency care) or denied care altogether.
297. The Revised Rule also will burden plaintiffs by precluding them from carrying out their organizational missions based solely on the religious views of a single employee.
298. In addition, plaintiffs will be harmed because their ability to refer LGBTQ patients to other providers will be affected in that they will not know whether these providers will discriminate against their patients and/or refuse to treat their patients under the Revised
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Rule’s personal religious or moral belief exemptions. Plaintiffs thus will be required to redirect their staff and resources from providing their own services to assisting patrons in determining who among the health care providers in the region will serve LGBTQ patients in a nondiscriminatory manner.
299. The Revised Rule violates the Establishment Clause because it: (a) has the primary purpose and effect of favoring, preferring, and endorsing certain religious beliefs and certain religious denominations over others and over nonreligion; (b) has the primary purpose and effect of preferring the religious beliefs of some people and institutions over the lives, health, and other rights and interests of third parties; (c) impermissibly entangles government with religion; (d) makes plaintiffs, their patients, and other third parties bear the costs and harms of objecting employees’ religious beliefs or religious exercise; and (e) imposes on plaintiffs a requirement to accommodate employees’ religious objections without taking constitutionally required account of the actual burdens (if any) on the objectors or the effects on or harms to plaintiffs, their patients, or the greater public health.
300. Those who are denied coverage will suffer the stigma of government-sanctioned discrimination. They also will be forced to either endure significant psychological burdens or, if they can afford it, pay for treatment out-of-pocket. The Revised Rule favors religion at the expense of LGBTQ patients without regard for LGBTQ patients’ interests. The Revised Rule contains no provision for balancing or accounting for a patient’s right to care. Instead, it applies
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categorically to deny patients the right to medical treatment based on a provider’s religious or moral beliefs.
301. The Revised Rule therefore violates the Establishment Clause of the First Amendment of the U.S. Constitution and must be set aside under the APA and the Establishment Clause.
302. Defendants’ violations cause ongoing harm to plaintiffs, their patients, the individuals they serve, and their members.
EIGHTH CLAIM FOR RELIEF Equitable Relief to Preserve Remedy 303. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 304. The Revised Rule will become effective on August 18, 2020 unless it is enjoined. Plaintiffs are entitled to a full, fair, and meaningful process to adjudicate the lawfulness of the Revised Rule before being required to implement its far-reaching and harmful requirements. 305. Plaintiffs will suffer irreparable injury by implementation of the Revised Rule, which would erode hard-won trust between LGBTQ people and their health care providers, stigmatize and traumatize patients, interfere with medical procedures and operations, and result in delays and denials of care leading to physical harm and even death. Preliminary and permanent injunctive relief is needed to ensure that plaintiffs’ injuries are fully remedied. 306. Injunctive relief also is needed to prevent the immediate harm resulting from the Revised Rule. Patients need assurance that they will receive complete, accurate information and timely and responsive medical care in an environment that protects their constitutional rights and does not expose them to stigma and harm. This Court should step in to protect plaintiffs’ institutions, their patients, the individuals they serve, and their members, in addition to the
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foremost principle guiding medical providers in responding to those in need of assistance and care – first, do no harm.
307. Accordingly, to ensure that plaintiffs receive meaningful relief should they prevail in this action, the Court should preliminarily and permanently enjoin defendants from implementing the Revised Rule.
REQUEST FOR RELIEF Wherefore, plaintiffs pray that the Court grant the following relief: A. Declare that the Revised Rule is unlawful and unconstitutional through a declaratory
judgment under 28 U.S.C. § 2201(a) and 5 U.S.C. § 706(a); B. Set aside and vacate the Revised Rule; C. Preliminarily and permanently enjoin the implementation and enforcement of the
Revised Rule; D. Award reasonable attorneys’ fees, costs, and expenses; and E. Award any other further and additional relief the Court deems just and proper.
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Dated: June 22, 2020

Respectfully submitted,

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.

STEPTOE & JOHNSON LLP

By: /s/ Omar Gonzalez-Pagan

By: /s/ Johanna Dennehy

OMAR GONZALEZ-PAGAN* ogonzalez-pagan@lambdalegal.org KAREN LOEWY* kloewy@lambdalegal.org CARL S. CHARLES* ccharles@lambdalegal.org LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 120 Wall Street, 19th Floor New York, NY 10005 Phone: (212) 809-8585 Fax: (212) 809-0055
JAMIE A. GLIKSBERG* jgliksberg@lambdalegal.org LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 West Adams, 26th Floor Chicago, IL 60603 Phone: (312) 663-4413 Fax: (312) 663-4307
* Motion for admission pro hac vice pending.
** Application for admission to U.S. District Court for the District of Columbia forthcoming.

LAURA (LAURIE) J. EDELSTEIN* ledelstein@steptoe.com STEPTOE & JOHNSON LLP One Market Plaza Spear Tower, Suite 3900 San Francisco, CA 94105 Phone: (415) 365-6700 Fax: (415) 365 6699
MICHAEL VATIS (D.C. Bar No. 422141) mvatis@steptoe.com KHRISTOPH A. BECKER* kbecker@steptoe.com STEPTOE & JOHNSON LLP 1114 Avenue of the Americas New York, NY 10036 Phone: (212) 506-3900 Fax: (212) 506-3950
JOHANNA DENNEHY (D.C. Bar No. 1008090) jdennehy@steptoe.com LAURA LANE-STEELE** llanesteele@steptoe.com STEPTOE & JOHNSON LLP 1330 Connecticut Avenue NW Washington, DC 20036 Phone: (202) 429-3000 Fax: (202) 429-3902

Counsel for Plaintiffs

83

 
 Case 1:20-cv-01630-JEB Document 34-1 Filed 07/15/20 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHITMAN-WALKER CLINIC, Inc. d/b/a WHITMAN-WALKER HEALTH, et al.,
Plaintiffs,
v.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Defendants.

Case No. 20-cv-01630-JEB

BRIEF OF U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS

Elizabeth B. Wydra Brianne J. Gorod Ashwin P. Phatak CONSTITUTIONAL ACCOUNTABILITY
CENTER 1200 18th Street NW, Suite 501 Washington, D.C. 20036-2513 Tel: (202) 296-6889 brianne@theusconstitution.org

Douglas N. Letter General Counsel
Todd B. Tatelman Megan Barbero Josephine Morse OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 Tel: (202) 225-9700 douglas.letter@mail.house.gov

Counsel for Amicus U.S. House of Representatives

Case 1:20-cv-01630-JEB Document 34-1 Filed 07/15/20 Page 2 of 23

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................................................. ii
INTEREST OF AMICUS CURIAE......................................................................................... 1
INTRODUCTION .................................................................................................................. 1
ARGUMENT .......................................................................................................................... 5
THE TRUMP ADMINISTRATION’S DECISION TO WITHDRAW CERTAIN ANTIDISCRIMINATION PROTECTIONS FOR LGBTQ INDIVIDUALS VIOLATES THE TEXT OF THE AFFORDABLE CARE ACT AND UNDERMINES CONGRESS’S PLAN IN PASSING IT .......................................................................................................... 5
A. The Affordable Care Act Responded to Serious Problems in America’s Health Care System That Had Left Millions Without Access to Quality, Affordable Care ........................................................................................................ 5
B. Congress Passed the Affordable Care Act to Expand Access to Quality, Affordable Health Care, and the Act’s Reforms Have Been Remarkably Successful ................................................................................................................. 8
C. The Trump Administration’s Withdrawal of Certain Protections Against Discrimination in Health Care for LGBTQ Individuals Undermines the Affordable Care Act ................................................................................................. 12
CONCLUSION....................................................................................................................... 18

Case 1:20-cv-01630-JEB Document 34-1 Filed 07/15/20 Page 3 of 23

Cases

TABLE OF AUTHORITIES

Page(s)

Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) .............................................................................................. 4, 13, 14

Fla. ex rel. Att’y Gen. v. U.S. Dep’t of Health & Human Servs.,

648 F.3d 1235 (11th Cir. 2011) .................................................................................

7

King v. Burwell, 135 S. Ct. 2480 (2015) .............................................................................................. 8, 9, 15

King v. Burwell,

759 F.3d 358 (4th Cir. 2014) .....................................................................................

9

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) .................................................................................................. 2, 6, 7, 8

Obergefell v. Hodges,

135 S. Ct. 2584 (2015) ..............................................................................................

17

S. Bay United Pentecostal Church v. Newsom,

140 S. Ct. 1613 (2020) ..............................................................................................

3

Statutes, Legislative Materials, and Administrative Materials 20 U.S.C. § 1681(a) ....................................................................................................... 26 U.S.C. § 36B ............................................................................................................. 26 U.S.C. § 4980H ......................................................................................................... 26 U.S.C. § 4980H(a) .................................................................................................... 29 U.S.C. § 218a ............................................................................................................ 42 U.S.C. § 1396a(a)(10) ............................................................................................... 42 U.S.C. § 1396a(a)(10)(A)(i)(VIII) ............................................................................ 42 U.S.C. § 2000e-2(a)(1).............................................................................................. 42 U.S.C. § 18022(b)(1) ................................................................................................ 42 U.S.C. § 18022(b)(4)(B) ........................................................................................... 42 U.S.C. § 18022(b)(4)(C) ...........................................................................................

3, 13 9 10 10 10 6 8 13 10 15 15

ii

Case 1:20-cv-01630-JEB Document 34-1 Filed 07/15/20 Page 4 of 23

42 U.S.C. § 18031(b)(1) ................................................................................................

9

42 U.S.C. § 18041(c)(1).................................................................................................

9

42 U.S.C. § 18071..........................................................................................................

10

42 U.S.C. § 18081..........................................................................................................

9

42 U.S.C. § 18082..........................................................................................................

9

42 U.S.C. § 18091(2)(C)................................................................................................

15

42 U.S.C. § 18091(2)(D)................................................................................................ 1, 8, 15

42 U.S.C. § 18116(a) ..................................................................................................... 3, 11, 12

42 U.S.C. § 300gg(a) .....................................................................................................

11

42 U.S.C. § 300gg-1 ......................................................................................................

11

42 U.S.C. § 300gg-3 ......................................................................................................

11

42 U.S.C. § 300gg-4 ......................................................................................................

11

42 U.S.C. § 300gg-4(b)..................................................................................................

11

42 U.S.C. § 300gg-6(a) ..................................................................................................

10

42 U.S.C. § 300gg-11 ....................................................................................................

10

42 U.S.C. § 300gg-12 ....................................................................................................

10

42 U.S.C. § 300gg-13 ....................................................................................................

10

42 U.S.C. § 300gg-14 ....................................................................................................

10

Rule II.8(b), Rules of the U.S. House of Representatives, 116th Cong. (2019)

https://perma.cc/J2SG-ZNDP ....................................................................................

1

H. Rep. No. 111-299, pt. 1 (2009) .................................................................................

5, 6

H. Rep. No. 111-299, pt. 3 (2009) ................................................................................. 5, 6, 7

Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376

(May 18, 2016) ..........................................................................................................

3, 7

Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160 (June 19, 2020) ....................................................... 13, 14

iii

Case 1:20-cv-01630-JEB Document 34-1 Filed 07/15/20 Page 5 of 23

Other Authorities

Kellan Baker & Laura E. Durso, Why Repealing the Affordable Care Act Is Bad Medicine

for LGBT Communities, Ctr. for Am. Progress (Mar. 22, 2017),

https://perma.cc/5U2W-KDZB .................................................................................

7, 12

David Blumenthal & Sara Collins, Where Both the ACA and AHCA Fall Short, and What

the Health Insurance Market Really Needs, Harv. Bus. Rev. (Mar. 21, 2017),

https://perma.cc/QB6H-K3J6 ....................................................................................

6

Cong. Budget Office, CBO’s Analysis of the Major Health Care Legislation Enacted in

Mar. 2010 (Mar. 30, 2011), https://perma.cc/7RZP-5H48 ......................................

9

Gary J. Gates, How Many People Are Lesbian, Gay, Bisexual, and Transgender?,

Williams Inst. (Apr. 2011), https://perma.cc/XFR7-9GTJ........................................

15

Jaime M. Grant, et al., Injustice at Every Turn: A Report of the National Transgender

Discrimination Survey, Nat’l Ctr. for Transgender Equality & Nat’l Gay & Lesbian

Task Force (2011), https://perma.cc/9VJD-L3V7.....................................................

16

Inst. of Med. of the Nat’l Academies, The Health of Lesbian, Gay, Bisexual, and

Transgender People (2011), https://perma.cc/V8U4-HRMG ...................................

8

Jen Kates et al., Health and Access to Care and Coverage for Lesbian, Gay, Bisexual, and

Transgender Individuals in the U.S., Kaiser Fam. Found. (May 2018),

https://perma.cc/6SFN-2YYB ...................................................................................

16

Lambda Legal, When Health Care Isn’t Caring: Lambda Legal’s Survey on

Discrimination Against LGBT People and People Living with HIV (2010),

https://perma.cc/44C8-BPAF ....................................................................................

17

Shabab Ahmed Mirza & Caitlin Rooney, Discrimination Prevents LGBTQ People from

Accessing Health Care, Ctr. for Am. Progress (Jan. 18, 2018), https://perma.cc/GJ6C-

KQKH .......................................................................................................................

8

Nat’l LGBT Educ. Ctr., Understanding the Health Needs of LGBT People, (Mar. 2016),

https://perma.cc/AX83-9RWD ..................................................................................

16

Frank Newport, In U.S., Estimate of LGBT Population Rises to 4.5%, Gallup (May 22,

2018), https://perma.cc/8TC8-BNSW .......................................................................

16

State Health Insurance Marketplace Types, 2020, Kaiser Fam. Found.,

https://perma.cc/B2T2-EZ5Y (last visited July 8, 2020) ..........................................

9

Namrata Uberio et al., U.S. Dep’t of Health & Human Servs., Health Insurance Coverage and the Affordable Care Act, 2010-2016 (2016), https://perma.cc/9N44-6ERZ ...... 11, 12

iv

Case 1:20-cv-01630-JEB Document 34-1 Filed 07/15/20 Page 6 of 23
INTEREST OF AMICUS CURIAE1 Amicus curiae the United States House of Representatives2 has a strong institutional interest in the effective and non-discriminatory implementation of the Patient Protection and Affordable Care Act. In 2010, the House passed the Affordable Care Act after significant study into the problems with then-existing health insurance markets, and the House is thus particularly well suited to explain to the Court why Congress enacted this landmark legislation, how it has helped ensure that all Americans have access to quality, affordable health care and health insurance, and why the Trump Administration’s withdrawal of certain protections from discrimination in health care for LGBTQ (lesbian, gay, bisexual, transgender, and queer) individuals is inconsistent with the plan that Congress put in place when it passed the Affordable Care Act.
INTRODUCTION The Affordable Care Act is a landmark law that sought to achieve “near-universal coverage,” 42 U.S.C. § 18091(2)(D), by making quality, affordable health care available to all Americans. When Congress passed the Affordable Care Act in 2010, it was responding to serious problems affecting America’s insurance and health care systems. Many employers failed to offer coverage to their employees, and only a limited number of individuals were eligible for
1 No person or entity other than amicus and its counsel assisted in or made a monetary contribution to the preparation or submission of this brief.
2 The Bipartisan Legal Advisory Group (BLAG) of the United States House of Representatives has authorized the filing of an amicus brief in this matter. The BLAG comprises the Honorable Nancy Pelosi, Speaker of the House, the Honorable Steny H. Hoyer, Majority Leader, the Honorable James E. Clyburn, Majority Whip, the Honorable Kevin McCarthy, Republican Leader, and the Honorable Steve Scalise, Republican Whip, and “speaks for, and articulates the institutional position of, the House in all litigation matters.” Rule II.8(b), Rules of the U.S. House of Representatives, 116th Cong. (2019) https://perma.cc/J2SG-ZNDP. The Republican Leader and Republican Whip dissented.
1

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government health insurance programs like Medicaid. Moreover, those who could not obtain coverage through their employer or Medicaid were forced to try their luck in the individual marketplace. That marketplace was plagued with sky-high prices, care that was not comprehensive, and discriminatory practices that prevented millions of Americans from obtaining coverage. These problems particularly harmed the LGBTQ community, which lacks insurance or is underinsured at disproportionate rates, and also faces discrimination on the basis of sexual orientation or gender identity at the hands of health care providers who refuse to provide care.
In response to these systemic flaws, Congress passed the Affordable Care Act “to increase the number of Americans covered by health insurance and decrease the cost of health care.” Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 567 U.S. 519, 538 (2012) (opinion of Roberts, C.J.). The law thus includes a number of provisions designed to expand access to quality health care to as many Americans as possible, and to remove discriminatory barriers to care and coverage. First, it expands Medicaid to all low-income individuals. Second, it creates a system of American Health Benefit Exchanges (Exchanges) that enable individuals who do not receive health insurance through their employer or through Medicaid to easily compare and purchase health insurance in the individual marketplace, and it provides tax credits to subsidize the cost of insurance for many lower- and middle-income individuals. Third, it prevents insurers from discriminating on the basis of preexisting conditions and includes a number of other protections designed to ensure that insurers and health care providers offer comprehensive care to a wide swath of consumers.
Among other things, the Act includes a broad anti-discrimination provision, Section 1557, which states that individuals may not “be excluded from participation in, be denied the
2

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benefits of, or be subjected to discrimination under, any health program or activity” receiving federal funding on the basis of an individual’s race, color, national origin, sex, age, and disability. 42 U.S.C. § 18116(a) (incorporating existing civil rights laws). As relevant to this case, the provision prohibits health care discrimination “on the ground prohibited under . . . title IX of the Education Amendments of 1972,” id., and Title IX in turn prohibits discrimination in education against any “person . . . on the basis of sex,” 20 U.S.C. § 1681(a).
In 2016, the Department of Health and Human Services (the Department) published a final rule interpreting Section 1557’s prohibition on health care discrimination on the basis of sex to include “discrimination on the basis of . . . gender identity.” Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376, 31,467 (May 18, 2016). The rule also concluded that “Section 1557’s prohibition of discrimination on the basis of sex includes, at a minimum, sex discrimination related to an individual’s sexual orientation where the evidence establishes that the discrimination is based on gender stereotypes.” Id. at 31,390. Moreover, the rule prohibited discrimination against a person on the basis of the sex of “an individual with whom the individual or entity is known or believed to have a relationship or association.” Id. at 31,472. The Department’s 2016 interpretation of Section 1557 was consistent with the plain text of the statute and effectuated Congress’s goal of expanding access to quality, affordable health insurance and care and ensuring that Americans did not face discrimination in health care.
The Trump Administration, however, has now reversed course, issuing a new rule to implement Section 1557 that no longer protects against discrimination in health care because of an individual’s sexual orientation or gender identity. And it has done so in the midst of a global pandemic when access to health care is more critical than ever. See S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Mem.) (Roberts, C.J., concurring in denial of
3

Case 1:20-cv-01630-JEB Document 34-1 Filed 07/15/20 Page 9 of 23
application for injunctive relief) (“COVID–19 [is] a novel severe acute respiratory illness that has killed . . . more than 100,000 nationwide. At this time, there is no known cure, no effective treatment, and no vaccine.”). The Administration’s new rule violates the text of Section 1557, as well as Congress’s plan in passing the Affordable Care Act.
Significantly, the Supreme Court recently held in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), that when Congress outlawed discrimination on the basis of sex in Title VII of the Civil Rights Act of 1964, it included a prohibition on discrimination on the basis of an individual’s sexual orientation or gender identity. Id. at 1737. As the Court explained, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Id. at 1741. This result, the Court added, is “no more than the straightforward application of legal terms with plain and settled meanings.” Id. at 1743. The relevant language of Section 1557 involves nearly the same “legal terms with plain and settled meanings”—discrimination on the basis of sex—that the Supreme Court conclusively interpreted in Bostock. The Administration’s new rule, which narrowly interprets the prohibition on sex discrimination in the 2010 Affordable Care Act, cannot be reconciled with Bostock.
Moreover, the new rule conflicts with Congress’s plan in passing the Affordable Care Act, which was to expand access to quality, affordable health insurance and care and to prevent discrimination against all Americans. Indeed, Congress included several anti-discrimination provisions in the Affordable Care Act, including the prohibition on discrimination against individuals with preexisting conditions. Section 1557 is part and parcel of Congress’s intent to eliminate discrimination, and applying its protections to prevent discrimination against LGBTQ people is necessary to achieving that goal. When Congress passed the Act, LGBTQ individuals
4

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often faced insurers and providers who refused to cover or care for them, even though the LGBTQ community often has significantly greater health care needs than other communities. In short, this Administration’s withdrawal of existing anti-discrimination protections for LGBTQ individuals seriously undermines Congress’s intent in passing the Affordable Care Act to prevent discrimination and ensure that all Americans have access to the health care they need.
ARGUMENT THE TRUMP ADMINISTRATION’S DECISION TO WITHDRAW CERTAIN ANTIDISCRIMINATION PROTECTIONS FOR LGBTQ INDIVIDUALS VIOLATES THE TEXT OF THE AFFORDABLE CARE ACT AND UNDERMINES CONGRESS’S PLAN IN PASSING IT.
A. The Affordable Care Act Responded to Serious Problems in America’s Health Care System That Had Left Millions Without Access to Quality, Affordable Care. Congress passed the Affordable Care Act in response to serious problems plaguing
America’s health care system. See H. Rep. No. 111-299, pt. 3, at 55 (2009) (“The U.S. health care system is on an unsustainable course.”). In 2007, “more than 45.7 million people were uninsured . . . , representing more than one-seventh of the population.” H. Rep. No. 111-299, pt. 1, at 320 (2009). Several factors contributed to this uninsured rate. First, there was “no federal requirement that employers offer health insurance coverage to employees or their families.” H. Rep. No. 111-299, pt. 3, at 134. Accordingly, while almost all large employers offered their employees health insurance benefits, “[l]ess than half of all small employers (less than 50 employees) offer[ed] health insurance coverage to their employees.” Id. at 322.
Second, when the Affordable Care Act was passed, health care costs were skyrocketing, making it difficult for most Americans to purchase insurance in the individual marketplace. “Between 1999 and 2008, health insurance premiums more than doubled as wages largely
5

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stagnated.” Id. at 55-56 (citing testimony of Jacob Hacker).3 Further, the United States “spen[t] substantially more than other developed countries on health care, both per capita and as a share of GDP.” H. Rep. No. 111-299, pt. 1, at 320. This dramatic increase in health care costs affected employers—who “face[d] a growing challenge paying for health benefits while managing labor costs to succeed in a competitive market,” id.—and federal and state budgets— “both directly, through spending on Medicare, Medicaid, and other programs, and indirectly, through tax expenditures for health insurance and expenses,” id. at 320-21.
Third, millions of Americans who were not provided insurance benefits by their employers and could not afford or were denied coverage in the individual market were also ineligible for insurance through government programs like Medicaid. At the time, Medicaid offered federal funding to States only “to assist pregnant women, children, needy families, the blind, the elderly, and the disabled in obtaining medical care.” NFIB, 567 U.S. at 541 (citing 42 U.S.C. § 1396a(a)(10)).
Finally, the insurance and health care industries were riddled with discriminatory policies and practices. For instance, insurance companies in many States were permitted to discriminate against individuals with preexisting conditions. Because “‘20 percent of the population account[ed] for 80 percent of health spending’” in 2009, “health insurers—particularly in the individual market— . . . adopted discriminatory, but not illegal, practices to cherry-pick healthy people and to weed out those who [we]re not as healthy.” H. Rep. No. 111-299, pt. 3, at 92 (quoting testimony of Karen Pollitz).
3 See David Blumenthal & Sara Collins, Where Both the ACA and AHCA Fall Short, and What the Health Insurance Market Really Needs, Harv. Bus. Rev. (Mar. 21, 2017), https://perma.cc/QB6H-K3J6 (“premiums for . . . policies [in the individual market] were increasing more than 10% a year, on average, while the policies themselves had major deficiencies”).
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Such practices included: “denying health coverage based on pre-existing conditions or medical history, even minor ones; charging higher, and often unaffordable, rates based on one’s health; excluding pre-existing medical conditions from coverage; charging different premiums based on gender; and rescinding policies after claims [we]re made based on an assertion that an insured’s original application was incomplete.” Id. As a result of these practices, “many uninsured Americans—ranging from 9 million to 12.6 million—voluntarily sought health coverage in the individual market, but were denied coverage, charged a higher premium, or offered only limited coverage that excludes a preexisting condition.” Fla. ex rel. Att’y Gen. v. U.S. Dep’t of Health & Human Servs., 648 F.3d 1235, 1245 (11th Cir. 2011), aff’d in part, rev’d in part sub nom. NFIB, 567 U.S. 519. Congress found that “[d]iscrimination based on health, gender and other factors has severe economic consequences for those who have been unable to find affordable health coverage and for those who have coverage, but are under-insured.” H. Rep. No. 111-299, pt. 3, at 92.
LGBTQ individuals were particularly harmed by these problems with the health insurance markets and suffered discrimination in the provision of care. According to one study, “before the ACA’s coverage reforms came into effect, 1 in 3 LGBT people making less than $45,000 per year . . . were uninsured.”4 And for transgender individuals, even if they had coverage, “insurance companies routinely excluded coverage for transition-related care based on the misguided assumption that such treatments were cosmetic and experimental,” Compl. ¶ 54, resulting in transgender individuals being unable to obtain medically necessary treatment for gender dysphoria. See 81 Fed. Reg. at 31,460. Moreover, even today, “[d]espite existing
4 Kellan Baker & Laura E. Durso, Why Repealing the Affordable Care Act Is Bad Medicine for LGBT Communities, Ctr. for Am. Progress (Mar. 22, 2017), https://perma.cc/5U2W-KDZB.
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protections,” LGBTQ individuals “face disturbing rates of health care discrimination,” with one survey showing that eight percent of LGB individuals and 29 percent of transgender individuals had a doctor or other health care provider refuse to see them in the prior year because of their actual or perceived sexual orientation or gender identity.5 That discrimination can result in “outright denial of care or . . . the delivery of inadequate care,” and “LGBT individuals have reported experiencing refusal of treatment by health care staff, verbal abuse, and disrespectful behavior, as well as many other forms of failure to provide adequate care.” Inst. of Med. of the Nat’l Academies, The Health of Lesbian, Gay, Bisexual, and Transgender People 62 (2011), https://perma.cc/V8U4-HRMG (internal citations omitted).
B. Congress Passed the Affordable Care Act to Expand Access to Quality, Affordable Health Care, and the Act’s Reforms Have Been Remarkably Successful. To address these serious and systemic problems, Congress passed the Affordable Care
Act “to expand coverage” while keeping health care costs in check. King v. Burwell, 135 S. Ct. 2480, 2485 (2015); see NFIB, 567 U.S. at 538 (“The Act aims to increase the number of Americans covered by health insurance and decrease the cost of health care.”); 42 U.S.C. § 18091(2)(D) (the Act aims to achieve “near-universal coverage”). The Affordable Care Act does so in various respects.
First, it provides funding to States to expand Medicaid coverage to all individuals earning up to 133 percent of the federal poverty level. See 42 U.S.C. § 1396a(a)(10)(A)(i)(VIII). The
5 Shabab Ahmed Mirza & Caitlin Rooney, Discrimination Prevents LGBTQ People from Accessing Health Care, Ctr. for Am. Progress (Jan. 18, 2018), https://perma.cc/GJ6C-KQKH.
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Congressional Budget Office estimated that this expansion newly provided coverage to millions of Americans.6
Second, for individuals who are not eligible for Medicaid and do not receive insurance from their employer, the Act provides for the creation of Exchanges through which individuals can purchase health insurance for themselves and their families. The Act “requires the creation of an ‘Exchange’ in each State where people can shop for insurance, usually online.” King, 135 S. Ct. at 2487 (citing 42 U.S.C. § 18031(b)(1)). Generally, States were tasked with setting up these Exchanges, see 42 U.S.C. § 18031(b)(1), but if a State declined to do so, the Secretary of Health and Human Services was required to “establish and operate such Exchange within the State,” id. § 18041(c)(1).7
The Act then “s[ought] to make insurance more affordable by giving refundable tax credits to individuals with household incomes between 100 percent and 400 percent of the federal poverty line.” King, 135 S. Ct. at 2487 (citing 26 U.S.C. § 36B). “Individuals who meet the Act’s requirements may purchase insurance with the tax credits, which are provided in advance directly to the individual’s insurer.” Id. (citing 42 U.S.C. §§ 18081, 18082); see King v. Burwell, 759 F.3d 358, 364 (4th Cir. 2014) (“The Exchanges facilitate this process by advancing an individual’s eligible tax credit dollars directly to health insurance providers as a means of reducing the upfront cost of plans to consumers.”), aff’d, 135 S. Ct. 2480. The Act also requires insurers to reduce certain cost-sharing expenses—like deductibles and co-payments—for lower-
6 See Cong. Budget Office, CBO’s Analysis of the Major Health Care Legislation Enacted in Mar. 2010, at 22-23 (Mar. 30, 2011), https://perma.cc/7RZP-5H48 (prepared statement of Douglas Elmendorf, Director, Cong. Budget Office).
7 As of 2019, 13 States operate State Exchanges, 32 States rely principally on the Federal Government to run their Exchanges, and 6 States have a hybrid Exchange of some sort. State Health Insurance Marketplace Types, 2020, Kaiser Fam. Found., https://perma.cc/B2T2-EZ5Y (last visited July 8, 2020).
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income individuals, and requires the Department of Health and Human Services to reimburse insurers for these cost-sharing reductions. See 42 U.S.C. § 18071.
Third, the Act includes various market reforms designed to expand access to insurance coverage. For instance, the Act requires large employers to offer insurance to their employees or pay a penalty, 26 U.S.C. § 4980H; to automatically enroll new and current employees of large employers in an employer-sponsored plan unless an employee opts out, 29 U.S.C. § 218a; and to offer adequate health insurance plans, 26 U.S.C. § 4980H(a). The Act also includes numerous other important provisions that, for example, prohibit insurers from imposing lifetime dollar limits on the value of coverage, 42 U.S.C. § 300gg-11; prohibit insurers from rescinding coverage except in the case of fraud, id. § 300gg-12; require individual and group health plans to cover preventive services without cost sharing, id. § 300gg-13; and allow children to stay on their parents’ health insurance until age 26, id. § 300gg-14.
The Act further addresses the inadequacy of benefits in the individual and small group markets by expressly providing that insurance offered in those markets must include “essential health benefits.” Id. § 300gg-6(a) (“A health insurance issuer that offers health insurance coverage in the individual or small group market shall ensure that such coverage includes the essential health benefits package required under section 18022(a) of this title.”). While the law gave the Secretary of Health and Human Services authority to define what those “essential health benefits” would be, the law specified that “such benefits shall include at least the following general categories”: ambulatory patient services, emergency services, hospitalization, maternity and newborn care, mental health and substance abuse disorder services, prescription drugs, rehabilitative and habilitative services, laboratory services, preventive and wellness services, chronic disease management, and pediatric services, including oral and vision care. Id.
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§ 18022(b)(1). All of these reforms were designed to allow more Americans access to comprehensive insurance coverage.
Moreover, the Act includes reforms ensuring that no American is denied the ability to purchase health insurance. The Act prevents discrimination on the basis of preexisting conditions by including a guaranteed-issue provision prohibiting insurers from denying coverage to any individual because of a medical condition or their medical history, see id. §§ 300gg-1, 300gg-3, 300gg-4, and a community-rating provision prohibiting insurers from charging higher premiums because of an individual’s preexisting medical conditions, id. §§ 300gg(a), 300gg4(b).
Finally, the Act includes an important anti-discrimination provision that prohibits discrimination in the provision of health insurance coverage and health care services. Section 1557 of the Act provides that individuals may not “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity” receiving federal funding on the basis of an individual’s race, color, national origin, sex, age, or disability. 42 U.S.C. § 18116(a). That provision of the law was a critical part of Congress’s effort to ensure that every American has access to the health care they need.
Through all of these reforms, and despite the Trump Administration’s myriad efforts to subvert them, the Act has been highly successful in ameliorating the immense public health problem caused by having so many Americans without adequate health insurance. As of 2016, approximately 12.7 million people had purchased plans on the state and federal Exchanges established by the Affordable Care Act. Namrata Uberio et al., U.S. Dep’t of Health & Human Servs., Health Insurance Coverage and the Affordable Care Act, 2010-2016, at 8 (2016), https://perma.cc/9N44-6ERZ. And approximately 14.5 million more people began receiving
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comprehensive benefits through Medicaid and the Children’s Health Insurance Program. Id. Overall, there has been a net gain of more than 20 million Americans with health insurance coverage. Id. This gain spans many generational, ethnic, and racial groups, and has particularly benefited women, younger people, and Black and Hispanic individuals. Id. at 2. The Act has also led to a dramatic decrease in LGBTQ individuals without insurance coverage: one study estimated that the number of low-income LGBTQ individuals without insurance dropped from 34% to 22% from 2013 to 2017.8
C. The Trump Administration’s Withdrawal of Certain Protections Against Discrimination in Health Care for LGBTQ Individuals Undermines the Affordable Care Act. Even though it is critically important that all people be able to obtain health insurance in
the midst of this global health crisis, and even though the Affordable Care Act included a broad anti-discrimination clause that prohibits discrimination in health care on the basis of sex, the Trump Administration promulgated a rule that takes away existing protection from discrimination for LGBTQ individuals. This decision violates the text of the Affordable Care Act and undermines Congress’s plan in passing it.
1. The Administration’s new rule that fails to prohibit discrimination in health care based on individuals’ sexual orientation or gender identity directly conflicts with the text of the Affordable Care Act. When Congress passed the Act, it included a broad anti-discrimination provision that prohibits discrimination in health care based on several characteristics included in long-standing civil rights laws. In particular, Section 1557 prohibits discrimination in health care “on the ground prohibited under . . . title IX of the Education Amendments of 1972,” 42
8 Baker & Durso, supra note 4.
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U.S.C. § 18116(a), which in turn prohibits discrimination against any person “on the basis of sex,” 20 U.S.C. § 1681(a).
In its revised rule, the Administration took the position that “the ordinary public meaning of the term ‘sex’ in Title IX is unambiguous” and refers to a “biological binary meaning of sex.” Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160, 37,179-80 (June 19, 2020). Based on that erroneous understanding, the Administration concluded that Title IX, and in turn Section 1557, does not protect against discrimination based on sexual orientation or gender identity, and repealed the prior regulation affording those protections. Id. at 37,183-86.
That understanding has just now been explicitly rejected by the Supreme Court. In Bostock v. Clayton County, the Court held that Title VII’s prohibition on discrimination in employment “because of such individual’s . . . sex,” 42 U.S.C. § 2000e-2(a)(1), prohibits discrimination on the basis of an individual’s sexual orientation or gender identity. 140 S. Ct. at 1737. As the Court explained, “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex” because “[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Id. It is thus “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Id. at 1741.
This holding applies squarely to Section 1557 of the Affordable Care Act. If a health care provider refuses to provide care to a male individual “for no reason other than the fact he is attracted to men, the [health care provider] discriminates against him for traits or actions it tolerates in . . . female[s]. Put differently, the [provider] intentionally singles out [a patient to
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deny care] based in part on the [patient’s] sex, and the affected [patient’s] sex is a but-for cause of [the denial of care].” Id. at 1741. Likewise, a health care provider who refuses service to a “transgender person who was identified as a male at birth but who now identifies as a female,” but willingly cares for “an otherwise identical [patient] who was identified as female at birth . . . intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in a[] [patient] identified as female at birth.” Id. The patient’s “sex plays an unmistakable and impermissible role in the . . . decision” to deny care. Id. at 1741-42. Said another way, “to discriminate on the[] grounds [of sexual orientation or gender identity] requires [a health care provider] to intentionally treat individual [patients] differently because of their sex.” Id. at 1742.
Notably, before putting the new rule into effect, the Administration conceded that “a holding by the U.S. Supreme Court on the meaning of ‘on the basis of sex’ under Title VII will likely have ramifications for the definition of ‘on the basis of sex’ under Title IX” because “Title VII case law has often informed Title IX case law with respect to the meaning of discrimination ‘on the basis of sex.’” 85 Fed. Reg. at 37,168. Nevertheless, the Administration refused to alter its analysis in the revised version of its rule released on June 19, 2020—four days after the Bostock decision was released.9 The rule thus violates the text of Section 1557 and Title IX, as now explicated by the Supreme Court, and it must be invalidated.
2. In addition to violating the text of Section 1557, the Administration’s new rule also undermines Congress’s plan in passing the Affordable Care Act. As explained above, Congress
9 The Administration suggests in its rule that the Court’s reasoning in Bostock might not apply to Section 1557 because “the binary biological character of sex (which is ultimately grounded in genetics) takes on special importance in the health context.” 85 Fed. Reg. at 37,168. But the Bostock decision assumed that “sex” means “biological sex,” and nevertheless held that discrimination against LGBTQ people is discrimination on the basis of sex. See Bostock, 140 S. Ct. at 1739 (“we proceed on the assumption that ‘sex’ . . . referr[ed] only to biological distinctions between male and female”).
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passed the Act to “achieve[] near-universal coverage,” 42 U.S.C. § 18091(2)(D), by expanding insurance coverage and health care access to all Americans. Thus, the Act contains numerous provisions that prevent discrimination against more vulnerable populations, both in the issuance of insurance and the provision of health care. For instance, as described above, the Act protects individuals with pre-existing conditions by “bar[ring] insurers from taking a person’s health into account when deciding whether to sell health insurance or how much to charge.” King, 135 S. Ct. at 2485. That requirement was intended to “add millions of new consumers to the health insurance market, increasing the supply of, and demand for, health care services, and [to] increase the number and share of Americans who are insured.” 42 U.S.C. § 18091(2)(C). Similarly, Section 1302 of the Act prohibits individual and small-group health insurance plans from making “coverage decisions, determin[ing] reimbursement rates, establish[ing] incentive programs, or design[ing] benefits in ways that discriminate against individuals because of their age, disability, or expected length of life.” Id. § 18022(b)(4)(B). It also requires such plans to “take into account the health care needs of diverse segments of the population, including women, children, persons with disabilities, and other groups.” Id. § 18022(b)(4)(C).
Section 1557 of the Act was likewise adopted to achieve Congress’s goal of ensuring universal access to health care by preventing discrimination. Just as Congress in Title VII adopted a broad prohibition on discrimination in employment, Congress concluded that the same broad prohibition on discrimination was necessary in the often life-or-death context of healthcare. And given that there are approximately 9 million LGBTQ people in the United States,10
10 Gary J. Gates, How Many People Are Lesbian, Gay, Bisexual, and Transgender?, Williams Inst. (Apr. 2011), https://perma.cc/XFR7-9GTJ.
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and potentially far more,11 prohibiting discrimination against individuals on the basis of transgender status and sexual orientation is critical to achieving that goal.
LGBTQ people often have significant health care needs that make access to affordable care especially necessary. “Research studies on same-sex couples find that LGB individuals have higher rates of unmet medical need because of cost and are less likely to have a regular provider.”12 LGBTQ people also experience disproportionate rates of HIV infection: men who have sex with men account for more than two-thirds of HIV diagnoses nationwide, even though they only account for 2% of the general population, and around 28% of transgender women in the United States have HIV.13
Moreover, transgender individuals are “more likely to live in poverty and less likely to have health insurance than the general population,” with a 2011 survey of transgender individuals tragically showing that “nearly half (48%) of respondents postponed or went without care when they were sick because they could not afford it.”14 Indeed, when the Affordable Care Act was passed, “many health plans include[d] transgender-specific exclusions that den[ied] transgender individuals coverage of services provided to non-transgender individuals, such as surgical treatment related to gender transition, mental health services, and hormone therapy.” Id.
11 Frank Newport, In U.S., Estimate of LGBT Population Rises to 4.5% , Gallup (May 22, 2018), https://perma.cc/8TC8-BNSW.
12 Jen Kates et al., Health and Access to Care and Coverage for Lesbian, Gay, Bisexual, and Transgender Individuals in the U.S., Kaiser Fam. Found. 12 (May 2018), https://perma.cc/6SFN-2YYB.
13 Nat’l LGBT Educ. Ctr., Understanding the Health Needs of LGBT People 5 (Mar. 2016), https://perma.cc/AX83-9RWD.
14 Kates et al., supra note 12, at 14 (citing Jaime M. Grant, et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, Nat’l Ctr. for Transgender Equality & Nat’l Gay & Lesbian Task Force (2011), https://perma.cc/9VJD-L3V7).
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Finally, as described above, LGBTQ people face enormous discrimination in the provision of health care. In one large study in 2010, at the time the ACA passed, a staggering 56 percent of LGB people and 70 percent of transgender and gender non-conforming people had experienced some form of discrimination in health care, which includes “being refused needed care; health care professionals refusing to touch them or using excessive precautions; health care professionals using harsh or abusive language; being blamed for their health status; or health care professionals being physically rough or abusive.”15 And this discrimination in health care is consistent with the discrimination that LGBTQ people face in nearly all aspects of their lives. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2596 (2015) (“Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.”). In short, ensuring that LGBTQ people can access care when they need it is necessary to achieving Congress’s goal to expand access to health care to all Americans.
* * * The Administration’s new rule withdrawing certain existing anti-discrimination protections for LGBTQ people does not comport with the plain text of Section 1557, nor with Congress’s plan in passing the Affordable Care Act. The rule should be invalidated.
15 Lambda Legal, When Health Care Isn’t Caring: Lambda Legal’s Survey on Discrimination Against LGBT People and People Living with HIV 5 (2010), https://perma.cc/44C8-BPAF.
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CONCLUSION

For the foregoing reasons, the House submits this brief in support of Plaintiffs.

Respectfully submitted,

Elizabeth B. Wydra Brianne J. Gorod Ashwin P. Phatak CONSTITUTIONAL ACCOUNTABILITY
CENTER 1200 18th Street NW, Suite 501 Washington, D.C. 20036-2513 Tel: (202) 296-6889 brianne@theusconstitution.org

/s/ Douglas N. Letter Douglas N. Letter
General Counsel Todd B. Tatelman Megan Barbero Josephine Morse OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 Tel: (202) 225-9700 douglas.letter@mail.house.gov

July 15, 2020

Counsel for Amicus U.S. House of Representatives

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 Case 1:20-cv-01630-JEB Document 56 Filed 09/02/20 Page 1 of 101

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHITMAN-WALKER CLINIC, INC., et al.,
Plaintiffs, v.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Defendants.

Civil Action No. 20-1630 (JEB)

MEMORANDUM OPINION In an effort to improve access to health care for LGBTQ individuals, the Department of Health and Human Services in 2016 promulgated a Rule that offered a bevy of protections for such patients. Those included explicit prohibitions on discrimination on the basis of gender identity or sex stereotyping, limits on exemptions from providing treatment that certain religious entities could invoke, proscriptions of categorical coverage exclusions, and a number of others. Believing that many of these protections were either unnecessary or misguided, the current administration has recently issued a Rule that revises or repeals the 2016 Rule in significant respects. Concerned by this change in policy, private health-care facilities that provide services to LGBTQ people, LGBTQ-services organizations, national associations of health professionals, and individual physicians and behavioral-health providers have joined forces to bring suit challenging the new Rule under both the Administrative Procedure Act and various constitutional provisions. They now ask this Court to preliminarily enjoin the measure while this litigation proceeds.
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Case 1:20-cv-01630-JEB Document 56 Filed 09/02/20 Page 2 of 101 As the daunting length of this Opinion suggests, the multiple issues they raise and their ability to do so pose myriad thorny questions that require extensive analysis. The Court ultimately concludes that Plaintiffs have standing to level challenges to certain provisions of the 2020 Rule, but not others, and that they are likely to succeed (and will suffer irreparable harm) on two central claims: first, that the 2020 Rule arbitrarily and capriciously eliminated “sex stereotyping” from the prior Rule’s definition of “discrimination on the basis of sex”; and second, that it improperly incorporated Title IX’s exemption of certain religious organizations from the statute’s nondiscrimination mandate. The Court, consequently, will grant Plaintiffs’ Motion in part and enjoin HHS from implementing these two provisions during the pendency of this case.
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Table of Contents I. Background ............................................................................................................................. 5
A. Statutory Background .......................................................................................................... 5 B. Regulatory Background ....................................................................................................... 6
1. 2016 Rule ......................................................................................................................... 6 2. 2020 Rule ......................................................................................................................... 9 3. Bostock........................................................................................................................... 12 C. The Instant Litigation......................................................................................................... 13 II. Legal Standard....................................................................................................................... 14 III. Standing................................................................................................................................. 15 A. Organizational Standing..................................................................................................... 18 1. Legal Standard................................................................................................................ 18 2. Application to Claims..................................................................................................... 20
a. Common-Injury Claims .............................................................................................. 21 i. Injury-in-Fact .......................................................................................................... 21 ii. Causation and Redressability.................................................................................. 27 (a) Elimination of 2016 Rule’s Definition of Sex Discrimination........................ 27 (b) Incorporation of Title IX’s Religious Exemption............................................ 34 (c) Section 1554 and Establishment Clause .......................................................... 35
b. Additional Organizational-Injury Claims ................................................................... 36 i. Elimination of Prohibition on Categorical Coverage Exclusions ........................... 36 ii. Elimination of Notice Requirements ...................................................................... 38 iii. Narrowing Scope of Covered Entities .................................................................... 41 iv. Section 1557 Legal Standard .................................................................................. 43
B. Third-Party Standing.......................................................................................................... 45 IV. Analysis ................................................................................................................................. 50
A. Likelihood of Success on the Merits.................................................................................. 51 1. Elimination of 2016 Rule’s Definition of Sex Discrimination ...................................... 51 2. Incorporation of Title IX’s Religious Exemption .......................................................... 62 3. Elimination of Prohibition on Categorical Coverage Exclusions .................................. 67 4. Elimination of Notice Requirements.............................................................................. 73
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Case 1:20-cv-01630-JEB Document 56 Filed 09/02/20 Page 4 of 101 5. Section 1554 ................................................................................................................... 79 6. Constitutional Claims ..................................................................................................... 81
a. Equal Protection ......................................................................................................... 81 b. Substantive Due Process............................................................................................. 83 c. Free Speech................................................................................................................. 83 d. Establishment Clause.................................................................................................. 84 B. Irreparable Harm ................................................................................................................ 85 C. Balance of Equities and Public Interest ............................................................................. 93 V. Remedy.................................................................................................................................. 95 VI. Conclusion........................................................................................................................... 101
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I. Background The Court begins with a brief overview of the relevant statutory background, then turns
to the various regulatory actions at issue, and concludes with a history of the current litigation. A. Statutory Background Passed in 2010, the Patient Protection and Affordable Care Act (ACA) is “a
comprehensive national plan to provide universal health insurance coverage” across the nation. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 583 (2012). It adopted a series of reforms to “expand coverage in the individual health insurance market,” many of which were designed to protect consumers and make quality health care more broadly accessible. King v. Burwell, 135 S. Ct. 2480, 2485 (2015). An important component of the ACA’s effort to ensure the prompt and effective provision of health care to all individuals — and of particular relevance for the present case — is the statute’s express anti-discrimination mandate, which draws from protections embodied in four longstanding civil-rights laws. Section 1557 provides, as pertinent here:
Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section [504 of the Rehabilitation Act of 1973 (29 U.S.C. 794)], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under [Title I of the ACA] (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section [504], or such Age Discrimination Act shall apply for purposes of violations of this subsection. 42 U.S.C. § 18116(a).
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By outlawing discrimination “on the ground prohibited” by Title IX, Section 1557 bars discrimination “on the basis of sex.” See 20 U.S.C. § 1681(a) (Title IX). It also forbids discrimination based on race, color, national origin, age, and disability. See 42 U.S.C. § 2000d (Title VI); id. § 6102 (Age Discrimination Act); 29 U.S.C. § 794 (Rehabilitation Act). These prohibitions sweep broadly, applying to “any health program or activity” receiving federal funding, as well as to “any program or activity that is administered by an Executive Agency or any entity established under [Title I of the ACA].” 42 U.S.C. § 18116(a). Section 1557 likewise adopts the “enforcement mechanisms” available under the four incorporated statutes, instructing that they “shall apply for purposes of violations.” Id. Finally, it provides that the Secretary of HHS “may” promulgate implementing regulations. Id. § 18116(c).
B. Regulatory Background 1. 2016 Rule
Exercising that delegation of authority, HHS published a rule on May 18, 2016, to “clarif[y] and codif[y] existing nondiscrimination requirements and set[] forth new standards to implement Section 1557.” Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,375, 31,376 (May 18, 2016). In doing so, the agency devoted particular attention to the statute’s prohibition on discrimination based on sex and well-documented challenges experienced by LGBTQ individuals seeking access to health care. The agency reported that for “transgender individuals, a major barrier to receiving care is a concern over being refused medical treatment based on bias against them.” Id. at 31,460. In one study, approximately 27% of transgender respondents reported that they had been refused needed health care. Id. A 2011 survey likewise revealed that 25% of transgender individuals had experienced harassment in medical settings. Id. These findings supported the belief that transgender individuals who have
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suffered such discriminatory treatment “often postpone or do not seek needed health care, which may lead to negative health consequences.” Id. HHS also noted that many insurance or other health-care providers maintained explicit exclusions of coverage for all care related to gender dysphoria — a condition characterized by distress arising from a conflict between one’s birthassigned gender and gender identity — or associated with gender transition. Id. at 31,429.
The 2016 Rule thus introduced a host of measures in response to these and other perceived barriers to accessing quality and necessary health care. Several are of particular relevance to the present litigation.
First, the 2016 Rule defined its prohibition on sex discrimination — as incorporated by way of Title IX — to include “discrimination on the basis of . . . sex stereotyping, and gender identity.” 81 Fed. Reg. at 31,467 (formerly codified at 45 C.F.R. § 92.4). The Rule explained that “gender identity” is “an individual’s internal sense of gender, . . . which may be different from an individual’s sex assigned at birth.” Id. It defined “sex stereotypes,” in turn, to include “stereotypical notions of masculinity or femininity,” as well as “the expectation that individuals will consistently identify with only one gender and that they will act in conformity with the gender-related expressions stereotypically associated with that gender.” Id. at 31,468 (formerly codified at 45 C.F.R. § 92.4). HHS explained that such “clarification” regarding the scope of Section 1557’s sex-discrimination prohibition was consistent with prior agency and judicial interpretation, and was necessary to combat continued discrimination experienced by transgender individuals seeking access to health care. Id. at 31,388, 31,460.
In addition, the 2016 Rule declined to expressly incorporate Title IX’s exemption of certain religious entities from its prohibition on sex discrimination in the event of a conflict between such prohibition and the entity’s religious tenets. As HHS explained, “Section 1557
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itself contains no religious exemption.” Id. at 31,380. The agency also cited concerns surrounding wholesale importation of Title IX’s exemption into the broader health-care context, worrying that an exemption could “result in a denial or delay in the provision of health care to individuals” and “discourag[e] [them] from seeking necessary care.” Id. While the Rule made clear that it did not incorporate Title IX’s religious exemption, it nonetheless instructed that Section 1557’s nondiscrimination mandate would not apply in the event of a conflict with federal statutory protections for religious freedom and conscience. Id. at 31,466 (formerly codified at 45 C.F.R. § 92.2(b)(2)).
Several other provisions warrant brief mention, as they also appear in this litigation. The 2016 Rule prohibited insurers from having or implementing “categorical coverage exclusion[s] or limitation[s] for all health services related to gender transition.” Id. at 31,471–72 (formerly codified at 45 C.F.R. § 92.207(b)(4)). It also required health-care providers and other covered entities to post notices and short, written “taglines” — in fifteen different languages in certain significant publications and in conspicuous physical locations — informing patients of their nondiscrimination rights and the availability of language-assistance services. Id. at 31,469 (formerly codified at 45 C.F.R. § 92.8). Finally, the Rule clarified the scope of entities to which Section 1557 applied — namely, every health program or activity that receives federal funding, is administered by HHS, or is administered by an entity established under Title I of the ACA. Id. at 31,466 (formerly codified at 45 C.F.R. 92.2(a)).
One additional piece of background regarding the 2016 Rule merits mention. In December 2016, several months after the Rule’s promulgation, a federal court in the Northern District of Texas issued a nationwide preliminary injunction barring HHS from enforcing its definition of sex discrimination insofar as it included “gender identity” (but not sex
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stereotyping). Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660, 695–96 (N.D. Tex. 2016). The court reasoned that the statutory term “sex,” as deployed in Title IX and incorporated into Section 1557, “refer[red] to the biological differences between males and females” and thus did not encompass gender identity. Id. at 688–89. It went a step further in October 2019 when it vacated that portion of the 2016 Rule and remanded it for “further consideration.” Franciscan Alliance, Inc. v. Azar, 414 F. Supp. 3d 928, 945 (N.D. Tex. 2019). Critically, as the court subsequently clarified, such vacatur applied only “insofar as the Rule defines ‘On the basis of sex’ to include gender identity . . . .” ECF No. 43 (Pl. Reply), Exh. 4 (Franciscan Alliance Order) at ECF p. 3. “The remainder of 45 C.F.R. § 92,” it made clear, “remains in effect.” Id.
2. 2020 Rule The Obama administration having departed, in June 2019, HHS issued a notice of proposed rulemaking that suggested “substantial revisions” to the 2016 Rule. See Nondiscrimination in Health and Health Education Programs or Activities, 84 Fed. Reg. 27,846, 27,848 (June 14, 2019). Many of the agency’s proposed changes became reality when it promulgated the final 2020 Rule just over a year later. See Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160 (June 19, 2020). Because the Court explains each challenged provision in additional detail when considering the merits of Plaintiffs’ various claims, the briefest of discussions of the relevant specific changes will suffice for present purposes. First, the 2020 Rule “repeal[ed] the 2016 Rule’s definition of ‘on the basis of sex,’” which — as a reminder — explicitly prohibited discrimination based on sex stereotyping and gender identity. Id. at 37,178. HHS did so on the belief that the prior definition “exceeded the scope of the authority delegated by Congress in Section 1557,” imposing legal requirements
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“that cannot be justified by the text of Title IX.” Id. at 37,161–62; see also, e.g., id. at 37,191 (explaining that “the term ‘on the basis of . . . sex’ in Section 1557 does not encompass discrimination on the basis of gender identity”). As a result of this wholesale reversal in the agency’s legal interpretation, no provision of the 2020 Rule contains any reference to “sex stereotyping” or “gender identity.” Indeed, the regulation carries no definitional provision at all, and instead simply explains that Section 1557 prohibits discrimination on the grounds barred in the four civil-rights statutes it incorporates. Id. at 37,244 (to be codified at 45 C.F.R. § 92.2).
In another policy reversal, the 2020 Rule expressly incorporated Title IX’s religious exemption into Section 1557. See 45 C.F.R. § 92.6(b) (incorporating “exemptions” contained in various statutes, including Title IX). As HHS explained, “Any educational operation of an entity may be exempt from Title IX due to control by a religious organization.” 85 Fed. Reg. at 37,207–08. The agency made clear that such exemption applied in whole to Section 1557, thereby excepting applicable operations from the statute’s prohibition on sex discrimination if inconsistent with the organization’s religious tenets. Id. at 37,207–08 & n.267. According to HHS, these and other safeguards “will protect both providers’ medical judgment and their consciences, thus helping to ensure that patients receive the high-quality and conscientious care that they deserve.” Id. at 37,206.
HHS similarly eliminated the 2016 Rule’s prohibition on insurers’ having or implementing categorical coverage exclusions for gender-affirming care. In doing so, the agency contended that no statutory authority existed for such a prohibition in the first place, and it pointed to evidence indicating division among the medical community “on many issues related to gender identity, including the value of various ‘gender-affirming’ treatments for gender dysphoria.” Id. at 37,187, 37,198.
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Next, HHS repealed the 2016 Rule’s requirements that covered entities provide various notices and taglines informing individuals of Section 1557’s prohibited grounds of discrimination and the availability of language-assistance services. The agency justified that action by emphasizing the significant costs of providing such notices in covered communications and physical locations, as well as limited evidence of their leading to increased access to care. Id. at 37,224, 37,232–33.
The 2020 Rule also narrowed the scope of entities covered under Section 1557 in two distinct ways. First, HHS interpreted the statute’s nondiscrimination protections to apply only to health programs or activities receiving federal funding, programs or activities administered by HHS under Title I of the ACA, or programs or activities administered by entities established under Title I. See 45 C.F.R. § 92.3(a). As relevant here, this regulatory action restricted the statute’s coverage to HHS programs administered under Title I of the ACA, as opposed to all of the agency’s health programs and activities (as provided by the 2016 Rule). See 85 Fed. Reg. at 37,170–71. The effect of this change would likely be to exclude certain programs administered by the Centers for Medicare & Medicaid Services and the Centers for Disease Control and Prevention, among other HHS components, from Section 1557’s reach. Id. In addition, the 2020 Rule interpreted Section 1557’s reference to “any health program or activity” receiving federal funding, see 42 U.S.C. § 18116(a), as excluding entities “principally or otherwise engaged in the business of providing health insurance.” 45 C.F.R. § 92.3(b), (c).
Finally, the 2020 Rule requires would-be plaintiffs to employ the particular enforcement mechanism and accompanying legal standard available under each of Section 1557’s incorporated statutes, depending on the precise ground of discrimination asserted. See 45 C.F.R. § 92.5; 85 Fed. Reg. at 37,202. In other words, a litigant bringing a discrimination claim on a
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ground prohibited by Title VI — e.g., race — cannot invoke the enforcement mechanisms available under Title IX. See 85 Fed. Reg. at 37,202.
3. Bostock Just four days before HHS published the 2020 Rule, the Supreme Court issued its decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), a case involving Title VII’s prohibition on discrimination “because of . . . sex.” 42 U.S.C. § 2000e–2(a)(1). The Court held that discrimination based on transgender status or sexual orientation “necessarily entails discrimination based on sex,” and accordingly falls within Title VII’s sweep. Bostock, 140 S. Ct. at 1747. In reaching that conclusion, the Court expressly assumed that “sex” “refer[red] only to biological distinctions between male and female.” Id. at 1739. Nothing turned on the original meaning of that statutory term, the Court explained, because a “straightforward” application of Title VII’s text confirmed that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Id. at 1741, 1743. In the 2020 Rule, HHS acknowledged that the Court’s forthcoming decision in Bostock “will likely have ramifications” for Title IX’s similarly worded prohibition on sex discrimination. See 85 Fed. Reg. at 37,168. That was especially so, the agency admitted, because “Title VII case law has often informed Title IX case law with respect to the meaning of discrimination ‘on the basis of sex.’” Id. HHS nevertheless pushed ahead, publishing the 2020 Rule shortly after Bostock was decided. Nowhere did the agency mention the case’s holding, let alone analyze the implications of its reasoning for HHS’s determination that “the term ‘on the basis of . . . sex’ in Section 1557 does not encompass discrimination on the basis of gender identity.” Id. at 37,191. Indeed, the final Rule suggests that HHS simply thought Bostock would
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come out differently than it ultimately did. See id. at 37,168 (stating that “the reasons why ‘on the basis of sex’ . . . does not encompass sexual orientation or gender identity under Title VII have similar force for the interpretation of Title IX”).
C. The Instant Litigation Three days after HHS finalized the 2020 Rule — but before its provisions went into effect — Plaintiffs filed this suit against the agency under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Among the current Plaintiffs are two private health-care facilities that provide services to LGBTQ people (Whitman-Walker Clinic, Inc. and Los Angeles LGBT Center) (the “health-provider Plaintiffs”); two LGBTQ-services organizations (TransLatin@ Coalition and Bradbury-Sullivan LGBT Community Center); two national associations of health professionals (American Association of Physicians for Human Rights, Inc. (GLMA) and AGLP: The Association of LGBTQ+ Psychiatrists); and four individual physicians and behavioral-health providers who work for the health-provider Plaintiffs. See ECF No. 1 (Complaint), ¶¶ 31–46. Their Complaint asserts various claims against HHS, all pertaining to the 2020 Rule. Id., ¶¶ 225–307. Soon thereafter, Plaintiffs filed this Motion for Preliminary Injunction or, in the Alternative, a Stay Pending Judicial Review. See ECF No. 29, Exh. 1 (Pl. Mot.). Much like their Complaint, the Motion asserts a congeries of claims against HHS, which run together at certain points. Stated broadly, Plaintiffs seek an order from this Court enjoining the agency from carrying out each of the aforementioned regulatory repeals and barring it from enforcing several of the newly promulgated provisions. They chiefly contend that these actions were arbitrary and capricious or otherwise foreclosed by Section 1557. In addition, Plaintiffs argue that select provisions of the 2020 Rule conflict with Section 1554, which prohibits regulations that create
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unreasonable barriers and impede access to health-care services. See 42 U.S.C. § 18114. Finally, Plaintiffs maintain that the 2020 Rule runs afoul of the Fifth Amendment’s guarantees of equal protection and substantive due process, infringes their right to free speech under the First Amendment, and violates the Establishment Clause.
Following a hearing on the Motion, the Court provided Defendants an opportunity to submit a surreply on questions relating to standing and irreparable harm, as Plaintiffs had declined to discuss the former in their opening brief. On August 17, 2020 — one week after Defendants’ supplemental filing, and one day before the 2020 Rule was scheduled to go into effect — a federal court in the Eastern District of New York “preliminarily enjoin[ed] [HHS] from enforcing the repeal” of the 2016 Rule’s definition of discrimination on the basis of sex. Walker v. Azar, No. 20-2834, 2020 WL 4749859, at *10 (E.D.N.Y. Aug. 17, 2020). Walker endorsed essentially the very argument that Plaintiffs make here — namely, that HHS’s repeal of the 2016 Rule’s definition was arbitrary and capricious in light of the agency’s failure to consider the implications of the Supreme Court’s decision in Bostock. Id. at *9–10. Because the court’s injunction remains in effect, HHS’s repeal of that definitional provision has not yet occurred. Walker, however, considered only that sole provision of the 2020 Rule; it did not decide any of the additional issues Plaintiffs raise before this Court. As a result, with the one exception, each of the 2020 Rule’s new provisions are now in effect. II. Legal Standard
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in
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his favor, and [4] that an injunction is in the public interest.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (alterations in original) (quoting Winter, 555 U.S. at 20). “The moving party bears the burden of persuasion and must demonstrate, ‘by a clear showing,’ that the requested relief is warranted.” Hospitality Staffing Solutions, LLC v. Reyes, 736 F. Supp. 2d 192, 197 (D.D.C. 2010) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)).
Historically, these factors have “been evaluated on a ‘sliding scale.’” Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009) (quoting Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 361 (D.C. Cir. 1999)). In other words, if the movant makes an “unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Id. at 1291–92. This Circuit has hinted, though not held, that Winter — which overturned the Ninth Circuit’s “possibility of irreparable harm” standard — establishes that “likelihood of irreparable harm” and “likelihood of success” are “‘independent, free-standing requirement[s].’” Sherley, 644 F.3d at 392–93 (quoting Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring)); see League of Women Voters v. Newby, 838 F.3d 1, 7 (D.C. Cir. 2016) (declining to address whether “sliding scale” approach is valid after Winter). Unresolved, too, is the related question of “whether, in cases where the other three factors strongly favor issuing an injunction, a plaintiff need only raise a serious legal question on the merits.” Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014) (internal quotation and citation omitted). III. Standing
Perhaps overconfident of their standing to bring this suit, Plaintiffs, as mentioned before, never even discussed this question in their original Motion. This threshold issue, however, is
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quite involved, given all of the discrete challenges Plaintiffs assert here. The Court, as it must, thus begins by addressing its own jurisdiction.
Article III of the Constitution limits the power of the federal judiciary to the resolution of “cases and controversies,” a phrase given meaning by the doctrine of “standing.” Whitmore v. Arkansas, 495 U.S. 149, 154–55 (1990); see U.S. Const. art. III, § 2, cl. 1. “[S]tanding is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). For that reason, finding that a plaintiff has standing is a necessary “predicate to any exercise of [the Court’s] jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc).
“Every plaintiff in federal court bears the burden of establishing the three elements that make up the ‘irreducible constitutional minimum’ of Article III standing: injury-in-fact, causation, and redressability.” Dominguez v. UAL Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012) (quoting Lujan, 504 U.S. at 560–61). First, the plaintiff “must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks and citations omitted). Second, “there must be a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.’” Id. (alterations in original) (citation omitted). Third, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id. at 561 (citation omitted). A “deficiency on any one of the three prongs suffices to defeat standing.” U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000).
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While the plaintiff “bears the burden of establishing” all three elements of standing, the “manner and degree of evidence required” to do so varies according to the “stage[] of the litigation.” Lujan, 504 U.S. at 561. “In the context of a preliminary injunction motion,” the plaintiff must “‘show a substantial likelihood of standing’ ‘under the heightened standard for evaluating a motion for summary judgment.’” Electronic Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 377 (D.C. Cir. 2017) (quoting Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 912–13 (D.C. Cir. 2015)). “Thus, the plaintiff cannot ‘rest on . . . mere allegations, but must set forth by affidavit or other evidence specific facts’ that, if ‘taken to be true,’ demonstrate a substantial likelihood of standing.” Id. (alteration in original) (quoting Lujan, 504 U.S. at 561); see also Electronic Privacy Info. Ctr. v. U.S. Dep’t of Commerce, 928 F.3d 95, 104 (D.C. Cir. 2019). “[I]n assessing plaintiffs’ standing, [the Court] must assume they will prevail on the merits of their . . . claims.” LaRoque v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011).
Because “standing is not dispensed in gross,” but instead may differ claim by claim, Davis v. FEC, 554 U.S. 724, 734 (2008) (internal quotation and alteration omitted), a plaintiff “must demonstrate standing for each claim he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). Only one plaintiff, however, needs standing in order for a particular claim to go forward. Comcast Corp. v. FCC, 579 F.3d 1, 6 (D.C. Cir. 2009). That is, if constitutional standing “can be shown for at least one plaintiff, we need not consider the standing of the other plaintiffs to raise that claim.” Carpenters Indus. Council v. Zinke, 854 F.3d 1, 9 (D.C. Cir. 2017) (quoting Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996)); see also In re Navy Chaplaincy, 697 F.3d 1171, 1176–1178 (D.C. Cir. 2012) (concluding that plaintiffs had standing because “at least some plaintiffs” would suffer injury).
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While an “inability to establish a substantial likelihood of standing” on a particular claim “requires denial of the motion for preliminary injunction,” it does not warrant outright dismissal. Food & Water Watch, 808 F.3d at 913.
The Court will first assess nine of Plaintiffs’ claims under the rubric of organizational standing. It will then consider whether they can assert the rights of third-party LGBTQ patients to bring the three remaining constitutional counts.
A. Organizational Standing 1. Legal Standard
Organizations can sue either on their own behalf (“organizational standing”) or on behalf of their members (“representational” or “associational standing”). See Ctr. for Responsible Sci. v. Gottlieb, 311 F. Supp. 3d 5, 9 (D.D.C. 2018). For reasons that will become evident, the Court largely focuses on the former theory with respect to the health-provider Plaintiffs (Whitman-Walker and LA LGBT). To establish organizational standing, Plaintiffs must show that the organization itself, like any individual plaintiff, satisfies the three familiar elements of standing — (1) injury, (2) causation, and (3) redressability. See Equal Rights Ctr. v. Post Props., 633 F.3d 1136, 1138 (D.C. Cir. 2011).
To satisfy the injury-in-fact requirement, an organization must allege a “concrete and demonstrable injury to [its] activities.” Food & Water Watch, 808 F.3d at 919 (alteration in original) (quoting PETA v. USDA (PETA II), 797 F.3d 1087, 1093 (D.C. Cir. 2015)). Conversely, “a mere ‘setback’” to the organization’s “‘abstract social interests’ is not sufficient.” Equal Rights Ctr., 633 F.3d at 1138 (quoting Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). Our Circuit memorializes this distinction in a two-part test: the Court must ask first “whether the agency’s action or omission to act ‘injured the [organization’s] interest’”; then, if
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satisfied, it inquires whether “the organization ‘used its resources to counteract that harm.’” PETA II, 797 F.3d at 1094 (alteration in original) (quoting Equal Rights Ctr., 633 F.3d at 1140); accord Food & Water Watch, 808 F.3d at 919 (employing same test); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (finding organizational injury based on an “injury to the organization’s activities” followed by “the consequent drain on the organization’s resources”).
Regarding the first prong: to qualify as an injury to the organization’s interest, the challenged activity must “perceptibly impair[] the organization’s ability to provide services.” Food & Water Watch, 808 F.3d at 919 (quoting Turlock Irrigation Dist. v. FERC, 786 F.3d 18, 24 (D.C. Cir. 2015)). Put otherwise, it must “inhibit[]” the organization’s “daily operations” in a concrete way, PETA II, 797 F.3d at 1094 (citation omitted), such as by “undermin[ing] the organization’s ability to perform its fundamental programmatic services.” Nat’l Veterans Legal Servs. Program v. U.S. Dep’t of Def., No. 14-1915, 2016 WL 4435175, at *6 (D.D.C. Aug. 19, 2016). A necessary aspect of this requirement is that there be a “direct conflict between the defendant’s conduct and the organization’s mission.” Abigail All. v. Eschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006).
Once this first prong is met, the Court moves on to the second and asks whether the organization will “use[] its resources to counteract that harm.” Food & Water Watch, 808 F.3d at 919 (quoting PETA II, 797 F.3d at 1094). While “self-inflicted” injuries do not count, Abigail All., 469 F.3d at 133, an injury is not a “self-inflicted . . . budgetary choice[]” merely by having been made willfully or voluntarily. Equal Rights Ctr., 633 F.3d at 1139 (quoting Fair Emp’t Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994)). Rather, as long as the organization will expend resources “to counteract[] the effects of the
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defendant[’s]” challenged conduct, that diversion can suffice for Article III purposes. Id. at 1140.
In a suit for preliminary injunctive relief, “past harm is not sufficient to establish an injury in fact.” Nat’l Whistleblower Ctr. v. HHS, 839 F. Supp. 2d 40, 45–46 (D.D.C. 2012). The plaintiff, rather, must show “a real and immediate — as opposed to merely conjectural or hypothetical — threat of future injury.” Nat. Res. Def. Council v. Pena, 147 F.3d 1012, 1022 (D.C. Cir. 1998) (quoting Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994)); see also City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983); Attias v. Carefirst, Inc., 865 F.3d 620, 627 (D.C. Cir. 2017) (“[W]e have frequently upheld claims of standing based on allegations of a ‘substantial risk’ of future injury.”).
The tests for causation and redressability “mirror, with little added gloss, the requirements for a non-organizational plaintiff who attempts to invoke the jurisdiction of the federal courts.” Citizens for Responsibility and Ethics in Washington v. U.S. Office of Special Counsel, No. 19-3757, 2020 WL 4530647, at *6 (D.D.C. Aug. 6, 2020). In other words, an organizational plaintiff must show that its injury is “fairly traceable to the defendant’s allegedly unlawful conduct.” Am. Soc. for Prevention of Cruelty to Animals v. Feld Ent. Inc., 659 F.3d 13, 24 (D.C. Cir. 2011). It must also be “likely” that the injury would be “redressed by a favorable court decision.” Id.
2. Application to Claims Mindful of its obligation to ensure that standing exists for every count asserted, the Court will “address seriatim” Plaintiffs’ allegations with respect to each claim. West v. Lynch, 845 F.3d 1228, 1235 (D.C. Cir. 2017). For ease of explanation, however, it will begin by describing several organizational injuries alleged by the health-provider Plaintiffs, as these asserted harms
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have consequences for several of their counts. Specifically, such harms satisfy the injury-in-fact requirement for Plaintiffs’ claims that HHS: 1) improperly eliminated the 2016 Rule’s definition of sex discrimination; 2) erred by incorporating Title IX’s religious exemption into Section 1557; 3) violated Section 1554; and 4) ran afoul of the Establishment Clause. After surveying these “common injuries,” the Court will separately address causation and redressability for all four claims. It will then separately consider standing for the five additional claims that rely on alleged organizational injury but do not share common injuries with the first four claims. Finally, as previously mentioned, the Court will analyze Plaintiffs’ remaining three constitutional counts in a separate sub-section, as they do not raise issues of organizational standing.
a. Common-Injury Claims i. Injury-in-Fact
The Court begins by laying out several organizational injuries that underlie four of Plaintiffs’ claims.
First, both Whitman-Walker and LA LGBT — i.e., the health-provider Plaintiffs — profess financial and operational injuries as a result of increased patient demand spurred by the new Rule. Specifically, they contend that growing numbers of LGBTQ patients are likely to turn to their organizations for health-care services given the patients’ augmented fear of discrimination at the hands of external providers. See Pl. Mot., Exh. 9 (Declaration of Robert Bolan), ¶¶ 11, 13, 18 (explaining that 2020 Rule is “likely to cause an increase in demand for my health care services” because “patients will come to us seeking affirming health care out of fear of discrimination elsewhere”); Exh. 3 (Declaration of Naseema Shafi), ¶ 34 (explaining that “fear of discrimination, resulting from the [2020] Rule, is likely to result in increased demand for Whitman-Walker’s health care services”); Exh. 4 (Declaration of Sarah Henn), ¶¶ 19, 29; Exh. 5
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(Declaration of Randy Pumphrey), ¶¶ 9, 14–15; Exh. 8 (Declaration of Darrel Cummings), ¶¶ 12, 18, 20; Exh. 9 (Declaration of Ward Carpenter), ¶¶ 12, 16. That increased demand, in turn, will necessarily generate “considerable operational and financial challenges.” Shafi Decl., ¶ 34; Carpenter Decl., ¶ 12. On the financial side, a larger pool of patients demanding the organizations’ services will force them to provide care on a broader scale, and the resulting expenditures will exacerbate pressure on already constrained budgets. See Shafi Decl., ¶ 34; Henn Decl., ¶ 29; Cummings Decl., ¶ 20. Operations will also suffer, as fear of discrimination will likely cause an “increase in demand for [LA LGBT’s] services,” which will “increase wait times” and “limit [LA LGBT’s] ability to provide adequate care and time to [its] patients.” Carpenter Decl., ¶¶ 12, 16. LA LGBT has likewise indicated the need to hire additional mentalhealth staff to contend with “increase[d] patient trauma” that the 2020 Rule has and will allegedly continue to cause. Id., ¶ 12.
In addition, the health-provider Plaintiffs assert a related but distinct injury: having to provide costlier and more involved treatment. According to the organizations, heightened fears of discrimination on account of the 2020 Rule will cause patients to refrain from being fully transparent with external providers regarding their LGBTQ identities and unique medical histories. See Bolan Decl., ¶ 17 (“The [2020] Rule will cause LGBTQ patients to attempt to hide their LGBTQ identities to an even greater degree when seeking health care services, especially from religiously-affiliated health care organizations, in order to avoid discrimination.”); Shafi Decl., ¶ 21 (contending that 2020 Rule will “encourage LGBTQ patients to remain closeted to the extent possible when seeking medical care”); Henn Decl., ¶¶ 19–20; Pumphrey Decl., ¶ 12; Cummings Decl., ¶¶ 18–19; Carpenter Decl., ¶ 15. Other patients will delay seeking necessary care entirely — even, at times, in cases of emergency. See Pl. Mot., Exh. 6 (Declaration of
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Bamby Salcedo), ¶ 33 (stating that “[t]ransgender and gender nonconforming people will likely delay necessary health care and preventative screenings due to fear of discrimination”); Carpenter Decl., ¶ 20; Cummings Decl., ¶ 18.
In either case, patients expose themselves to “significant adverse health consequences” and undercut the effectiveness of their eventual treatment. See Shafi Decl., ¶ 21; see also Pumphrey Decl., ¶ 12; Cummings Decl., ¶ 24. For instance, patients who conceal a same-sex sexual history may not be screened for HIV or other relevant diseases, and they may not be prescribed necessary preventive medications on account of misdiagnoses. See Shafi Decl., ¶ 21; Henn Decl., ¶ 16; Bolan Decl., ¶¶ 13–15. The consequences for the health-provider Plaintiffs are evident: a patient pool with conditions that are increasingly advanced at diagnosis and less responsive to treatment, thus requiring the organizations to expend resources on costlier and more challenging care, especially when administered in cases of emergency. See Cummings Decl., ¶¶ 9, 16 (explaining that 2020 Rule “increases patients’ reluctance to seek care for both minor and serious conditions” and “exacerbate[s]” number of patients who arrive at LA LGBT “with acute medical conditions that could have been avoided but-for the[ir] reluctance to seek routine and necessary medical care for fear of discrimination”); Henn Decl., ¶¶ 18–21 (describing how deferral of care “strain[s] Whitman-Walker’s resources,” “increase[s] costs,” and “make[s] it harder for our health care providers to treat the patients”); Bolan Decl., ¶ 11; Carpenter Decl., ¶¶ 11–12, 15.
Each of these qualifies as an injury to the health-provider Plaintiffs’ interests. Increased demand and fear of discrimination “perceptibly impair [their] ability to provide services,” Food & Water Watch, 808 F.3d at 919 (citation omitted), thus “inhibit[ing]” their “daily operations” by forcing them to deliver costlier and more difficult treatment to a growing number of patients.
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PETA II, 797 F.3d at 1094. “These are real, concrete obstacles to [Plaintiffs’] work, rather than the kind of ‘abstract concern that does not impart standing.’” PETA v. USDA, 7 F. Supp. 3d 1, 8 (D.D.C. 2013) (quoting Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995)), aff’d, 797 F.3d at 1089; see also Dist. of Columbia v. USDA, 444 F. Supp. 3d 1, 40– 42 (D.D.C. 2020) (determining that plaintiff organization suffered injury-in-fact by showing that agency action would cause individuals to turn to organization’s programs, thereby “increasing demand and forcing [the organization] to divert resources” away from other programs in order to service such demand); Fair Emp’t Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994) (finding organizational standing satisfied where protested action “might increase the number of people in need of counseling . . . [and] reduce[ ] the effectiveness of any given level of [the organization’s] outreach efforts”).
These harms, moreover, directly frustrate Plaintiffs’ missions “to offer affirming community-based health and wellness services to all.” Shafi Decl., ¶¶ 3, 40; see also Cummings Decl., ¶¶ 3–4, 33 (similar). And it is evident that the organizations will “use[] [their] resources to counteract” such injury, spending more money and exerting more manpower at a time when resources are already stretched thin. Food & Water Watch, 808 F.3d at 919 (quoting PETA II, 797 F.3d at 1093).
Resisting such a conclusion, Defendants first assert that Plaintiffs “cannot explain how the 2020 Rule might injure them as opposed to others not before the Court.” ECF No. 42 (Def. Opp.) at 11–12. On the contrary, far from asserting a mere “generalized grievance,” Plaintiffs have alleged concrete and particularized financial and programmatic injuries affecting them uniquely as health-care providers. See Duke Power Co. v. Carolina Envt’l Study Grp., Inc., 438 U.S. 59, 80 (1978).
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Next, Defendants characterize Plaintiffs’ alleged “financial harm” as “fatally unspecific.” ECF No. 48 (Def. Surreply) at 10. To the extent the Government suggests that Plaintiffs need provide a greater accounting of their alleged financial injury than they already have, see ECF No. 46 (Aug. 3, 2020, Hearing Transcript) at 32, they are mistaken. The precise amount of economic harm a plaintiff suffers is “irrelevant,” as even “[a] dollar . . . is still an injury-in-fact for standing purposes.” Carpenters Indus. Council, 854 F.3d at 5–6; see also Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017) (“For standing purposes, a loss of even a small amount of money is ordinarily an ‘injury.’”). And although Defendants attack Plaintiffs’ allegations as “amorphous,” they never engage with them specifically, instead opting to rely on non-binding authority that is far afield. See Def. Surreply at 10. In International Academy of Oral Medicine & Toxicology v. U.S. Food & Drug Administration, 195 F. Supp. 3d 243 (D.D.C. 2016), for instance, the court rejected the plaintiff organization’s standing argument on the unremarkable ground that it had not specifically identified a member who claimed she would suffer future injury, as required to assert representational — as opposed to organizational — standing. Id. at 264–65. And in Freedom Watch, Inc. v. McAleenan, 442 F. Supp. 3d 180 (D.D.C. 2020), the plaintiff organization offered only “bare assertions” devoid of any “factual allegations to establish, with any level of clarity,” how the Government’s refusal to conduct a criminal investigation of a third party would generate a “downturn in financial support” for the organization. Id. at 187, 191–92.
Defendants finally argue that Plaintiffs’ alleged harm is “conjectural.” Def. Opp. at 12 (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013)). Specifically, they contend that Plaintiffs’ claim is premised on a “risk of discrimination in health care” — namely, the belief that third-party medical providers “may choose to deny individuals certain procedures or
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coverage” or otherwise engage in discrimination against LGBTQ patients. Id. That outcome, Defendants insist, is “far from inevitable.” Id. Another court just last week endorsed this reasoning, holding that the State of Washington lacked standing to challenge the 2020 Rule because it had not demonstrated that the Rule would “yield an increase in discrimination against LGBTQ individuals or a decrease in available healthcare or health coverage.” Washington v. HHS, No. 20-1105, slip op. at 19 (W.D. Wash. Aug. 28, 2020).
The health-provider Plaintiffs, however, do not stake their primary injury-in-fact claim on this potentiality. Instead, they assert that LGBTQ patients’ fear of discrimination at the hands of third parties — regardless of whether such discrimination ultimately occurs — will cause individuals to turn to Plaintiff organizations for care, thereby necessarily generating financial and operational burdens that “impair[] [Plaintiffs’] ability to provide services.” Food & Water Watch, 808 F.3d at 919 (citation omitted). That result is far from “conjectural”; as demonstrated above, anxiety surrounding the possibility of discrimination and denial of treatment is substantially likely to provoke such behavior. See supra at 21–23. The result, similarly, is easily distinguished from the highly attenuated chain of possibilities deemed insufficient in Clapper, where the harm “would not have arisen unless a series of independent actors, including intelligence officials and Article III judges, exercised their independent judgment in a specific way.” Attias, 865 F.3d at 628 (citing Clapper, 568 U.S. at 410–14). Plaintiffs, accordingly, have demonstrated a “substantial risk” that the alleged harm “will occur,” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Clapper, 568 U.S. at 414 n.5), thus rendering it “sufficiently ‘imminent’ for standing purposes.” Attias, 865 F.3d at 627 (quoting Food & Water Watch, 808 F.3d at 915).
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ii. Causation and Redressability Having addressed the common injuries-in-fact for four of Plaintiffs’ claims, the Court now considers independently the other standing requirements — viz., causation and redressability — for each of those counts.
(a) Elimination of 2016 Rule’s Definition of Sex Discrimination
Plaintiffs first challenge HHS’s repeal of the 2016 Rule’s definition of discrimination “on the basis of sex,” which explicitly prohibited discrimination based on sex stereotyping and gender identity. They must show that the injuries described above are “fairly . . . trace[able] to” such repeal. Lujan, 504 U.S. at 560–61 (alterations in original) (citation omitted). Where causation depends on the conduct of a third party not before the court, “standing is not precluded, but it is ordinarily substantially more difficult to establish.” Id. at 562 (citation and internal quotation marks omitted). Plaintiffs must show that the third party will act “in such manner as to produce causation.” Id. A permissible theory of standing “does not rest on mere speculation about the decisions of third parties; it relies instead on the predictable effect of Government action on the decisions of third parties.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2566 (2019).
The health-provider Plaintiffs successfully clear the bar. Their proposed causal chain is relatively simple: the 2020 Rule’s elimination of the prior explicit prohibitions on discrimination based on sex stereotyping and gender identity instilled in LGBTQ patients a fear of discrimination at the hands of external providers, thereby causing Plaintiff organizations to suffer the financial and operational consequences of higher demand. Of course, as this theory makes clear, it is the patients’ decisions to seek services from the health-provider Plaintiffs that most immediately causes their harm. The law is clear, however, that Plaintiffs may establish standing
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based on the actions of third parties, so long as there is “substantial evidence of a causal relationship between the government policy and the third-party conduct, leaving little doubt as to causation.” Americans for Safe Access v. Drug Enforcement Admin., 706 F.3d 438, 446 (D.C. Cir. 2013) (citation omitted). Indeed, the D.C. Circuit has routinely found causation established in cases where the relevant “third-party conduct . . . is voluntary but reasonably predictable.” Competitive Enter. Inst. v. FCC, No. 18-1281, 2020 WL 4745272, at *8 (D.C. Cir. Aug. 14, 2020); see also, e.g., Energy Future Coal. v. EPA, 793 F.3d 141, 144 (D.C. Cir. 2015); Tozzi v. HHS, 271 F.3d 301, 308–10 (D.C. Cir. 2001); Competitive Enter. Inst. v. NHTSA, 901 F.2d 107, 116–17 (D.C. Cir. 1990).
Plaintiffs have provided “substantial evidence,” Americans for Safe Access, 706 F.3d at 446 (citation omitted), that the 2020 Rule’s elimination of the explicit prohibition on discrimination based on sex stereotyping and gender identity has caused — and will continue to cause — patients to fear discrimination at the hands of third parties. See, e.g., Cummings Decl., ¶¶ 11–12 (explaining that elimination of these prohibitions “caused immediate panic” among LA LGBT patients and leads them to “fear discrimination”); Salcedo Decl., ¶ 23 (transgender woman stating that “[t]he [2020] Rule’s elimination of the clear regulatory protections in the 2016 Final Rule . . . heightens my fears, as it communicates to health care providers that such discrimination is acceptable”); Pumphrey Decl., ¶ 9 (stating that repeal of prohibitions “will on its own invoke increased fear and trauma among LGBTQ patients”); Henn Decl., ¶ 7; Pl. Mot., Exh. 7 (Declaration of Ariana Inurritegui-Lint), ¶ 48; Exh. 13 (Declaration of Roy Harker), ¶ 14. It is that rational fear that will drive LGBTQ patients to rely increasingly on the services of the health-provider Plaintiffs. See supra at 21–23. The resulting harm that these organizations will likely suffer — principally, having to expend more resources to care for patients — is therefore
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“attributable to” the 2020 Rule. Block v. Meese, 793 F.2d 1303, 1308 (D.C. Cir. 1986); see also Scenic Am., Inc. v. DOT, 983 F. Supp. 2d 170, 179–80 (D.D.C. 2013).
Defendants nonetheless argue that Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976), precludes a finding of causation here. See Def. Opp. at 9–10; Def. Surreply at 4. But Simon does not stand for the proposition that Plaintiffs cannot establish causation when their injury stems most immediately from third-party conduct. See Block, 793 F.2d at 1309 (“It is impossible to maintain, of course, that there is no standing to sue regarding action of a defendant which harms the plaintiff only through the reaction of third persons.”). The case, instead, turned on its particular facts. The plaintiffs there claimed that the Internal Revenue Service’s favorable tax treatment of certain hospitals caused those hospitals to refrain from providing indigent patients free care. See 426 U.S. at 42–44. The Court only dismissed for lack of standing because the plaintiffs’ allegations failed to show that the hospitals would have chosen to provide free care but for the challenged benefit. Id. This case, by contrast, involves “very different” evidence. Competitive Enter. Inst., 2020 WL 4745272, at *8. Plaintiffs have provided ample support for their allegation that they will likely suffer financial and operational injury as a result of the 2020 Rule. Id. (finding Simon inapplicable where plaintiff established a reasonable likelihood of harm from Government action, even when such harm turned on third-party conduct).
Although Defendants do not invoke it in the context of causation, Clapper likewise does not preclude a finding that Plaintiffs’ injuries are fairly traceable to the 2020 Rule. There, the Supreme Court explained that plaintiffs do not have standing simply because they incur certain costs as a “reasonable reaction” to a risk of harm when that harm “is not certainly impending.” Clapper, 568 U.S. at 416. The Court was concerned about the potential for plaintiffs to
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“manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Id. No such hazard exists here. As the health-provider Plaintiffs explain, they will be forced to incur financial and operational costs because LGBTQ patients — independent third parties — will fear discrimination as a result of the 2020 Rule and respond accordingly. It is the substantial likelihood of increased demand caused by the patients’ own independent decisions in response to the 2020 Rule that will generate Plaintiffs’ injury, not the reactions of the organizations themselves to a risk of future discrimination as a result of the Rule. Because Plaintiffs’ harm derives from the uncoordinated actions of non-plaintiffs, the organizations are not “inflicting harm on themselves,” and Clapper thus does not control.
With causation satisfied, the Court now turns to redressability. As a reminder, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that [Plaintiffs’] injury will be ‘redressed by a favorable decision.’” Lujan, 504 U.S. at 561 (citation omitted); Int’l Ladies' Garment Workers’ Union v. Donovan, 722 F.2d 795, 811 (D.C. Cir. 1983) (explaining that plaintiffs do not have “to prove that granting the requested relief is certain to alleviate’ their injury”). “Causation and redressability typically ‘overlap as two sides of a causation coin.’” Carpenters Indus. Council, 854 F.3d at 6 n.1 (quoting Dynalantic Corp. v. Dep’t of Defense, 115 F.3d 1012, 1017 (D.C. Cir. 1997)). For “if a government action causes an injury, enjoining the action usually will redress that injury.” Id.
Redressability here, however, involves an unexpected wrinkle, one involving the previously discussed decision from the Northern District of Texas. As a reminder, the 2016 Rule specifically defined Section 1557’s prohibition on sex discrimination to include “discrimination on the basis of . . . sex stereotyping, and gender identity.” 81 Fed. Reg. at 31,467 (formerly
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codified at 45 C.F.R. § 92.4). Before the 2020 Rule was finalized, however, that Texas court vacated the “gender identity” portion of this definition. See Franciscan Alliance Order at ECF p. 3 (“[T]he Court VACATES the Rule insofar as the Rule defines ‘On the basis of sex’ to include gender identity . . . .”); see also Franciscan Alliance, 414 F. Supp. 3d at 945. That meant that the 2016 Rule’s original prohibition on discrimination based on gender identity was no longer part of the regulation. As a result, even if this Court were to grant Plaintiffs their desired relief and enjoin HHS from enforcing its repeal of the 2016 definition, the resulting regulation would not contain any language barring gender-identity discrimination. Put differently, enjoining or vacating the 2020 Rule would not suddenly make gender-identity discrimination illegal under Section 1557 — or change how the regulatory text addresses gender-identity discrimination — because the relevant provision of the 2016 Rule was no longer in effect following Franciscan Alliance.
All Plaintiffs say in response is that the Supreme Court’s recent decision in Bostock “abrogat[ed]” Franciscan Alliance, rendering its vacatur “a legal nullity.” Pl. Reply at 3. Yet they identify no authority that would permit either this Court or HHS to disregard the final order of a district court vacating part of a regulation. Indeed, that vacatur remains final today, as the Government did not appeal the court’s decision. When pressed at the hearing on this Motion, moreover, Plaintiffs insisted that they had also challenged other provisions that were not vacated. See Hrg. Tr. at 7. But Defendants’ redressability argument is confined to this regulatory provision, see Def. Surreply at 3–4, vacatur of which renders the Court powerless to revive it. Cf. Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. § 10:29 (3d ed.) (“A court cannot, generally speaking, rewrite or ‘fix’ an agency’s rule insofar as doing so would require the court to infringe on the agency’s policymaking authority.”). The Eastern District of New
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York recently reached the same conclusion in a parallel case there. Walker, 2020 WL 4749859, at *7 (explaining that court “has no power to revive a rule vacated by another district court”).
This result, however, does not completely doom Plaintiffs’ challenge to this provision. That is because their claim is not confined to the “gender identity” language; they also contest HHS’s elimination of the 2016 Rule’s definition of sex discrimination as including discrimination based on sex stereotyping. See Pl. Reply at 5 (explaining that desired relief “would prohibit discrimination on the basis of gender identity and sex stereotypes”) (emphasis added); Compl., ¶ 13. Franciscan Alliance, notably, did not vacate this latter definitional provision; the court’s opinion never even mentioned it. See 414 F. Supp. 3d 928. Indeed, the court’s final order explicitly stated that aside from the provision specifically vacated (and one other not relevant here), “[t]he remainder of 45 C.F.R. § 92 remains in effect.” Franciscan Alliance Order at ECF p. 3.
Were this Court to enjoin the relevant provision of the 2020 Rule, therefore, Plaintiffs would be left with the 2016 Rule’s prohibition on discrimination based on sex stereotyping. See Def. Opp. at 9 (“Enjoining the challenged 2020 Rule would leave plaintiffs with the non-vacated portions of the 2016 Rule.”). That relief would clearly redress at least some of their injury. See Walker, 2020 WL 4749859, at *7 (finding redressability satisfied because “Franciscan Alliance did not address the concept of ‘sex stereotyping’ embodied in the 2016 Rule”); Defs. of Wildlife v. Gutierrez, 532 F.3d 913, 925 (D.C. Cir. 2008) (finding standing established when “order from the district court could redress appellants’ injury, at least in part”). Just as eliminating the 2016 Rule’s definition of “on the basis of sex” has and will increase fear of discrimination among LGBTQ patients, with the consequent harms for the health-provider Plaintiffs, reviving part of that prior provision will likely lessen those fears. It is far from “speculative,” Lujan, 504 U.S. at
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561 (citation omitted), to conclude that reinstating an explicit prohibition against discrimination based on sex stereotyping will affect the behavior of LGBTQ patients — especially when their alleged fear is directly attributable to the 2020 Rule, the arguable centerpiece of which eliminated language containing that prohibition. See, e.g., Shafi Decl., ¶ 34; Bolan Decl., ¶ 18; Henn Decl., ¶¶ 7, 19. Indeed, even HHS admits that the 2016 Rule “likely induced many covered entities to conform their policies and operations” to the regulation’s definition of sex discrimination, and that elimination of that definition may cause some covered entities to “revert to the policies and practices they had in place before” the 2016 Rule. See 84 Fed. Reg. at 27,876.
In a brief attempt to escape this result, Defendants suggest that some providers could opt to avoid the strictures of Section 1557 by refusing to accept federal funds altogether. See Def. Opp. at 10; 42 U.S.C. § 18116(a) (applying restrictions to “any health program or activity, any part of which is receiving Federal financial assistance”). Defendants, however, fail to provide even a single instance in which an entity covered by Section 1557 has declined federal funding for the purpose of avoiding the provision’s requirements. It defies belief that a “significant number” of covered entities would so surrender federal assistance, especially when there is no evidence of such behavior in the aftermath of the 2016 Rule. Action All. of Senior Citizens v. Heckler, 789 F.2d 931, 938–39 (D.C. Cir. 1986) (rejecting similar argument that redressability is not established because recipients of federal funding might surrender funding rather than comply with regulation).
Because a favorable ruling will likely redress at least some of Plaintiffs’ injury, the Court finds that they have standing to attack the 2020 Rule’s elimination of the 2016 Rule’s prohibition on discrimination based on sex stereotyping.
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(b) Incorporation of Title IX’s Religious Exemption Plaintiffs’ challenge to the 2020 Rule’s incorporation of Title IX’s religious exemption similarly clears the causation and redressability bars. That exemption, to review, excuses certain religious organizations from Title IX’s nondiscrimination mandate if application of such mandate would be inconsistent with the organization’s “religious tenets.” 20 U.S.C. § 1681(a)(3). The analysis proceeds in similar fashion to that regarding Plaintiffs’ challenge to the Rule’s elimination of the sex-discrimination definition. Specifically, there is “substantial evidence” that HHS’s newly and explicitly incorporated religious exemption will cause patients to fear discrimination at the hands of religiously affiliated providers, once again “leaving little doubt as to causation.” Americans for Safe Access, 706 F.3d at 446 (citation omitted). As one declarant puts it, the 2020 Rule “will cause LGBTQ patients to attempt to hide their LGBTQ identities when seeking health care services, especially from religiously-affiliated health care organizations, in order to avoid discrimination.” Harker Decl., ¶ 19; see also Bolan Decl., ¶ 17 (similar); Pl. Mot., Exh. 11 (Declaration of Adrian Shanker), ¶¶ 22–23 (stating that 2020 Rule’s religious exemption will “exacerbate” number of LGBTQ patients who “remain closeted” while seeking health care out of fear of discrimination); Cummings Decl., ¶ 19 (explaining that “[t]ransgender and gender nonconforming clients are particularly likely to delay care as a result of the” 2020 Rule’s religious exemption). Such apprehension, in turn, further contributes to increased demand for the services of the health-provider Plaintiffs and their accompanying financial and operational injuries. Defendants yet again assail Plaintiffs’ causation argument as unduly speculative, contending that it “assumes that a provider who would otherwise refuse to offer services as a
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result of the dictates of his or her religion, would be willing to violate those same beliefs in order to comply with a hypothetical HHS regulation.” Def. Surreply at 8. As already explained, however, Plaintiffs’ argument for standing rests not on the possibility of third-party, religiously affiliated providers actually discriminating against LGBTQ patients, but rather on patients’ genuine fear of encountering discrimination when seeking care from such institutions. It is that apprehension, immediately stimulated by the 2020 Rule’s incorporation of Title IX’s religious exemption, that contributes to the particular organizational injuries the health-provider Plaintiffs have asserted. Far from resting on “mere speculation about the decisions of third parties” — viz., LGBTQ patients — therefore, Plaintiffs’ theory “relies instead on the predictable effect of Government action” on such decisions. Dep’t of Commerce, 139 S. Ct. at 2566.
“Having found that [Plaintiffs] satisf[y] the element of causation, the issue of redressability is straightforward.” Ciox Health, LLC v. Azar, 435 F. Supp. 3d 30, 52 (D.D.C. 2020). Just as explicitly incorporating Title IX’s religious exemption into Section 1557 spurred LGBTQ patients’ fear of discrimination, enjoining such incorporation would likely palliate such fear and “redress [Plaintiffs’] injury, at least in part.” Defs. of Wildlife, 532 F.3d at 925.
(c) Section 1554 and Establishment Clause Plaintiffs claim that the 2020 Rule violates Section 1554’s prohibition on, inter alia, regulations that “create[] any unreasonable barriers to the ability of individuals to obtain appropriate medical care” or “impede[] timely access to health care services.” 42 U.S.C § 18114(1)–(2); Pl. Mot. at 26. They also contend that the 2020 Rule “facilitate[s] the religious beliefs of objecting providers, without exception,” thereby running afoul of the Establishment Clause. See Pl. Mot. at 33. With the above discussion in mind, standing for each challenge is readily established.
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While Plaintiffs’ opening brief does not state the contours of their Section 1554 claim with much particularity, see Pl. Mot. at 26, their reply makes clear that the challenge is premised in part on the 2020 Rule’s elimination of the explicit prohibition on discrimination based on sex stereotyping and gender identity, as well as its incorporation of religious exemptions. See Pl. Reply at 19–20. Their Establishment Clause claim, in turn, rests squarely on HHS’s incorporation of Title IX’s religious exemption. See Pl. Mot. at 33. Their standing to assert each claim thus follows directly from their standing to challenge the individual regulatory provisions as arbitrary and capricious. Defendants offer no reason why the analysis might differ.
b. Additional Organizational-Injury Claims With standing thus established for the four “common-injury” claims, the Court now separately considers five additional counts that also rely on alleged organizational injury. It ultimately renders a split decision: Plaintiffs have successfully established standing for their challenges to HHS’s elimination of: 1) the 2016 Rule’s prohibition on categorical coverage exclusions for gender-affirming care; and 2) its notice requirements. They have not, however, demonstrated a substantial likelihood of standing for their claims that the 2020 Rule: 3) improperly restricted Section 1557’s scope to Title I programs or activities; 4) improperly excluded health insurers from Section 1557’s coverage; and 5) erroneously interpreted Section 1557’s legal standard.
i. Elimination of Prohibition on Categorical Coverage Exclusions In support of its challenge to HHS’s elimination of the 2016 Rule’s prohibition on categorical coverage exclusions for gender-affirming care, Plaintiff Whitman-Walker asserts a monetary injury — namely, that it will obtain reduced reimbursements from insurers that scale back their coverage of such treatment. See Shafi Decl., ¶ 35. Whitman-Walker hosts many
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patients who require hormone therapy and affirming mental-health services. Id. As a result of the 2020 Rule’s elimination of the 2016 Rule’s prohibition on coverage exclusions for such care, Whitman-Walker asserts it will experience a monetary loss in the form of lower reimbursements. Id. That loss will further “undermin[e] the organization’s ability to perform its fundamental programmatic services,” Nat’l Veterans Legal Servs. Program, 2016 WL 4435175, at *6, and force it to rely more heavily on resources from other sources, including increasing charges to patients and drawing from its already depleted fundraising and grant revenue. See Shafi Decl., ¶ 35.
Defendants characterize this asserted injury as unduly speculative, pointing out that the 2016 Rule “prohibited only categorical exclusions — it did not speak to individual determinations.” Def. Surreply at 5. They thus maintain that “a covered entity may choose to deny a claim” under either the 2016 or 2020 Rule. Id. The mere fact that insurers under the 2016 Rule could deny coverage based on individual determinations, however, does not vitiate the reality of a substantially increased risk of injury posed by a categorical exclusion. It is by no means speculative to conclude that, under the 2020 Rule, certain insurers will deny reimbursement for treatment they previously covered. See Shanker Decl., ¶ 28 (asserting that removing coverage requirements for insurance providers will cause patients to “most certainly experience increased denials of coverage for their medically necessary health care”); Carpenter Decl., ¶ 13 (mentioning patients’ fear that “they will no longer have access to hormone therapy to treat gender dysphoria” as result of regulatory changes). Indeed, HHS itself admits that some insurers will not maintain coverage consistent with the 2016 Rule’s requirements. See 85 Fed. Reg. at 37,181. Plaintiffs need only show a “substantial risk” of the alleged harm, not an
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outright certainty; they have carried that burden. Susan B. Anthony, 573 U.S. at 158; Attias, 865 F.3d at 627.
They likewise successfully establish causation and redressability. The D.C. Circuit has repeatedly held that “injurious private conduct is fairly traceable to the administrative action contested in the suit if that action authorized the conduct or established its legality.” Tel. & Data Sys., Inc. v. FCC, 19 F.3d 42, 47 (D.C. Cir. 1994); see also Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 940 (D.C. Cir. 2004), abrogation on other grounds recognized in Perry Capital LLC v. Mnuchin, 864 F.3d 591 (D.C. Cir. 2017) (collecting cases). Here, the injurious private conduct — insurers’ eliminating prohibitions on categorical coverage exclusions of gender-affirming care — was illegal under the 2016 Rule but made permissible by the 2020 Rule. See Tel. & Data Sys., 19 F.3d at 47. The requisite causation, therefore, exists. See Cares Cmty. Health v. HHS, 346 F. Supp. 3d 121, 127 (D.D.C. 2018) (finding injury fairly traceable to government action even though monetary injury caused by insurance company’s modifying contract because such modification “would be unlawful” in absence of government action). An order restoring the 2016 Rule’s prohibition on categorical coverage exclusions, moreover, would redress Plaintiffs’ injury. See Nat’l Wrestling Coaches, 366 F.3d at 940–41 (“Causation and redressability thus are satisfied in this category of cases, because the intervening choices of third parties are not truly independent of government policy.”).
ii. Elimination of Notice Requirements Plaintiffs next challenge HHS’s repeal of the 2016 Rule’s requirement that covered entities provide various notices and taglines informing the public of their nondiscrimination and accessibility rights under Section 1557. Their alleged injury stemming from that repeal once
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again centers on harm to the organizations themselves, most urgently in the form of increased costs.
According to Plaintiff Whitman-Walker, the 2016 Rule’s notice and tagline provisions “are critical to ensure meaningful access to care.” Shafi Decl., ¶ 32. Those provisions required that covered entities issue notice to the public that they provide, among other things, languageassistance services, including translated documents and oral interpretation. See 81 Fed. Reg. at 31,469 (formerly codified at 45 C.F.R. § 92.8); see also id. at 31,470 (formerly codified at 45 C.F.R. § 92.201) (detailing covered entities’ language-access obligations). Plaintiffs argue that notice of the availability of such services is “crucial to promoting positive patient health outcomes” by way of ensuring full communication between patient and provider. See Henn Decl., ¶¶ 16, 25. Indeed, even HHS acknowledged that at least some covered entities likely “experienced an increase in translation services after the 2016 Rule.” 85 Fed. Reg. at 37,233. Removal of such notices, in turn, renders it increasingly difficult for patients with limited English proficiency (LEP) to understand their rights to language services and how they can utilize them, thereby hindering access to meaningful health care. See Shafi Decl., ¶ 32 (explaining that LEP patients “will not be aware of their rights or the programs or services available to them when they go to other health care facilities”); Pumphrey Decl., ¶ 13; Henn Decl., ¶ 25; see also 85 Fed. Reg. at 37,233 (acknowledging record evidence that “removing the notice and taglines requirements may cause [LEP] individuals to delay care or not receive care until their medical issues are more severe and costlier to treat”).
The implication for Whitman-Walker is clear: provision of costlier and more difficult treatment. As previously described, see supra at 21–23, inadequate care elsewhere leads to increased patient demand, as well as a patient pool with conditions that are increasingly
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advanced at diagnosis and less responsive to treatment. The elimination of notice and tagline provisions once again perpetuates these concrete harms. See Shafi Decl., ¶ 33 (explaining that Whitman-Walker will experience “increased costs because its patients will come to us sicker as a result of inadequate care elsewhere”); Henn Decl., ¶ 25 (asserting that elimination of notice requirements will “diminish[] . . . meaningful access to health care” and will, in turn, “cause more patients to seek out care at Whitman-Walker”); see also Shanker Decl., ¶ 27 (stating that elimination of notice and tagline requirements will “make it much more difficult for transgender and gender nonconforming patrons . . . to understand their rights and how to advocate for such rights”); Salcedo Decl., ¶ 41 (explaining that without the notices, patients “will avoid seeking care until they feel they are sufficiently proficient in speaking and reading English, which will worsen their underlying and untreated medical conditions”).
In response, Defendants insist that Plaintiff organizations “remain free to voluntarily provide the notices required by the 2016 Rule.” Def. Opp. at 12. True, but irrelevant. As explained, the harm Plaintiffs experience occurs when other providers do not post notices. Defendants also misunderstand the scope of the present Motion. Their surreply contends exclusively that Plaintiffs lack standing to challenge HHS’s changes to language-access provisions, in part because they have not demonstrated imminent harm. See Def. Surreply at 6– 7; see also Def. Opp. at 25–26. While Plaintiffs’ opening brief is admittedly ambiguous as to whether they challenge regulatory action in addition to HHS’s repeal of the notice and tagline requirements, their reply concentrates nearly exclusively on the repeal of those latter provisions. See Pl. Reply at 14–16; see also Hrg. Tr. at 22–23 (Plaintiffs stating that present Motion focuses on this repeal). In any event, Plaintiffs’ asserted injury does not require the Court to assume “a highly attenuated chain of possibilities.” Clapper, 568 U.S. at 410. Rather, “a substantial risk of
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harm exists already,” simply by virtue of the elimination of the notice and tagline requirements, which Plaintiffs have demonstrated will likely bear tangible implications for Whitman-Walker’s provision of services. See Attias, 865 F.3d at 629.
Causation and redressability, once again, are easily established. The injurious private conduct — namely, providers’ declining to deliver notices of patients’ health-care rights under Section 1557 — was illegal under the 2016 Rule, but made permissible by the 2020 Rule. That reality renders such conduct “fairly traceable to the administrative action contested.” Tel. & Data Sys., 19 F.3d at 47. And an order restoring the 2016 Rule’s notice and tagline requirement would redress Plaintiffs’ injury because covered entities would once again be required to provide them. See Nat’l Wrestling Coaches, 366 F.3d at 940–41.
iii. Narrowing Scope of Covered Entities As previewed above, Plaintiffs’ standing arguments are not all successful; indeed, they encounter significantly rockier terrain with respect to the claims that follow. The Court begins with their dual contentions that the 2020 Rule 1) improperly restricted Section 1557’s coverage to programs or activities administered by HHS under Title I of the ACA, as opposed to all of the agency’s health programs and activities; and 2) improperly excluded entities principally engaged in providing health insurance from Section 1557’s coverage. Their fleeting attempt to invoke standing to challenge these regulatory actions is muddled at best and does not enable the Court, at this juncture, to conclude that they have stated a constitutionally cognizable injury. Plaintiffs cite several declaration excerpts in support of their standing to challenge HHS’s narrowing of entities covered under Section 1557. See Pl. Reply at 6; Hrg. Tr. at 15. All, however, share common defects. Two declarations simply allege that such narrowing “will result in discrimination against LGBTQ patients.” Shafi Decl., ¶ 28; see also Cummings Decl.,
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¶ 31 (similar). The health-professional-association Plaintiffs similarly assert that the 2020 Rule “invites harassment and discriminatory treatment of GLMA members with regard[] to terms and conditions of employment based on their LGBTQ status.” Pl. Mot., Exh. 12 (Declaration of Hector Vargas), ¶ 18; see also Harker Decl., ¶¶ 16–17 (contending that members “could lose regulatory protections from discrimination regarding . . . employment benefits” and “may be subjected to discrimination”). In addition, a GLMA member who works for the Indian Health Service — which, as a non-Title I program, would no longer be covered by Section 1557 — states that she “will no longer . . . be protected from discrimination in health care pursuant to Section 1557.” Pl. Mot., Exh. 14 (Declaration of Deborah Fabian), ¶¶ 2, 5, 21. Finally, TransLatin@ Coalition members who rely on public-health-insurance coverage through Medicaid — which also would no longer enjoy Section 1557’s protections — allege that they will suffer discrimination. See Inurritegui-Lint Decl., ¶¶ 56–58; Salcedo Decl., ¶¶ 38–39.
The Court cannot credit these bids for standing. To satisfy Article III’s strictures, the reader will well recall, Plaintiffs must demonstrate that the alleged future injury is “imminent.” Bennett v. Spear, 520 U.S. 154, 167 (1997); see also Whitmore, 495 U.S. at 158 (“Allegations of possible future injury do not satisfy the requirements of [Article] III.”). To “shift[] injury from ‘conjectural’ to ‘imminent,’” Plaintiffs must show that there is a “substantial . . . probability” of injury. Sherley, 610 F.3d at 74. Simply asserting, without any elaboration, that individuals will experience discrimination at the hands of Title I programs and health insurers does not “suffice[] to demonstrate the ‘substantial probability’” that discrimination will actually occur as required to establish standing. Chamber of Commerce v. EPA, 642 F.3d 192, 201 (D.C. Cir. 2011). Equally glaring is the absence of any explanation as to how Plaintiffs’ alleged injury is caused by these regulatory actions. That is, they never attempt to demonstrate how narrowing the scope of
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covered entities will give rise to injury, let alone provide “substantial evidence” in support of such a “causal relationship.” Americans for Safe Access, 706 F.3d at 446 (citation omitted).
Separately, Plaintiff Bradbury-Sullivan Center suggests that it “no longer will be able to rely” on the 2016 Rule’s “clear guidance” when advocating for patrons “when they encounter . . . insurance coverage exclusions.” Pl. Reply at 8 (citing Shanker Decl., ¶¶ 8-9). Even assuming that the elimination of such guidance sufficiently “impair[s] [its] ability to provide services,” nowhere does Bradbury-Sullivan explain how it has or will “use[] its resources to counteract that harm” — specifically, its alleged diminished ability to advocate on behalf of patients to insurers. See Food & Water Watch, 808 F.3d at 919 (citation omitted).
While Plaintiffs’ inability to establish “a substantial likelihood of standing” requires denial of their present Motion with respect to these two claims regarding the scope of Section 1557’s coverage, this is not necessarily the end of the line. The Court does not rule out the potential for Plaintiffs to better support their standing argument in the future with revamped allegations. See Food & Water Watch, 808 F.3d at 913. For instance, their briefs contain no mention of representational standing, which would provide them a chance to assert standing premised on future harm to their members and patients. See Chamber of Commerce, 642 F.3d at 199 (representational-standing criteria); Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009) (requiring Plaintiffs to “make specific allegations establishing that at least one identified member had suffered or would suffer harm”). To be successful, of course, any such effort would need to address the various shortcomings identified in this Opinion.
iv. Section 1557 Legal Standard The Court need not expend much effort in concluding that Plaintiffs similarly lack standing to assert their final Section 1557 claim. To spell out the precise dispute: Section 1557
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states that “[t]he enforcement mechanisms provided for and available under such title VI, title IX, section [504 of the Rehabilitation Act], or such Age Discrimination Act shall apply for purposes of violations of this subsection.” 42 U.S.C. § 18116(a). The 2020 Rule requires would-be plaintiffs to employ the particular enforcement mechanism and accompanying legal standard available under each statute, depending on the precise ground of discrimination asserted. See 85 Fed. Reg. at 37,202. In other words, a litigant bringing a claim based on race discrimination in violation of Title VI cannot employ the enforcement mechanism available for sex discrimination under Title IX. Plaintiffs, on the other hand, contend that Section 1557 created a new, health-specific, anti-discrimination cause of action subject to a singular standard. By their lights, Section 1557 allows a plaintiff to invoke the enforcement mechanism of any of the incorporated statutes for a health-discrimination claim, regardless of the particular type of discrimination alleged. See Pl. Mot. at 27.
Plaintiffs’ theory of standing for this challenge is murky, to say the least. Nowhere do they suggest that HHS’s interpretation of the standard for Section 1557 claims causes LGBTQ individuals to fear discrimination, or even that it exposes them to a heightened risk of discrimination. Nor do Plaintiffs contend that the regulatory action causes them organizational injury. Instead, they briefly reference excerpts from declarations emphasizing the challenges posed by the possibility of intersectional discrimination — that is, discrimination based on multiple protected grounds. According to one declarant, “Rather than being able to assert claims under a single legal standard, intersectional discrimination claims will be subject to different standards, enforcement mechanisms, and remedies based on which characteristics are at issue.” Salcedo Decl., ¶ 37. That result, in turn, will “have a particularly harmful effect” on claimants “because discrimination based on sexual orientation, gender identity, transgender status, national
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origin, disability, and LEP status does not occur in an identity vacuum.” Inurritegui-Lint Decl., ¶ 52; see also ECF No. 37, Exh. 1 (AARP Amicus Brief) at 10–12 (describing intersectional discrimination experienced by LGBTQ older adults).
Much like before, however, Plaintiffs have not established that any future discrimination — especially discrimination causing an individual to actually sue under Section 1557 — would be sufficiently “imminent” to qualify as a valid injury-in-fact. Summers, 555 U.S. at 493. Even if it were, Plaintiffs could not plausibly allege that such discrimination would be “fairly traceable” to HHS’s interpretation of Section 1557’s legal standard in the 2020 Rule. Id.
The proper context for quarrels surrounding the legal standard for Section 1557 claims would be an actual lawsuit bringing such a claim. There, a plaintiff could argue that Section 1557 permits her to assert various discrimination counts under a single legal standard, and that HHS’s interpretation to the contrary is inconsistent with the statutory text. Indeed, numerous courts entertaining claims of discrimination under Section 1557 have grappled with these precise arguments. See, e.g., Briscoe v. Health Care Serv. Corp., 281 F. Supp. 3d 725, 737–38 (N.D. Ill. 2017); York v. Wellmark, Inc., No. 16-627, 2017 WL 11261026, at *16–18 (S.D. Iowa 2017); Galuten ex rel. Galuten v. Williamson Med. Ctr., No. 18-519, 2019 WL 1546940, at *5 (M.D. Tenn. 2019). The posture of this case does not permit this Court to join them.
For these reasons, Plaintiffs cannot establish a “substantial likelihood of standing” to challenge HHS’s interpretation of Section 1557’s legal standard. Electronic Privacy Info. Ctr., 878 F.3d at 377.
B. Third-Party Standing While it now emerges from the depths of its organizational-standing dive, having found standing on six of the nine claims analyzed, the Court’s jurisdictional work is not complete. It
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must now consider whether Plaintiffs can assert the rights of third-party LGBTQ patients to bring three remaining constitutional counts.
Plaintiffs contend that the 2020 Rule runs afoul of the Fifth Amendment’s guarantees of equal protection and substantive due process, as well as the First Amendment’s promise of free speech. Specifically, they claim that the regulation 1) “discriminates on the basis of sex, transgender status, and sexual orientation,” in violation of equal protection; 2) impedes “the right to live openly and express oneself consistent with one’s sexual orientation or gender identity,” in violation of substantive due process; and 3) “impermissibly chills LGBTQ patients . . . from being open about their gender identity, transgender status, or sexual orientation,” in violation of the First Amendment. See Pl. Mot. at 28, 31. These claims do not invoke organizational injuries, but rather are clearly premised on the rights of individuals — that is, LGBTQ people.
While the organizational Plaintiffs never specify the precise basis for their standing to assert these constitutional counts, several purport to bring claims on behalf of their patients or members. See, e.g., Compl., ¶ 32 (health-provider Plaintiffs assert claims “on behalf of their patients and recipients of services”); Pl. Reply at 7–8 (arguing that health-provider Plaintiffs satisfy criteria to bring claims on behalf of their patients). The Court, accordingly, will examine whether they may do so.
A litigant “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). That principle, however, is far from “absolute,” as courts have recognized that there are circumstances in which it is “necessary to grant a third party standing to assert the rights of another.” Kowalski v. Tesmer, 543 U.S. 125, 129–30 (2004). A plaintiff may bring suit on behalf of a third party upon satisfying three criteria: 1) the plaintiff “must have suffered an
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‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute”; 2) the plaintiff “must have a close relation to the third party”; and 3) “there must exist some hindrance to the third party’s ability to protect his or her own interests.” Powers v. Ohio, 499 U.S. 400, 411 (1991) (quoting Singleton v. Wulff, 428 U.S. 106, 112–16 (1976)). Because Plaintiffs satisfy these criteria with respect to the third parties in question — i.e., their LGBTQ patients — they may assert equal-protection, substantive-due-process, and free-speech claims on their behalf.
The first prong is “easily satisfied.” Lepelletier v. FDIC, 164 F.3d 37, 43 (D.C. Cir. 1999). As discussed above, the health-provider Plaintiffs have suffered an injury in fact — financial and operational harm — thus giving them a “‘sufficiently concrete interest’ in the outcome of the issue in dispute.” Powers, 499 U.S. at 411 (quoting Singleton, 428 U.S. at 112).
The second criterion also goes Plaintiffs’ way. The requirement that a plaintiff have a “close relation” to the relevant third party, Powers, 499 U.S. at 411, is “to ensure that the plaintiff will act as an effective advocate for the third party.” Lepelletier, 164 F.3d at 43 (citation omitted). For the requirement to be fulfilled, “the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter.” Singleton, 428 U.S. at 115; see also Lepelletier, 164 F.3d at 45 (remarking that thirdparty standing “does not require a perfect match” between interests).
Here, “there can be no doubt” that the health-provider Plaintiffs will be “motivated, effective advocate[s]” for their LGBTQ patients. Powers, 499 U.S. at 414. Whitman-Walker, for instance, “has a special mission to serve the LGBTQ community” and provides a range of community-based health and wellness services. See Compl., ¶ 37; Shafi Decl., ¶ 3. Nearly 45% of its patients identified as lesbian, gay, bisexual, or otherwise non-heterosexual, and more than
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10% identified as transgender or gender nonconforming. See Compl., ¶ 37. Whitman-Walker even has an in-house legal-services department that exists to help LGBTQ patients combat discriminatory barriers to accessing quality health care. See Shafi Decl., ¶ 16. Just as the elimination of the 2016 Rule’s explicit prohibition on discrimination based on sex stereotyping and gender identity and incorporation of Title IX’s religious exemption will likely cause Whitman-Walker financial and operational injury, those same provisions instill in many LGBTQ patients a heightened fear of discrimination that will lead to worsened health outcomes. It seems clear that Whitman-Walker shares a “common interest” with LGBTQ patients, Powers, 499 U.S. at 413, such that the organization will serve as “an effective advocate” for them. Lepelletier, 164 F.3d at 43 (citation omitted).
Defendants do not contest any of the above. Instead, they briefly contend that Plaintiffs do not have a “close relation” with their potential future patients “who may experience alleged discrimination as a result of visiting other healthcare providers.” Def. Surreply at 10. There are multiple problems with this argument. First, some of the individuals on whose behalf the healthprovider Plaintiffs assert claims appear to be current patients. See Compl., ¶ 32; Pl. Reply at 7. For instance, those Plaintiffs maintain that the 2020 Rule undermines their ability to treat current patients by contributing to considerable financial and operational challenges. See Shafi Decl., ¶¶ 34–36; Carpenter Decl., ¶¶ 12, 16; Cummings Decl., ¶ 33. Defendants do not suggest the absence of a “close relation” in these circumstances.
In any event, Defendants are wrong to suggest that the health-provider Plaintiffs cannot assert the rights of LGBTQ patients they might treat in the future. The Supreme Court recently observed that “[w]e have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations.” June Med. Servs. LLC v. Russo,
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140 S. Ct. 2103, 2118 (2020) (plurality opinion) (emphasis added) (citing cases); see also id. at 2139 n.4 (Roberts, C.J., concurring in the judgment) (agreeing with plurality’s third-partystanding analysis). There is no reason to think it should be any different in the case of LGBTQ health-care providers. To be sure, and as Defendants point out, Kowalski v. Tesmer declined to allow attorneys to assert the rights of future, “as yet unascertained” criminal defendants. See 543 U.S. at 130–31; Def. Surreply at 10. In that situation, however, the class of potential third parties could have been literally any person. By contrast, the health-provider Plaintiffs’ present bid involves a far more limited universe of third parties — LGBTQ individuals seeking health care. And that universe bears notable resemblance to the similarly confined pool of women seeking abortions, where physicians can invoke the rights of unknown potential patients. Plaintiffs, accordingly, satisfy the second prong of the Powers test.
Finally, Plaintiffs make it a trifecta by successfully showing that there exists “some hindrance” to third-party patients’ “ability to protect [their] own interests.” Powers, 499 U.S. at 411. “There is no denying that transgender individuals face discrimination, harassment, and violence because of their gender identity.” Whitaker v. Kenosha Unified Sch. Dist., 858 F.3d 1034, 1051 (7th Cir. 2017). Numerous courts have recognized that disclosure of transgender status may expose individuals to “a substantial risk of stigma, discrimination, intimidation, violence, and danger.” Arroyo Gonzalez v. Rossello Nevares, 305 F. Supp. 3d 327, 333 (D.P.R. 2018); see also, e.g., F.V. v. Barron, 286 F. Supp. 3d 1131, 1137–38 (D. Id. 2018); Ray v. Director, No. 18-272, 2018 WL 8804858, at *1 (S.D. Ohio Apr. 5, 2018). Plaintiffs have alleged the same here. See Bolan Decl., ¶ 7 (“Many if not most of the individuals in our very diverse patient population face considerable stigma and discrimination.”); Inurritegui-Lint Decl., ¶ 28; Salcedo Decl., ¶ 31; Shanker Decl., ¶ 21. Indeed, this situation closely resembles Singleton,
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where the Supreme Court allowed physicians to assert the rights of women seeking abortions after noting that they “may be chilled from such assertion by a desire to protect the very privacy of [their] decision[s] from the publicity of a court suit.” 428 U.S. at 117–18.
All Defendants say in response is that the fact that LGBTQ patients themselves sued as plaintiffs to challenge the 2020 Rule in another jurisdiction “undercuts plaintiffs’ claim that their own patients are prevented from mounting challenges of their own.” Def. Surreply at 10 (citing Walker v. Azar, No. 20-2834 (E.D.N.Y. 2020)). Yet the final Powers prong “does not require an absolute bar from suit.” Pa. Psychiatric Soc. v. Green Spring Health Servs., Inc., 280 F.3d 278, 290 (3d Cir. 2002). It is enough that “patients’ fear of stigmatization . . . operates as a powerful deterrent to bringing suit.” Id.; see also id. at 290 n.14 (explaining that “cases do not demand an absolute impossibility of suit in order to fall within the [impediment] exception”) (alteration in original) (quoting 15 James Wm. Moore et al., Moore’s Federal Practice § 101.51 [3][c]); Singleton, 428 U.S. at 117–18 (acknowledging that suit could have been brought under pseudonym, but nevertheless finding third-party standing when woman’s desire to protect privacy could discourage her from suing). Plaintiffs have made that showing here.
The health-provider Plaintiffs, accordingly, have standing to assert the equal-protection, substantive-due-process, and free-speech rights of third-party LGBTQ patients. IV. Analysis
With its protracted jurisdictional prelude finally concluded, the Court may now finally turn to the four preliminary-injunction factors. It separately looks at likelihood of success on the merits and irreparable harm before jointly considering the balance of the equities and the public interest.
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A. Likelihood of Success on the Merits As to the first prong, the Court finds that Plaintiffs have shown their likelihood of success with respect to their claims that HHS: 1) improperly eliminated explicit prohibitions within the 2016 Rule’s definition of sex discrimination; and 2) improperly incorporated Title IX’s religious exemption into Section 1557. They do not fare as well on the remaining counts for which they have demonstrated standing — namely, their claims that HHS: 3) erroneously eliminated the 2016 Rule’s prohibition on categorical coverage exclusions for gender-affirming care; 4) improperly repealed the 2016 Rule’s notice requirements; and 5) violated Section 1554. In addition, as a result of the Court’s disposition of these claims, Plaintiffs’ four constitutional counts entitle them to no further relief. The Court separately analyzes all of these questions.
1. Elimination of 2016 Rule’s Definition of Sex Discrimination As previously recounted, the 2016 Rule defined discrimination “[o]n the basis of . . . sex” to include “discrimination on the basis of . . . sex stereotyping, and gender identity.” 81 Fed. Reg. at 31,467 (formerly codified at 45 C.F.R. § 92.4). The 2020 Rule, however, repealed this definition entirely, and none of its provisions contains any reference whatsoever to “sex stereotyping” or “gender identity.” Plaintiffs attack this policy change as arbitrary and capricious, largely in light of the Supreme Court’s intervening decision in Bostock. The Court concurs. When an agency changes or reverses a prior policy, it must first “display awareness that it is changing position.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). It may not, for example, “depart from a prior policy sub silentio.” Id. The agency also “must show that there are good reasons for the new policy,” id., and must “supply a reasoned analysis for the change.” Ark Initiative v. Tidwell, 816 F.3d 119, 127 (D.C. Cir. 2016) (quoting Motor Vehicle
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Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 42 (1983)); see also State Farm, 463 U.S. at 43 (“[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’”) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). Agency action is arbitrary and capricious if the agency “entirely failed to consider an important aspect of the problem.” Id.
This framework plainly applies to the present case. While the 2016 Rule made clear that sex discrimination includes discrimination based on sex stereotyping and gender identity, the 2020 Rule contains no such provision. As Defendants seem to concede, this regulatory reversal represents a change in prior policy under Fox. See Def. Opp. at 18 (acknowledging that HHS’s “position had changed”) (citing Fox, 556 U.S. at 514).
Turning, then, to the analysis under Fox, it is undisputed that HHS has discharged its initial obligation to “display awareness that it is changing position” when it issued the final rule. Fox, 556 U.S. at 515. The agency acknowledged that the 2016 Rule included sex stereotyping and gender identity within its prohibition on sex discrimination, see 85 Fed. Reg. 37,236, but nevertheless explained that the 2020 Rule “eliminates” that provision and omits any such definitional language. Id. at 37,161–62; see also id. at 37,178 (acknowledging that the 2020 Rule “repeals the 2016 Rule’s definition of ‘on the basis of sex’”).
The agency, however, has not fulfilled its obligation to provide either “good reasons,” Fox, 556 U.S. at 515, or a “reasoned analysis” supporting its policy change. State Farm, 463 U.S. at 42. Before the Court explains why, however, it must refer back to its earlier standing holding. Attentive readers will recall that the Court previously determined that Plaintiffs lack standing to challenge HHS’s repeal of the 2016 Rule’s prohibition on gender-identity
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discrimination, given the Texas decision vacating that language. That conclusion, however, does not mean that the prohibition on gender-identity discrimination is entirely irrelevant to the present merits discussion. On the contrary, the Court’s assessment of HHS’s reasoning for its repeal of the 2016 Rule’s sex-stereotyping provision necessarily includes some consideration of the gender-identity provision. That is so for a simple and intuitive reason: the two concepts share substantial overlap.
Discrimination based on transgender status — i.e., gender identity — often cannot be meaningfully separated from discrimination based on sex stereotyping because the belief that an individual should identify with only their birth-assigned sex is such a sex-based stereotype. See, e.g., Adams ex rel. Kasper v. School Bd. of St. John’s Cty., No. 18-13592, 2020 WL 4561817, at *9 (11th Cir. Aug. 7, 2020) (“Because [plaintiff] was assigned a female sex at birth but identifies consistently and persistently as a boy and presents as masculine, he defies the stereotype that one’s gender identity and expression should align with one’s birth sex.”); Whitaker, 858 F.3d at 1048 (“By definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.”); Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (“A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”). Indeed, HHS itself admits the possibility that the 2016 Rule deployed the term “sex stereotyping . . . to encompass gender identity.” 85 Fed. Reg. at 37,236. Nor do Defendants ever dispute Plaintiffs’ contention that “the flaws that permeated the rulemaking process with respect to the elimination of ‘gender identity’ apply equally to the elimination of ‘sex stereotyping.’” ECF No. 47 (Plaintiffs’ Clarification Regarding Response) at 1; see also Hrg. Tr. at 21–22 (similar). For these reasons, even though the Court may only grant Plaintiffs relief with respect to HHS’s elimination of the prohibition on discrimination based on
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sex stereotyping, the agency’s reasoning regarding the gender-identity provision necessarily informs its treatment of the sex-stereotyping provision.
HHS’s shortcomings begin in the preamble to the 2020 Rule. “[T]he preamble to a regulation is evidence of an agency’s contemporaneous understanding of its proposed rules.” It may serve, accordingly, “as a source of evidence concerning contemporaneous agency intent.” Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 53 (D.C. Cir. 1999); see also Harman Min. Co. v. Director, 678 F.3d 305, 315–16 (4th Cir. 2012) (explaining that regulatory preamble may serve “as a source of explanation as to [agency’s] rationale in amending . . . regulations”); CHW West Bay v. Thompson, 246 F.3d 1218, 1226–27, 1230 (9th Cir. 2001) (looking to regulation’s preamble as evidence that agency action was arbitrary and capricious). It follows that the Court may consider HHS’s statements in the preamble to the 2020 Rule as part of the agency’s explanation underlying its action, which “will enable the court to evaluate the agency’s rationale at the time of decision.” Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 654 (1990). Indeed, Defendants themselves admit that “a Rule’s preamble may help determine whether an Agency’s decision to adopt a particular approach was supported by adequate reasoning.” Def. Opp. at 16. Even if the preamble “lacks the force and effect of law,” Saint Francis Med. Ctr. v. Azar, 894 F.3d 290, 297 (D.C. Cir. 2018), Defendants thus do not appear to dispute that the Court may consider HHS’s statements therein when assessing whether the explanation for its action is satisfactory.
Here, the 2020 Rule’s preamble brings into stark relief HHS’s position that discrimination based on transgender status does not qualify as sex discrimination under Section 1557. The agency repeatedly explained that “the term ‘on the basis of . . . sex’ in Section 1557 does not encompass discrimination on the basis of gender identity.” 85 Fed. Reg. at 37,191; see
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also, e.g., id. at 37,183 (disagreeing with commenters “who contend that Section 1557 or Title IX encompass gender identity discrimination within their prohibition on sex discrimination”); id. at 37,168, 37,179–80, 37,194 (similar). It is evident that these legal conclusions drove the agency’s decision to eliminate the 2016 Rule’s inclusion of gender identity and sex stereotyping in its definition of sex discrimination. As HHS insisted in issuing the 2020 Rule, that prior definition “exceeded the scope of the authority delegated by Congress in Section 1557,” id. at 37,161, imposing legal requirements “that cannot be justified by the text of Title IX, and in fact are in conflict with express exemptions in Title IX.” Id. at 37,162; see also Walker, 2020 WL 4749859, at *9 (“It is clear from the preamble . . . that a central reason for HHS’s action was a fundamental disagreement as to whether Title IX — and, by implication, § 1557 — prohibited discrimination based on gender identity and sex stereotyping.”). By eliminating the explicit prohibitions, HHS explained, the 2020 Rule “bring[s] the provisions of the Code of Federal Regulations into compliance with the underlying statutes.” 85 Fed. Reg. at 37,162.
Four days before HHS published the final rule, however, the Supreme Court issued a decision that — at the very least — called the validity of HHS’s legal determinations into serious question. In Bostock, it held that under Title VII, discrimination based on transgender status or sexual orientation “necessarily entails discrimination based on sex.” 140 S. Ct. at 1747. The Court reached that conclusion through a “straightforward application” of the statutory text, which prohibits employers from discriminating against any individual “because of . . . sex.” Id. at 1743; 42 U.S.C. § 2000e–2(a)(1). As the Court ultimately found, “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Bostock, 140 S. Ct. at 1741.
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These principles plainly have implications for Title IX’s prohibition on sex discrimination and, by extension, Section 1557. As previously recounted, Title IX bars discrimination “on the basis of sex.” 20 U.S.C. § 1681(a). The reasoning of Bostock, at a minimum, suggests the possibility that this provision encompasses discrimination based on transgender status. There is no apparent reason why the Court’s conclusion — that it is “impossible” to discriminate based on transgender status without discriminating based on sex, see 140 S. Ct. at 1741 — would remain cabined to Title VII and not extend to other statutes prohibiting sex discrimination. Put another way, just as “sex plays an unmistakable and impermissible role” in any decision to treat otherwise identical individuals differently simply because they possess different gender identities under Title VII, the same would appear to be true under Title IX. See id. at 1741–42. Indeed, two courts of appeals have already so held. See Adams, 2020 WL 4561817, at *11–12 (applying Bostock and concluding that “Title IX, like Title VII, prohibits discrimination against a person because he is transgender, because this constitutes discrimination based on sex”); Grimm v. Gloucester Cty. Sch. Bd., No. 19-1952, 2020 WL 5034430, at *21, 24 n.18 (4th Cir. Aug. 26, 2020) (similar). There exists a fairly strong case, therefore, that application of Bostock’s textual analysis to Title IX (by way of Section 1557’s incorporation of that statute) would yield the conclusion that the statute forbids discrimination based on gender identity and sex stereotyping, insofar as such stereotypes are based on the belief that an individual should identify with only their birth-assigned sex. Cf. Bostock, 140 S. Ct. at 1778–81 & n.57 (Alito, J., dissenting) (discussing potential “consequences” of Court’s Title VII holding for statutes such as Title IX and Section 1557).
Notwithstanding Bostock’s clear import for the meaning of discrimination based on sex under Title IX, HHS plowed ahead with the 2020 Rule implementing that precise statutory
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phrase without even pausing to consider the Court’s decision. The Department’s 89-page final rule contains no discussion whatsoever of Bostock’s reasoning or how the case might apply to Title IX. Indeed, HHS did not even acknowledge Bostock’s holding. The agency instead clung to its position that “Title IX does not encompass discrimination on the basis of sexual orientation or gender identity,” 85 Fed. Reg. at 37,168, and it repeatedly invoked that conclusion as justification for its elimination of the 2016 Rule’s provision to the contrary. Id. at 37,161–62. HHS so acted despite itself admitting that “a holding by the U.S. Supreme Court on the meaning of ‘on the basis of sex’ under Title VII will likely have ramifications for the definition of ‘on the basis of sex’ under Title IX.” Id. at 37,168 (emphasis added).
“The APA requires reasoning, deliberation, and process.” California v. Bernhardt, No. 18-5712, 2020 WL 4001480, at *16 (N.D. Cal. July 15, 2020). HHS should have at least considered the import of Bostock for the reasons underlying its regulatory action — namely, the agency’s belief that Title IX does not prohibit discrimination based on transgender status — before it eliminated regulatory language providing for precisely what Bostock seemed to guarantee. The agency’s failure to take that obvious deliberative step prevents the Court from finding that its policy change was supported by “reasoned analysis” and compels the conclusion that its action was arbitrary and capricious. State Farm, 463 U.S. at 42. In so holding, the Court aligns itself with the Eastern District of New York’s recent resolution of a similar challenge to the 2020 Rule. See Walker, 2020 WL 4749859, at *9–10 (finding repeal of 2016 Rule’s definition of sex discrimination arbitrary and capricious in light of agency’s failure to consider implications of Bostock).
Defendants offer several arguments in response, but none is persuasive. They begin by positing that the district court’s decision in Franciscan Alliance “compelled” HHS to “not
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includ[e] an expanded definition of ‘on the basis of sex’” in the 2020 Rule because that case “vacated the language contained in the previous rule that plaintiffs now advocate for.” Def. Opp. at 16. There are multiple problems with this argument. First, Defendants’ premise is mistaken. As previously explained, Franciscan Alliance only vacated the 2016 Rule “insofar as the Rule defines ‘On the basis of sex’ to include gender identity” and one other provision not relevant here. Franciscan Alliance Order at ECF p. 3. The court made clear that the “remainder of 45 C.F.R. § 92 remains in effect.” Id. Franciscan Alliance, accordingly, did not vacate the 2016 Rule’s definitional provision relating to sex stereotyping; indeed, the decision never even mentioned it. See 414 F. Supp. 3d 928. Defendants thus cannot contend the decision was “reason enough for HHS to release the 2020 Rule in its current form.” Def. Opp. at 17.
In addition, contrary to Defendants’ assertion, nothing in Franciscan Alliance “compelled” HHS in any sense of the word with respect to the present rulemaking. See Def. Opp. at 16. Franciscan Alliance simply vacated a portion of the 2016 Rule’s definition of discrimination on the basis of sex. It did not order the agency to do anything in particular when promulgating a future rule implementing Section 1557, or even to conduct another rulemaking at all. In fact, nothing in Franciscan Alliance prevented HHS from re-promulgating the very provisions that the court vacated. To be sure, any such regulation may have suffered the same fate as the 2016 Rule in subsequent litigation, but the point is that the order in Franciscan Alliance did not itself preclude HHS from following such a course. Defendants therefore cannot suggest that the decision effectively bound the agency’s hands and “compelled” it to proceed as it did. See Def. Opp. at 16.
Even worse, HHS failed entirely to consider the implications of Bostock for the agency’s reliance on Franciscan Alliance — to wit, the possibility that the Supreme Court thoroughly
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undermined that earlier decision’s reasoning. Franciscan Alliance’s holding that Title IX’s prohibition on sex discrimination did not include gender-identity discrimination was premised entirely on the court’s belief that the statutory term “sex” “refer[red] to the biological differences between males and females.” 227 F. Supp. 3d at 688. HHS, notably, drew from the Government’s losing litigating position in Bostock to make this same argument. See 85 Fed. Reg. at 37,178–79. Bostock, however, expressly assumed that “sex” “refer[red] only to biological distinctions between male and female.” 140 S. Ct. at 1739. Whether or not the term included some norms relating to gender identity was immaterial, the Court explained, because it is nevertheless “impossible” to discriminate based on transgender status without discriminating based on sex. Id. at 1741. To be sure, contrary to Plaintiffs’ assertion, Bostock did not render Franciscan Alliance’s vacatur “a legal nullity.” Pl. Reply at 3. That disposition remains on the books. But HHS could not continue to invoke it as justification for an independent regulatory action without at least considering whether Bostock undermined the former decision’s very basis.
Relatedly, Defendants contend that “HHS acted reasonably in finalizing its rule without waiting for [Bostock]” because that decision “concerned a separate statute” — i.e., Title VII. See Def. Opp. at 17. As HHS itself admitted, however, “Title VII case law has often informed Title IX case law with respect to the meaning of discrimination ‘on the basis of sex,’” and a decision in Bostock “will likely have ramifications” for Title IX. See 85 Fed. Reg. at 37,168. That much has already become clear, as evidenced by two courts of appeals’ recent applications of Bostock to conclude that Title IX likewise prohibits discrimination based on transgender status. Adams, 2020 WL 4561817, at *11–12; Grimm, 2020 WL 5034430, at *21, 24 n.18. Indeed, even apart from Bostock, several courts have independently concluded that Title IX
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prohibits discrimination based on sex stereotyping or gender identity. See, e.g., Whitaker, 858 F.3d at 1049; Dodds v. United States Dep’t of Educ., 845 F.3d 217, 221 (6th Cir. 2016). HHS asserted vaguely that “the binary biological character of sex” may “take[] on special importance in the health context,” leading to “implications” that a Title VII ruling “might not . . . fully address[].” 85 Fed. Reg. at 37,168; see also id. at 37,185. Even if one grants HHS’s premise, the mere possibility that Bostock may apply slightly differently in the health-care context does not give the agency license to refuse to consider the decision entirely.
To be clear, the Court does not adopt Plaintiffs’ contention that Bostock “conclusively rejects” HHS’s position that Title IX (and Section 1557) do not prohibit discrimination based on transgender status. See Pl. Mot. at 14. It need not go so far, and it does not so hold today. It is sufficient for the Court to determine that Bostock, at the very least, has significant implications for the meaning of Title IX’s prohibition on sex discrimination, and that it was arbitrary and capricious for HHS to eliminate the 2016 Rule’s explication of that prohibition without even acknowledging — let alone considering — the Supreme Court’s reasoning or holding. See Walker, 2020 WL 4749859, at *9 (“Whether or not it is dispositive of [the scope of sex discrimination] with respect to Title IX and § 1557, Bostock is at least ‘an important aspect of the problem.’”) (quoting State Farm, 463 U.S. at 43).
Finally, Defendants insist that the 2020 Rule cannot be arbitrary and capricious because it simply regurgitates the plain, unobjectionable text of Section 1557. Specifically, they argue that HHS “declin[ed] to include a definition of ‘on the basis of sex’ in the 2020 Rule,” and “Plaintiffs cite no authority that would require a regulation to expand upon statutory text.” Def. Opp. at 15; see also 85 Fed. Reg. at 37,244 (to be codified at 45 C.F.R. § 92.2). This misconstrues Plaintiffs’ argument. HHS did not adopt the 2020 Rule in a vacuum devoid of context or history. As
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previously explained, because the agency changed its position and opted to repeal a prior regulatory provision, it needed to provide a “reasoned analysis for the change” and a “satisfactory explanation for its action.” State Farm, 463 U.S. at 42–43; see also Fox, 556 U.S. at 515; Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016). Regardless of the ultimate regulation the agency adopts, the Court must assess the reasonableness of the agency’s explanation for why it made the change. And here, HHS’s explanation is plainly insufficient, not least because it neglected to consider in any fashion an intervening Supreme Court decision that bore direct and undisputed consequences not only for the regulatory provision at issue, but also for the validity and coherence of the reasons HHS provided for its action. The agency cannot escape that conclusion by simply asserting that “the elimination of a regulatory definition of [a statutory] term would not preclude application of the [Supreme] Court’s construction” of that term’s meaning. See 85 Fed. Reg. at 37,168. When assessing the procedural validity of HHS’s action, this Court remains obligated to “examin[e] the reasons” underlying HHS’s action. Judulang v. Holder, 565 U.S. 42, 53 (2011).
The Court “do[es] not hold that the agency decision here was substantively invalid.” Dep’t of Commerce, 139 S. Ct. at 2576. It “address[es] only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” Dep’t of Homeland Security v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1916 (2020). Nothing prevents HHS from returning to the drawing board and attempting again to issue a regulation that parrots Section 1557’s prohibition on sex discrimination. To be successful, however, any such effort must exhibit what was sorely lacking here — namely, compliance with the APA’s procedural mandates.
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2. Incorporation of Title IX’s Religious Exemption Next up is the 2020 Rule’s incorporation of Title IX’s religious exemption. Plaintiffs challenge that regulatory action as arbitrary and capricious, largely contending that HHS failed to sufficiently consider the implications of such incorporation for access to health care. They are correct. As the reader well knows by this point, Section 1557 incorporates the particular grounds of discrimination contained in four other civil-rights statutes. Once again relevant here is Title IX. By referencing the “ground” of discrimination prohibited by Title IX, Section 1557 plainly barred discrimination on the basis of sex. See 20 U.S.C. § 1681(a); 42 U.S.C. § 18116(a). It did not, however, explicitly incorporate Title IX’s exemption of certain educational operations of entities controlled by religious organizations from its nondiscrimination mandate. See 20 U.S.C. §§ 1681(a), 1687. The 2016 Rule, accordingly, “decline[d] to . . . import Title IX’s blanket religious exemption into Section 1557.” 81 Fed. Reg. at 31,380. HHS reached that conclusion both because “Section 1557 itself contains no religious exemption” and because it found that a categorical exemption would be inappropriate in the broader health-care context. Id. The 2020 Rule, however, reversed course and explicitly incorporated Title IX’s religious exemption into Section 1557’s nondiscrimination scheme. See 45 C.F.R. § 92.6(b) (incorporating “exemptions” contained in various statutes, including Title IX). As imported into the current regulation, such exemption could be read so as to enable any educational operation of an entity controlled by a religious organization engaged in the provision of health care to evade the statute’s prohibition on sex discrimination, if application of such prohibition would be inconsistent with the organization’s religious tenets. See 20 U.S.C. §§ 1681(a), 1687; 85 Fed. Reg. at 37,207–08. It is this incorporation that Plaintiffs challenge as arbitrary and capricious.
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The APA demands that an agency considering regulatory action “examine all relevant factors and record evidence.” Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017). At a minimum, the agency “cannot entirely fail[] to consider an important aspect of the problem.” State Farm, 463 U.S. at 43. Rather, it must “adequately analyze . . . the consequences” of its actions. Am. Wild Horse, 873 F.3d at 932. In doing so, “[s]tating that a factor was considered . . . is not a substitute for considering it.” Getty v. Fed. Savs. & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986). The agency must instead provide more than “conclusory statements” to prove that it “consider[ed] the [relevant] priorities.” Id. at 1057. For instance, the D.C. Circuit has held that concerns raised in public comments are sufficient to alert an agency to “an important aspect of the problem,” which the agency must consider lest its action be deemed arbitrary and capricious. Gresham v. Azar, 950 F.3d 93, 103 (D.C. Cir. 2020).
Several of the 2016 Rule’s primary justifications for declining to incorporate Title IX’s religious exemption into Section 1557 focused on the potential negative implications of such an exemption for access to care and ultimate health outcomes. For instance, HHS referenced statements from the “overwhelming majority of individual commenters” and “[m]ost” commenting organizations that a religious exemption “would potentially allow for discrimination on the bases prohibited by Section 1557 or for the denial of health services to women.” 81 Fed. Reg. at 31,379. Such concerns, HHS concluded, counseled against a “blanket religious exemption,” which “could result in a denial or delay in the provision of health care” and could “discourag[e] individuals from seeking necessary care,” thereby generating “life threatening results.” Id. at 31,380. The agency also found that there were “significant differences between the educational and health care contexts that warrant different approaches.” Id. While families selecting religious educational institutions “typically do so as a matter of choice,” individuals in
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the health-care context “may have limited or no choice of providers, particularly in rural areas or where hospitals have merged with or are run by religious institutions,” or in “emergency circumstances.” Id.
The 2020 Rule, however, “said almost nothing” about these important issues. Encino Motorcars, 136 S. Ct. at 2127. Nowhere did HHS grapple with the policy grounds against importing a religious exemption into Section 1557. More fundamentally, nowhere did it consider the “consequences” of such an exemption for access to care, Am. Wild Horse, 873 F.3d at 932, despite the fact that the “ACA’s intended purpose [is] to broaden access to health care.” Morris v. Cal. Physicians’ Serv., 918 F.3d 1011, 1014 (9th Cir. 2019). To the extent the agency even gestured at these issues, its discussion was patently insufficient to discharge its duty to provide a “reasoned explanation” for its change in policy. Encino Motorcars, 136 S. Ct. at 2126.
For instance, at one point HHS asserted that the incorporation of Title IX’s religious exemption will ensure patients receive “high-quality and conscientious care.” 85 Fed. Reg. at 37,206. Yet that “conclusory statement[]” was delivered entirely without elaboration or support. Getty, 805 F.2d at 1057; see Gresham, 950 F.3d at 103 (“Nodding to concerns raised by commenters only to dismiss them in a conclusory manner is not a hallmark of reasoned decisionmaking.”). Indeed, one would think that the more likely outcome would be patients’ being denied care — a possibility HHS never acknowledged. Similarly, it did not even resist comments stating that, more generally, “religious exemptions would make it harder to find healthcare in low provider areas.” 85 Fed. Reg. at 37,218.
Defendants briefly insist that HHS “concluded” that a “religious exemption[] is unlikely to lead to widespread diminishing of healthcare options for individuals.” Def. Op. at 31. But the agency did no such thing. Indeed, it took no position whatsoever on the actual effects that a
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religious exemption would have, a reality confirmed by the very preamble excerpt Defendants cite. There, HHS offered a vague summary of comments from select providers purportedly seeking exemptions from “providing certain treatments,” not necessarily “from treating certain patients”; comments from “[s]ome” hospitals that prohibit discrimination on the basis of gender identity and sexual orientation; and comments from “[s]ome” religious providers that claim to “have never refused to care for a patient on the grounds of their identity as an LGBT individual.” 85 Fed. Reg. at 37,206. The Court has no reason to dispute the truth of any of these comments. HHS, however, cited them not as evidence that a religious exemption will preserve health-care opportunities for individuals, but instead simply for the entirely unproductive proposition that “members of the public hold different opinions concerning conscience and religious freedom laws.” Id. At no point did the agency even assert that a religious exemption would preserve meaningful access to health care for vulnerable populations — let alone provide evidence supporting any such conclusion.
Attempting to skirt this deficiency, Defendants contend that HHS was neither required to supply a more “detailed” justification for its policy reversal nor to “respond specifically” to the 2016 Rule’s discussion of the serious risks posed by a categorical religious exemption for the prompt and nondiscriminatory provision of health care. See Def Opp. at 31 (quoting Nat’l Ass’n of Home Builders v. EPA, 682 F.3d 1032, 1038 (D.C. Cir. 2011)); Fox, 556 U.S. at 502 (requiring “a more detailed justification” for policy reversal when “new policy rests upon factual findings that contradict those which underlay [agency’s] prior policy”). Even assuming Defendants are correct that the 2016 Rule’s rejection of a religious exemption did not rest upon “factual findings” — a questionable premise, given HHS’s reliance on the documented potential for denials and delays in health-care provision as a result of the exemption — their objection
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misses the point. The Court does not here require HHS to provide a more “detailed justification than what would suffice for a new policy created on a blank slate.” Fox, 556 U.S. at 515. It merely requires HHS to “consider an important aspect of the problem” — namely, the potential negative consequences that importing a blanket religious exemption into Section 1557 might have for access to health care. State Farm, 463 U.S. at 43. The agency’s dereliction of that fundamental procedural obligation flunks the APA’s standards for reasoned decisionmaking. See Gresham, 950 F.3d at 103 (holding agency action arbitrary and capricious for failing to adequately consider potential for loss in health-care coverage as result of action); Am. Wild Horse, 873 F.3d at 932 (faulting agency for “brush[ing] aside critical facts” and not “adequately analyz[ing]” consequences of decision).
To be sure, Defendants identify other factors that HHS considered in deciding to import Title IX’s religious exemption into Section 1557. In particular, they point to the agency’s consideration of 1) the fact that Title IX has been interpreted to apply outside of core educational institutions; 2) the Religious Freedom Restoration Act; 3) Franciscan Alliance’s invalidation of the 2016 Rule’s definition of sex discrimination in part because of HHS’s not incorporating Title IX’s religious exemption; and 4) the need to “protect . . . providers’ medical judgment and their consciences.” Def. Opp. at 29–31; 85 Fed. Reg. at 37,206–08. The Court need not address the legitimacy of these considerations today. For even if HHS could properly consider such factors, its “wholesale failure” to adequately address a “salient factor” — namely, access to care — renders its decision arbitrary and capricious. Humane Soc’y v. Zinke, 865 F.3d 585, 607 (D.C. Cir. 2017). That is not to say, of course, that HHS could never promulgate a rule under Section 1557 incorporating Title IX’s religious exemption. “Rather, [the Court] holds today only that [HHS] must adequately consider the effect of” a blanket religious exemption on the ability for
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individuals to access care on a prompt and nondiscriminatory basis. See Stewart v. Azar, 313 F. Supp. 3d 237, 272 (D.D.C. 2018). It never did so here.
In closing this particular area of discussion, the Court notes that nothing in this decision renders religiously affiliated providers devoid of protection. Far from it. To name a few safeguards: the ACA instructs that no provision “shall be construed to have any effect on Federal laws regarding (i) conscience protection; (ii) willingness or refusal to provide abortion; and (iii) discrimination on the basis of the willingness or refusal to provide, pay for, cover, or refer for abortion or to provide or participate in training to provide abortion.” 42 U.S.C. § 18023(c)(2). The 2020 Rule, moreover, explicitly acknowledges that Section 1557 is subject to RFRA’s protections of religious conscience from government-imposed burdens, see 45 C.F.R. § 92.6(b) — protections the Supreme Court has confirmed are “very broad.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 (2014). Nothing in the Court’s decision today implicates in any fashion the applicability of these independent statutory safeguards.
3. Elimination of Prohibition on Categorical Coverage Exclusions Plaintiffs encounter less success in their challenge to HHS’s elimination of the 2016 Rule’s prohibition on “categorical coverage exclusion[s] or limitation[s] for all health services related to gender transition.” 81 Fed. Reg. at 31,471–72 (formerly codified at 45 C.F.R. § 92.207(b)(4)). Although they no doubt have ardent policy objections to the agency’s removal of such prohibitions on insurers’ having or implementing categorical coverage exclusions, the sole question before the Court is whether HHS “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines, 371 U.S. at 168). At least at the present juncture, Plaintiffs have not shown otherwise. Mindful of the
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“narrow” scope of arbitrary-and-capricious review — a standard that bars courts from “substitut[ing] [their] judgment for that of the agency” — the Court finds that Plaintiffs have not demonstrated a likelihood of success on this aspect of their case. Id.
As an initial matter, Defendants contend that HHS exceeded its authority under the 2016 Rule when it prohibited categorical coverage exclusions of gender-affirming care, including sexreassignment procedures. See Def. Opp. at 19. As the agency asserted in the 2020 Rule, “There is no statutory authority to require the provision or coverage of such procedures under Title IX protections from discrimination on the basis of sex.” 85 Fed. Reg. at 37,198; see also id. at 37,199. Plaintiffs, somewhat puzzlingly, never argue to the contrary; nor do they maintain that Section 1557 compels the inclusion of a prohibition on coverage exclusions. Instead, Plaintiffs simply contend that HHS “did not offer a reasonable explanation” for its policy change, which ran “counter to the evidence” and “was not the product of reasoned decision-making.” Pl. Reply at 13. In light of this more limited argument, the Court need not resolve the precise limits of HHS’s authority to implement Section 1557’s prohibition on sex discrimination. Even assuming that the 2016 Rule’s prohibition on categorical coverage exclusions of gender-affirming care was lawful, the Court cannot presently conclude that the agency’s decision to remove that prohibition was arbitrary and capricious.
When an agency changes a policy position, “it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one.” Fox, 556 U.S. at 515. Instead, “it suffices that the new policy is permissible under the statute,” and “that there are good reasons for it.” Id. Here, HHS expressly confronted its prior policy regarding prohibitions on categorical coverage exclusions and delivered a sufficiently reasoned explanation for its new position. In promulgating the 2020 Rule, the agency consulted scientific
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studies, government reviews, and comments from a host of medical professionals regarding treatment for gender dysphoria. See 85 Fed. Reg. 37,187, 37,196–98. The upshot, according to HHS, was that “the medical community is divided on many issues related to gender identity, including the value of various ‘gender-affirming’ treatments for gender dysphoria (especially for minors).” Id. at 37,187. That division counseled against a blanket prohibition on categorical coverage exclusions of gender-affirming care. According to the agency, eliminating the prohibition would enable providers and insurers “to use their best medical judgment” when delivering and covering care, as informed by “ongoing medical debate and study” regarding gender-affirming treatment. Id. at 37,187.
In the 2020 Rule, HHS acknowledged the 2016 Rule’s assumption that entities offering categorical coverage exclusions for gender-affirming care were relying on medical judgments that were “outdated and not based on current standards of care.” Id. at 37,187 (quoting 81 Fed. Reg. at 31,429). The agency, however, concluded that this earlier assertion was “erroneous” and that there was “a lack of scientific and medical consensus to support” it. Id. Plaintiffs take issue with three pieces of evidence HHS cited in support of that conclusion. Without entering the merits of the debate, the Court is satisfied that each was valid for HHS to consider, and that each reinforced the agency’s ultimate determination.
First, HHS pointed to a 2016 CMS decision declining to issue a National Coverage Determination that would have mandated coverage for sex-reassignment surgery for Medicare beneficiaries with gender dysphoria. See 85 Fed. Reg. at 37,187. There, CMS determined, “[b]ased on an extensive assessment of the clinical evidence,” that “there is not enough high quality evidence to determine whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria and whether patients most likely to benefit
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from these types of surgical intervention can be identified prospectively.” CMS, Decision Memo for Gender Dysphoria and Gender Reassignment Surgery (CAG-00446N) (Aug. 30, 2016), https://perma.cc/9S73-4WQB. Plaintiffs emphasize that CMS’s decision did not mean there would be national non-coverage for gender-affirming care, but only that coverage determinations would occur on a case-by-case basis. See Pl. Mot. at 17. That point, however, is nonresponsive, as HHS invokes the CMS decision only as evidence for the “lack of scientific and medical consensus” regarding such treatment. See 85 Fed. Reg. at 37,187.
Second, HHS referenced a 2018 Department of Defense report, which found that there is “considerable scientific uncertainty and overall lack of high quality scientific evidence demonstrating the extent to which transition-related treatments . . . remedy the multifaceted mental health problems associated with gender dysphoria.” Id. (quoting Department of Defense, Report and Recommendations on Military Service by Transgender Persons at 5 (Feb. 22, 2018), https://perma.cc/7369-K2VC). Plaintiffs attempt to blunt the force of this report by pointing out that it summarized recommendations “based on each Panel member’s independent military judgment.” DOD Report at 4 (emphasis added). As HHS noted, however, the report also included input from civilian medical professionals with experience treating gender dysphoria. See 85 Fed. Reg. at 37,187; DOD Report at 18. In any event, even assuming that the military context in which the report was issued counsels against unguarded acceptance of all of its conclusions in the context of civilian health care, the report’s factual finding regarding the “scientific uncertainty and overall lack of high quality scientific evidence” surrounding genderaffirming treatment ultimately echoes CMS’s similar finding two years earlier — which Plaintiffs do not and cannot dispute was tailored to civilians.
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Finally, HHS characterized a scientific study as concluding “that children who socially transition in childhood faced dramatically increased likelihood of persistence of gender dysphoria into adolescence and adulthood.” 85 Fed. Reg. at 37,187 (citing Thomas D. Steensma et al., “Factors Associated with Desistance and Persistence of Childhood Gender Dysphoria: A Quantitative Follow-Up Study,” 52(6) J. Am. Acad. of Child & Adolescent Psych. 582–90 (2013)). Plaintiffs dispute that representation, emphasizing that the study concluded only that the intensity of early gender dysphoria appears to be an important predictor of the persistence of gender dysphoria in later years of life. See Pl. Mot. at 18 (citing Steensma et al. at 582). Defendants, however, correctly point out that the study found that boys who transitioned during childhood experienced “significantly” greater gender dysphoria in later years, a finding consistent with HHS’s characterization. See Steensma at 586–87; see also id. at 588 (explaining that “[c]hildhood social transitions were important predictors of persistence” and that “[s]ocial transitions were associated with more intense [gender dysphoria] in childhood”).
Beyond criticizing HHS’s reliance on these sources, Plaintiffs point to standards issued by the World Professional Association for Transgender Health — and adopted by additional organizations — that endorse various forms of treatment for gender dysphoria. See Pl. Mot. at 16–17. But HHS explicitly considered these standards in promulgating the 2020 Rule, referencing submissions from various commenters who agreed with the group’s approach. See 85 Fed. Reg. at 37,196 & nn.220–25. After summarizing such evidence, the agency turned to comments from clinicians who criticized the WPATH standards for reaching “policy conclusions without adequate clinical evidence.” Id. at 37,197 & n.232 (citing studies). HHS also indicated its agreement with certain commenters “that the 2016 Rule relied excessively on the conclusions of an advocacy group (WPATH) rather than on independent scientific fact-finding” such as the
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aforementioned CMS decision that conducted an “extensive assessment of the clinical evidence” only to find an absence of evidence sufficient “to determine whether gender reassignment surgery improves health outcomes” for individuals with gender dysphoria. Id. at 37,187, 37,198.
Once again, it is not this Court’s place to resolve this scientific debate. Nor may it pass judgment on the wisdom of the agency’s decision. The Court is limited, rather, to considering whether “the agency has examined relevant data and has articulated a rational explanation for its action.” Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 921 (D.C. Cir. 1985). The above discussion makes clear that HHS thoroughly considered the evidence Plaintiffs raise, but nevertheless concluded that “there is no medical consensus to support one or another form of treatment for gender dysphoria.” 85 Fed. Reg. at 37,198. Plaintiffs cannot show that determination to be arbitrary and capricious simply by pointing to evidence that the agency plainly took into account. See Pl. Mot. at 16–17.
Plaintiffs also briefly contend that HHS failed to consider the “reliance” interests of various stakeholders, including transgender patients, on the 2016 Rule’s prohibition on categorical coverage exclusions. Id. at 18. Even assuming Plaintiffs have identified “serious reliance interests” with the requisite particularity, Encino Motorcars, 136 S. Ct. at 2126 (quoting Fox, 556 U.S. at 515), nowhere do they acknowledge HHS’s express statement that nothing in the 2020 Rule “prohibits a healthcare provider from offering or performing sex-reassignment treatments and surgeries, or an insurer from covering such treatments and procedures, either as a general matter or on a case-by-case basis.” 85 Fed. Reg. at 37,188. Indeed, HHS went on, “The large number of comments received from healthcare providers who perform such treatments and procedures suggests that there is no shortage of providers willing to do so.” Id.; see also id. at 37,196 (acknowledging comments claiming that 2020 Rule’s insurance coverage provisions
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jeopardize access to gender transition services). If Plaintiffs deem that discussion insufficient to discharge HHS’s duty to consider “legitimate reliance on prior interpretation,” they will need to address it head on. Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996).
Plaintiffs, consequently, have not demonstrated a likelihood of success on the merits of their challenge to HHS’s repeal of the 2016 Rule’s prohibition on categorical coverage exclusions for gender-transition-related health services.
4. Elimination of Notice Requirements Plaintiffs next take aim at HHS’s elimination of the 2016 Rule’s notice and tagline requirements. Here, too, the Court finds that they have not demonstrated a likelihood of success on their claim that such repeal was procedurally invalid. As previously discussed, although their briefing at times references unspecified revisions to the 2016 Rule’s language-access requirements, Plaintiffs confine their present challenge to HHS’s repeal of the prior Rule’s notice and tagline provisions. See Hrg. Tr. at 22–23; Pl. Mot. at 24. Those provisions required covered entities to post certain notices and taglines in their “significant publications and significant communications” with members of the public, as well as in “conspicuous physical locations.” 81 Fed. Reg. at 31,469 (formerly codified at 45 C.F.R. § 92.8(f)–(g)). The notices were intended to inform the public that, inter alia, the covered entity does not discriminate on the grounds incorporated into Section 1557, and that it provides various language-assistance services and auxiliary aids. See id. (formerly codified at 45 C.F.R. § 92.8(a)). Covered entities also had to include short “taglines” in certain significant communications and locations, in either fifteen languages (for larger-sized communications and physical locations) or in two languages (for smaller communications), indicating the availability of these language-assistance services. Id. (formerly codified at 45 C.F.R. §§ 92.4, 92.8).
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The 2020 Rule eliminated these notice and tagline requirements entirely. In reviewing that action, the Court is once more tasked with determining whether the repeal was arbitrary and capricious — in other words, whether HHS neglected to provide a sufficiently “reasoned analysis” for its change in policy. State Farm, 463 U.S. at 42. Finding that the agency’s explanation was more than adequate, the Court declines Plaintiffs’ invitation to set aside the repeal.
By this point in the journey, the reader knows all too well that in order to justify a change in policy, an agency must “display awareness that it is changing position” and “must show that there are good reasons for the new policy.” Fox, 556 U.S. at 515. Here, HHS did both. It plainly acknowledged its shift in course from the 2016 Rule, stating explicitly that it sought to “repeal in toto the Section 1557 provisions on taglines . . . and notices of non-discrimination.” 84 Fed. Reg. at 27,868; see also 85 Fed. Reg. at 37,204. The agency likewise provided an array of reasons for its change in position. For instance, HHS determined that the costs and burdens imposed by the notice and tagline requirements were “substantially larger than originally anticipated.” 84 Fed. Reg. at 27,857. The 2016 Rule had estimated that the total cost of complying with these provisions would be $7.2 million, with expenditures declining to zero after the first year of implementation notwithstanding covered entities’ continuing obligation to provide the notices on all “significant publications and significant communications.” 81 Fed. Reg. at 31,453, 31,458 (Table 5); 84 Fed. Reg. at 27,875. HHS ultimately concluded that these projections were a “gross underestimation” of costs, and that eliminating the requirements would save approximately $2.9 billion over a five-year period. See 85 Fed. Reg. at 37,163, 37,224.
In addition, the agency cited reports from covered entities of implementation difficulties, largely resulting from the many different and overlapping notice and language-access
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requirements imposed by federal and state governments. See id. at 37,211 & n.281 (citing statutes). Even when implemented correctly, stakeholders feared that the “repetitive nature” of the notices “dilute[d] the messages contained in significant communications to the point that some recipients may be disregarding the information entirely.” Id. at 37,211. HHS also noted that high costs often yielded minimal benefit, both because the “vast majority of recipients of taglines do not require translation services” and because providers were often required to print taglines in languages that very few individuals spoke. Id. at 37,233. In Wyoming, for instance, health-insurance issuers needed to provide translation notices in Gujarati and Navajo in every significant communication sent to beneficiaries to account for a combined 79 speakers of those languages. Id. HHS could validly consider these concerns in determining that a new approach was warranted. The agency, after all, need not establish that its stated justifications are “better than the reasons for the old” policy; it suffices that the agency “believes [the new policy] to be better.” Fox, 556 U.S. at 515.
Plaintiffs do not address any of these justifications for HHS’s change in position, much less contest their legitimacy. Instead, they contend that the agency neglected to explain or sufficiently consider how individuals will become apprised of their health-care rights under Section 1557, along with the availability of various language-assistance services, without the notices or taglines. See Pl. Mot. at 19, 24–25. As will presently become clear, however, HHS grappled with the precise considerations that Plaintiffs insist it ignored. Indeed, it found that limited evidence of notice and taglines’ leading to increased access was a principal reason that their significant costs and burdens outweighed their far more limited benefits.
An agency discharges its obligation to “consider an important aspect of the problem” when it “g[ives] the specific reasons for which it disagree[s]” with the basis for the alleged
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problem. Am. Petroleum Inst. v. EPA, 684 F.3d 1342, 1350 (D.C. Cir. 2012) (citation omitted). Here, in the 2020 Rule, HHS squarely considered the possibility that “[r]epealing the notice and taglines requirement may impose costs, such as decreasing access to, and utilization of, healthcare for non-English speakers.” 85 Fed. Reg. at 37,232. The agency acknowledged a report from one commenting hospital that had experienced an uptick in requests for translation services after the 2016 Rule, and it remarked that other entities had documented a similar trend. Id. at 37,233. But the agency also cited ample evidence that pointed in the other direction. Several commenters, including at least one health plan, reported no increase in the number of callers requesting translation services since the 2016 Rule’s promulgation. Id. at 37,232–33; 84 Fed. Reg. at 27,859. Another health plan reported lower numbers of requests for translation services over the same three-month period in 2017 compared to 2016. See 84 Fed. Reg. at 27,859.
Ultimately, even as it acknowledged the “difference in reports” among commenters, HHS determined that the evidence, viewed in its entirety, was consistent with the conclusion that the 2016 Rule’s notice and tagline requirements “did not appreciably increase the use of translation services.” 85 Fed. Reg. at 37,233. The agency likewise found that the significant burdens imposed by the requirements — including their dramatically underestimated cost — were “disproportionate” to such limited evidence of their potential benefit. Id. Notably, the 2020 Rule specifically required covered entities to take “reasonable steps to ensure meaningful access to [language-access] programs or activities by limited English proficient individuals.” 45 C.F.R. § 92.101; see also 85 Fed. Reg. at 37,209–10. HHS simply eliminated the requirement that “all significant communications contain taglines,” which the agency determined, in light of the evidence, was “unduly broad, sometimes confusing, and inefficient.” 85 Fed. Reg. at 37,176
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(emphasis added). “Such cost-benefit analyses epitomize the types of decisions that are most appropriately entrusted to the expertise of an agency.” Office of Communication of United Church of Christ v. FCC, 707 F.2d 1413, 1440 (D.C. Cir. 1983).
In sum, therefore, HHS plainly “acknowledge[d]” the possibility of a reduction in access to health care, Am. Petroleum Inst., 684 F.3d at 1350, and “articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines, 371 U.S. at 168). The APA requires nothing more.
Plaintiffs also briefly dispute HHS’s reasoning on a narrower ground. Specifically, they home in on the agency’s apparent determination that the notice requirements under Section 1557’s incorporated statutes would adequately inform individuals of their nondiscrimination rights in the event the additional notices and taglines under Section 1557 were eliminated. See Pl. Mot. at 19. As the agency explained, each of the four statutes incorporated into Section 1557 independently requires covered entities to distribute various forms of notice regarding individuals’ right to be free from discrimination on the relevant protected ground. See 85 Fed. Reg. at 37,175–76 & n.61 (citing 45 C.F.R. § 80.6(d) (Title VI); 45 C.F.R. § 84.8 (Section 504); 45 C.F.R. § 86.9 (Title IX); 45 C.F.R. § 91.32 (Age Discrimination Act)). Those provisions would be unaffected by the repeal of Section 1557’s supplementary notice requirements, and, according to HHS, would continue to provide broad notification of patients’ nondiscrimination rights. See id. at 37,204 (“[HHS] is unaware of data suggesting that those regulations have been or are inadequate to their purpose of making individuals aware of their civil rights.”).
In response, Plaintiffs claim that HHS never explained how some individuals would learn of such rights in the absence of Section 1557’s notices and taglines because “the underlying
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[incorporated] statutes . . . may not apply to every health care entity.” Pl. Mot. at 25; see also id. at 19 (asserting vaguely that “not all the underlying statutes apply to every health care provider”). But Plaintiffs make no effort whatsoever to elaborate on that posited coverage cap, either as to its extent or the type of health-care entity that would fall within it. They simply make tentative declarations that unidentified patients at an unspecified number of facilities “may” not receive affirmative notice of particular protected grounds of nondiscrimination. On this record, and especially in light of HHS’s analysis of the limited benefits of the notice and tagline requirements in relation to their significant burdens, the Court cannot conclude that Plaintiffs have established that HHS “failed to consider an important aspect of the problem” or “offered an explanation for its decision that runs counter to the evidence before the agency.” State Farm, 463 U.S. at 43.
Finally, in their reply brief, Plaintiffs argue for the first time that HHS “failed to adequately consider regulatory alternatives” to a repeal of the notice and tagline provisions, such as the possibility of issuing guidance clarifying the communications the agency considered to be “significant.” Pl. Reply at 15. As an initial matter, “district courts . . . generally deem arguments made only in reply briefs to be forfeited.” Pardo-Kronemann v. Donovan, 601 F.3d 599, 610 (D.C. Cir. 2010). In any event, Plaintiffs appear to be squarely mistaken that HHS “did not consider” such an alternative, see Pl. Reply at 15, as the agency specifically “decline[d] to retain [the notice and tagline] requirements while merely issuing more guidance on what constitute significant communications.” 85 Fed. Reg. at 37,176. Plaintiffs never acknowledge that discussion.
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As Plaintiffs have not demonstrated any procedural deficiency in HHS’s elimination of the 2016 Rule’s notice and tagline requirements, the Court rejects their proposal to enjoin such repeal.
5. Section 1554 Across their two briefs, the sum total of Plaintiffs’ argument that the 2020 Rule violates Section 1554 of the ACA amounts to approximately a single page. See Pl. Mot. at 26; Pl. Reply at 19–20. The Court likewise need not spend much time here. Section 1554 prohibits HHS from promulgating any regulation that, inter alia, “creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care,” “impedes timely access to health care services,” or “interferes with communications regarding a full range of treatment options between the patient and the provider.” 42 U.S.C. § 18114(1)–(3). Plaintiffs contend that the 2020 Rule runs afoul of these prohibitions. Although caselaw construing Section 1554 is extremely sparse, the Court draws guidance from the sole court of appeals decision interpreting the provision. There, the en banc Ninth Circuit explained that “[t]he most natural reading of § 1554 is that Congress intended to ensure that HHS, in implementing the broad authority provided by the ACA, does not improperly impose regulatory burdens on doctors and patients.” California ex rel. Becerra v. Azar, 950 F.3d 1067, 1094 (9th Cir. 2020) (en banc). The court rejected the plaintiffs’ argument that an HHS regulation implementing various measures designed to ensure that certain funds would not be used to promote abortion services violated Section 1554. Id. at 1092. According to the court, because the rule at issue “places no substantive barrier on individuals’ ability to obtain appropriate medical care or on doctors’ ability to communicate with clients,” it “does not
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implicate § 1554,” which prevents only “direct government interference with health care.” Id. at 1094–95.
Plaintiffs provide no reason to depart from this interpretation. Indeed, they do not address California at all, despite the fact that Defendants highlighted the case in their brief. See Def. Opp. at 32. Nor do Plaintiffs cite a single case construing Section 1554 or otherwise offer anything resembling an interpretation of the provision. Instead, they reference broad assertions in their declarations that various provisions of the 2020 Rule “invite[] discrimination against LGBTQ people,” “discourage[] them from seeking care in the first instance,” and “burden [their] access to health care.” Pl. Reply at 19–20; see also id. (alleging that 2020 Rule will cause a “reduction of coverage” and hinder receipt of “health care information”). Plaintiffs, however, cannot show that the Rule places a “substantive barrier on individuals’ ability to obtain appropriate medical care.” California, 950 F.3d at 1095. A regulation that does so would itself affirmatively “impede[]” access to health care and itself “interfere[]” with communications regarding treatment options; by contrast, the challenged provisions principally reduce regulatory burdens affecting patients and covered entities. See 42 U.S.C. § 18114(2)–(3); see also Planned Parenthood of Md., Inc. v. Azar, No. 20-361, 2020 WL 3893241, at *9–10 (D. Md. July 10, 2020) (holding that regulation violated Section 1554 by requiring insurers to provide two separate bills for particular services, as opposed to one combined bill, thereby “mak[ing] it harder for consumers to pay for insurance,” and distinguishing California given that direct imposition of regulatory burden).
To be clear, the Court today need not, and does not, fully embrace California’s interpretation of Section 1554. It preserves the possibility that a regulation generating sufficiently severe and demonstrated negative consequences for the “ability of individuals to
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obtain appropriate medical care” or “timely access to health care services” might violate Section 1554, see 42 U.S.C. § 18114(1)–(2), even if the rule itself does not amount to “direct government interference with health care” by requiring providers or patients to perform or abstain from certain conduct. California, 950 F.3d at 1094. Plaintiffs however, must offer a greater showing of those negative implications than simply broad statements in declarations attesting to alleged future harm at the hands of unnamed providers and insurers, and they must sufficiently tie such harm to the challenged regulation itself. Their inability to do so here prevents their success on the merits.
6. Constitutional Claims The Court’s last merits destination is Plaintiffs’ four constitutional claims. As a reminder, they contend that the 2020 Rule runs afoul of the Fifth Amendment’s guarantees of equal protection and substantive due process, infringes their right to free speech, and violates the Establishment Clause. The reader need not gather her wits again, for very little discussion is warranted. In light of its prior disposition of Plaintiffs’ various arbitrary-and-capricious challenges, the Court finds that it need not presently rule on any of these tag-along constitutional claims. This is so, essentially, because resolution of Plaintiffs’ APA claims provides them all the relief they seek with respect to the relevant challenged provisions.
a. Equal Protection Start with the equal-protection claim. As Plaintiffs’ briefing makes clear, this challenge is premised in whole on HHS’s elimination of the 2016 Rule’s definition of sex discrimination. According to Plaintiffs, the “[2020] Rule constitutes government action that purports to permit discrimination on the basis of gender identity under Section 1557.” Pl. Reply at 21. They focus exclusively on how the Rule “does not simply repeat the text of the statute — it excludes gender
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identity and sex stereotyping from Section 1557’s protections.” Id.; see also Pl. Mot. at 28 (arguing 2020 Rule “carv[es] . . . out” LGBTQ people “from regulatory nondiscrimination protections under Section 1557”). Separately, they contend that HHS violated the Equal Protection Clause because it harbored impermissible discriminatory animus against LGBTQ people. See Pl. Mot. at 29–31. But that assertion, once more, rests entirely on the elimination of the 2016 Rule’s explicit prohibitions. See Pl. Reply at 21 (claiming there is “discriminatory animus behind the [2020] Rule’s exclusion of LGBTQ people from Section 1557”); Pl. Mot. at 29 (“[T]he exclusion of LGBTQ people from the nondiscrimination protections under Section 1557 is motivated by the Trump administration’s and HHS officials’ clear animus against LGBTQ people.”).
The Court, however, has already found that HHS’s repeal of the 2016 Rule’s prohibition on discrimination based on sex stereotyping was arbitrary and capricious, and that Plaintiffs lack standing to challenge the elimination of the gender-identity provision. See supra at 31, 57. The former disposition will, for the reasons given below, yield an injunction barring enforcement of that repeal. As a result, the Court need not presently consider an independent constitutional challenge to the same provision that would generate for Plaintiffs no additional relief. See Damus v. Nielson, 313 F. Supp. 3d 317, 335 (D.D.C. 2018) (declining to address plaintiffs’ additional constitutional argument when resolution of APA claim yielded desired injunctive relief); Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 154 n.29 (D.D.C. 2018) (same). Indeed, forbearance is all the more warranted in light of the Supreme Court’s longstanding instruction that courts “ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.” Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944).
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b. Substantive Due Process Plaintiffs’ substantive-due-process claim yields the same outcome, as it is once again premised on the “[2020] Rule’s elimination of the definition of ‘on the basis of sex.’” Pl. Reply at 22; see also id. (arguing that 2020 Rule “interfere[s] with LGBTQ people’s ability to express their identity . . . by inviting discrimination against LGBTQ people,” thereby violating substantive due process). By finding for Plaintiffs on their arbitrary-and-capricious challenge to that repeal, the Court rendered unnecessary any consideration of an alternative ground for enjoining the same agency action. It bears noting that, although their reply brief appears to limit any substantive-dueprocess argument to the elimination of the 2016 Rule’s sex-discrimination definition, Plaintiffs at times cast their due-process claim as challenging the 2020 Rule as a whole. See Pl. Mot. at 31 (“The [2020] Rule must be set aside.”). Their exceedingly brief discussion, however, identifies no specifically challenged regulatory action other than the repeal of the 2016 Rule’s definition. In any event, the Court’s standing and merits dispositions leave only two provisions for potential discussion: the elimination of the 2016 Rule’s prohibition on categorical coverage exclusions and notice requirements. At no point do Plaintiffs suggest that these repeals amount to a substantivedue-process violation.
c. Free Speech Plaintiffs next posit that the 2020 Rule “impermissibly chills LGBTQ patients . . . from being open about their gender identity, transgender status, or sexual orientation and from expressing themselves in a manner consistent with each’s gender identity or sexual orientation,” in violation of the First Amendment. See Pl. Mot. at 31. Although Plaintiffs never point to the specific regulatory provision that causes this alleged “chill[ing]” of expression, their discussion
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appears to attribute it to the 2020 Rule’s repeal of the prior definition of sex discrimination and incorporation of Title IX’s religious exemption. See Pl. Reply at 22 (contending that 2020 Rule “discourages and constrains” expression by “inviting health care discrimination against LGBTQ people”); Pl. Mot. at 32 (similar). Nowhere do Plaintiffs identify any other components of the 2020 Rule that might underlie their free-speech claim. Once again, therefore, because this constitutional challenge is apparently confined to regulatory actions already deemed arbitrary and capricious, the Court need not presently resolve it.
d. Establishment Clause Finally, Plaintiffs insist that the 2020 Rule violates the Establishment Clause “because it imposes costs, burdens, and harms on plaintiffs, their members, and patients to facilitate the religious beliefs of objecting providers.” Pl. Mot. at 33. Perhaps predictably, this challenge is based entirely on the Rule’s incorporation of religious exemptions from Section 1557’s nondiscrimination mandate. See id.; Pl. Reply at 22–23. The Court has already found HHS’s adoption of Title IX’s religious exemption to be arbitrary and capricious, so it need not presently resolve any Establishment Clause challenge regarding that particular regulatory action, for the same reasons previously discussed. Plaintiffs also appear to take issue with the 2020 Rule’s incorporation of “‘definitions, exemptions, affirmative rights, or protections’ from unrelated statutes.” Pl. Mot. at 33 (quoting 45 C.F.R. § 92.6(b)). This vague invocation, however, does not come anywhere close to informing the Court of the precise basis for their constitutional challenge. The cited regulatory provision incorporates protections from more than ten distinct statutes, as well as “any related, successor, or similar Federal laws or regulations.” 45 C.F.R. § 92.6(b). Aside from Title IX, Plaintiffs mention none of these laws, let alone explain why incorporation of their various rights
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or protections violates the Establishment Clause. The Court declines to analyze the merits of a claim Plaintiffs have not coherently pressed.
B. Irreparable Harm Although the first prong of the preliminary-injunction test consumed no small amount of ink, the next one is not nearly as prolix. It asks whether Plaintiffs are “likely to suffer irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20. Since the Court has determined that they are likely to succeed on their challenges to HHS’s repeal of the 2016 Rule’s definition of sex discrimination and incorporation of Title IX’s religious exemption, it need only consider irreparable harm with respect to those two claims. The Court finds that the healthprovider Plaintiffs have made the requisite showing as to each. “To demonstrate irreparable injury, a plaintiff must show that it will suffer harm that is ‘more than simply irretrievable; it must also be serious in terms of its effect on the plaintiff.’” Hi-Tech Pharmacal Co. v. FDA, 587 F. Supp. 2d 1, 11 (D.D.C. 2008) (quoting Gulf Oil Corp. v. Dep’t of Energy, 514 F. Supp. 1019, 1026 (D.D.C. 1981)). In other words, the harm must be “both certain and great; it must be actual and not theoretical,” and of a nature “of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (quotation marks and emphasis omitted). In addition, the harm “must be beyond remediation.” Chaplaincy of Full Gospel Churches, 454 F.3d at 297. Here, there is little question that the health-provider Plaintiffs have shown they will suffer some harm. As the D.C. Circuit has confirmed, “[O]bstacles” that “unquestionably make it more difficult for [an organization] to accomplish [its] primary mission . . . provide injury for purposes both of standing and irreparable harm.” League of Women Voters, 838 F.3d at 9 (emphasis
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added); see also Open Communities All. v. Carson, 286 F. Supp. 3d 148, 177 (D.D.C. 2017) (same). As the Court has already determined, see supra at 28–29, 34, elimination of the 2016 Rule’s sex-discrimination definition and incorporation of Title IX’s religious exemption will likely “perceptibly impair[]” the health-provider Plaintiffs’ “ability to provide services.” Food & Water Watch, 808 F.3d at 919.
With harm having been established, the Court may move to the principal issues in assessing the irreparability of Plaintiffs’ injuries — namely, the harm’s extent and remediability. The health-provider Plaintiffs have demonstrated that they will likely experience an array of financial and operational burdens as a result of the two regulatory actions at issue. As a reminder, they have shown that the 2020 Rule will lead to a significant increase in demand for their health-care services from LGBTQ patients who fear discrimination at the hands of external providers. See Bolan Decl., ¶¶ 11, 13, 18; Shafi Decl., ¶ 34; Henn Decl., ¶¶ 19, 29. It “will demand organizational resources” to service this increased patient population, as care does not pay for itself. Dist. of Columbia, 444 F. Supp. 3d at 41. In addition, the health-provider Plaintiffs will be forced to provide increasingly difficult treatment for LGBTQ patients who arrive with more acute conditions, either because they refrain from being fully transparent with their external providers given their heightened fears of discrimination, or because such apprehension causes them to delay seeking necessary care entirely. See Bolan Decl., ¶¶ 11, 17; Shafi Decl., ¶ 21; Salcedo Decl., ¶ 33; Cummings Decl., ¶ 16; Carpenter Decl., ¶ 20.
Whitman-Walker, for instance, explains that many of its health-care services currently lose money, and the “pressure” on those services will be “exacerbate[d]” by an influx of new clients. See Shafi Decl., ¶¶ 34–35; see also id., ¶ 34 (questioning Whitman-Walker’s ability to “sustain the additional financial burdens resulting from an increased load of patients”). The
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delayed provision of care — from either increased demand or patients’ deferring such care and arriving with worsened conditions — will “strain Whitman-Walker’s resources,” “increase costs,” and “make it harder for [its] health care providers to treat the patients.” Henn Decl., ¶¶ 21, 29. For its own part, LA LGBT asserts that the 2020 Rule “makes it difficult, if not impossible, for the Center to continue providing the same level of social, mental, and physical health care to its patients.” Cummings Decl., ¶ 33; see also Carpenter Decl., ¶ 16 (describing how “increase in demand . . . will limit my ability to provide adequate care and time to my patients” and may worsen outcomes); Cummings Decl., ¶ 20 (explaining how “increased demand” will cause “financial strains on the Center”). As the Court has already shown, see supra at 26, these harms are far from “speculative.” Def. Opp. at 42. And they will “be serious in terms of [their] effect[s] on [Plaintiffs],’” jeopardizing their ability to treat all patients who turn to their organizations for urgent health-care needs. See Hi-Tech Pharmacal Co., 587 F. Supp. 2d at 11 (quoting Gulf Oil Corp., 514 F. Supp. at 1026).
Beyond these injuries, the health-provider Plaintiffs have also pointed to other ways in which they will “expend[] resources ‘in response to, and to counteract, the effects of the [2020 Rule].’” PETA II, 797 F.3d at 1097 (quoting Equal Rights Ctr., 633 F.3d at 1140). It is well established that even resources “expend[ed] . . . to educate [an organization’s] members and others” qualifies as injury where “doing so subjects the organization to ‘operational costs beyond those normally expended.’” Food & Water Watch, 808 F.3d at 920 (quoting Nat’l Taxpayers Union, 68 F.3d at 1434); see also Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C. Cir. 2011).
That is exactly what will occur here, as the health-provider Plaintiffs will “need to devote more resources to working with outside providers and organizations to remind them of the
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importance of providing health care to all patients on nondiscriminatory terms.” Shafi Decl., ¶ 37 (emphasis added); see also id. (citing plans to “increase [Whitman-Walker’s] education programs and community outreach” to deal with effects of 2020 Rule). LA LGBT has cited “confusion and panic created by the [2020] Rule” as leading it to “already . . . expend additional resources educating its clients and staff about their rights,” and it intends to continue doing so. See Cummings Decl., ¶¶ 9, 14 (emphasis added); Dist. of Columbia, 444 F. Supp. 3d at 41 (crediting similar allegations of need to expend resources on “outreach” and “education” regarding agency action). It likewise intends to host informational sessions about how the Rule will affect patients and LA LGBT’s services, which will force the organization “to divert resources away from other programming.” Cummings Decl., ¶ 26. These expenditures will further burden budgets that are already severely strained, subjecting the health-provider Plaintiffs to additional operational expenses. See Shafi Decl., ¶ 36–37; Cummings Decl., ¶ 8.
Courts routinely find irreparable harm based on similar allegations of future injury. See Open Communities All., 286 F. Supp. 3d at 178 (irreparable harm where agency action threatened to “frustrate[]” organization’s mission, and where organization stated intention to counteract action by spending resources on outreach, public education, and advocacy); Dist. of Columbia, 444 F. Supp. 3d at 40–42 (irreparable harm where organization alleged that agency action would cause individuals to “turn to [its] food assistance program, increasing demand and forcing [organization] to divert resources”); E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 1109, 1116 (N.D. Cal. 2018) (irreparable harm when organization “experienced difficulty implementing its programs” and expended resources to counteract agency action); see also League of Women Voters, 838 F.3d at 9 (irreparable harm when challenged action “ma[de] it more difficult for [organizations] to accomplish their primary mission of registering voters”).
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The plentiful evidence indicating that Plaintiffs will suffer their alleged harms renders this case far afield from John Doe Company v. CFPB, 849 F.3d 1129 (D.C. Cir. 2017), cited by Defendants, where the plaintiff simply asserted it would suffer economic harm in conclusory fashion “unaccompanied by any relevant declarations.” Id. at 1134 (emphasis added); see Def. Opp. at 42. Because of the significant financial and operational harms the health-provider Plaintiffs will suffer on account of the 2020 Rule — and the consequent, well-established threat to their ability to deliver timely and effective care to their patients — the Court finds that their asserted injuries clear the irreparable-harm threshold.
In response, Defendants primarily insist that the health-provider Plaintiffs cannot demonstrate irreparable injury through economic harm unless such harm “threaten[s]” the “‘very existence’ of [their] business.” Def. Surreply at 13 (quoting Soundboard Assn. v. U.S. Fed. Trade Comm’n, 254 F. Supp. 3d 7, 13 (D.D.C. 2017)); Def. Opp. at 42. Defendants are correct that while “economic loss does not, in and of itself, constitute irreparable harm,” such loss may be sufficient where it “threatens the very existence of the movant’s business.” Wis. Gas. Co., 758 F.2d at 674. But that is not the entire story. As particularly relevant here, courts in this district have suggested that a lesser showing is permissible when the economic injury at issue is unrecoverable. Specifically, “where economic loss will be unrecoverable, such as in a case against a Government defendant where sovereign immunity will bar recovery, economic loss can be irreparable” even if it would not wipe the business out. Everglades Harvesting & Hauling, Inc. v. Scalia, 427 F. Supp. 3d 101, 115 (D.D.C. 2019); see also Dist. of Columbia, 444 F. Supp. 3d at 37 n.25 (deeming “existential harm requirement” inapplicable to unrecoverable economic harm) (citing Open Communities All., 286 F. Supp. 3d at 178); Texas Children’s Hospital v. Burwell, 76 F. Supp. 3d 224, 242–44 (D.D.C. 2014). Other jurisdictions have adopted similar
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approaches. See Chamber of Commerce v. Edmondson, 594 F.3d 742, 770–71 (10th Cir. 2010) (“Imposition of monetary damages that cannot later be recovered for reasons such as sovereign immunity constitutes irreparable injury.”); Iowa Utilities Bd. v. FCC, 109 F.3d 418, 426 (8th Cir. 1996) (“The threat of unrecoverable economic loss, however, does qualify as irreparable harm.”).
Overlooking this line of authority, Defendants rely on but a single case — National Mining Association v. Jackson, 768 F. Supp. 2d 34 (D.D.C. 2011) — for the proposition that unrecoverable monetary damages are irreparable only if they threaten a business’s existence. See Def. Opp. at 42. Yet they never quote from the decision, and it is clear why: nothing contained within it stands for their asserted principle. On the contrary, National Mining Association states that “if a movant seeking a preliminary injunction ‘will be unable to sue to recover any monetary damages against’ a government agency in the future because of, among other things, sovereign immunity, financial loss can constitute irreparable injury.” 768 F. Supp. 2d at 52 (quoting Brendsel v. Office of Fed. Hous. Enter. Oversight, 339 F. Supp. 2d 52, 66–67 (D.D.C. 2004)); see also Texas Children’s Hospital, 76 F. Supp. 3d at 242–44 (citing National Mining Association before concluding that unrecoverable economic harm was irreparable even though it “would not drive plaintiffs out of business”) (emphasis added); Everglades Harvesting & Hauling, 427 F. Supp. 3d at 116 (finding irreparable harm from “unrecoverable” projected losses, even if they “do not sink these small businesses”). The court went on to suggest that other factors may prevent non-existential economic losses from rising to the level of irreparable harm, but nonetheless concluded that “[i]f a plaintiff has shown that financial losses are certain, imminent, and unrecoverable, then the imposition of a preliminary injunction is appropriate and necessary.” Nat’l Mining Ass’n, 768 F. Supp. 2d at 52–53; see also Texas Children’s Hospital, 76 F. Supp. 3d at 242 (similar). Here, the health-provider Plaintiffs check all three boxes.
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As an initial matter, their injuries are unrecoverable because the present suit arises under the APA, which does not allow for recovery of monetary damages. See 5 U.S.C. § 702 (providing for relief “other than money damages”); E. Bay Sanctuary Covenant v. Barr, 964 F.3d 832, 854 (9th Cir. 2020) (“In the APA context, economic harms may be irreparable because plaintiffs are otherwise unable to recover monetary damages.”); Open Communities All., 286 F. Supp. 3d at 178 (concluding that plaintiff need not show existential threat to business because its “monetary losses . . . are not recoverable, as the APA provides no damages remedy”). Defendants, moreover, have at no point suggested any waiver of sovereign immunity that might enable recovery of monetary damages from HHS. See Dist. of Columbia, 444 F. Supp. 3d at 34 (explaining that “economic injury caused by federal agency action is unrecoverable because the APA’s waiver of sovereign immunity does not extend to damages claims”); Everglades Harvesting & Hauling, 427 F. Supp. 3d at 115 (similar). In addition, as previously discussed, Plaintiffs’ financial losses are “certain” and “imminent.” Nat’l Mining Ass’n, 768 F. Supp. 2d at 53. The Court also does not turn a blind eye to the reality that here, “economic loss” is not simply “loss of profit”; rather, it means “reducing [health-care] services” to patients, many of whom are indigent. See Texas Children’s Hospital, 76 F. Supp. 3d at 243–44.
Concluding that Plaintiffs need not show a threat to their very existence in order to establish irreparable harm, of course, does not excuse them from their obligation to show that future economic injury will be “certain,” “great,” and “actual.” Wis. Gas Co., 758 F.2d at 674. The Court readily acknowledges that “[a] prospective injury that is sufficient to establish standing . . . does not necessarily satisfy the more demanding burden of demonstrating irreparable injury.” Cal. Ass’n of Private Postsecondary Schs. v. DeVos, 344 F. Supp. 3d 158, 170 (D.D.C. 2018). Here, however, for the reasons explained above, the health-provider
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Plaintiffs’ unrecoverable future harm is of such a degree, severity, and “imminence that there is a clear and present need for equitable relief to prevent” it. Wis. Gas Co., 758 F.2d at 674.
As a final coda, the Court briefly notes that the preliminary injunction recently issued by the Eastern District of New York does not alter this result. See Walker, 2020 WL 4749859, at *10. That injunction barred HHS from carrying out its repeal of the relevant provisions of the 2016 Rule’s sex-discrimination definition. Id. This state of affairs thus raises potential questions as to whether Plaintiffs can still demonstrate irreparable harm regarding sex stereotyping in the absence of a similar order here. In other words, if that provision of the Rule is already enjoined, where is the pressing injury? While it is true that HHS cannot eliminate the Rule’s explicit prohibition on sex stereotyping today, circumstances may well be different tomorrow. This Court, after all, has no “power over or knowledge of whether and, if so, when” Walker’s preliminary injunction “will be lifted or modified.” Cook Cty. v. McAleenan, 417 F. Supp. 3d 1008, 1030 (N.D. Ill. 2019). Indeed, “[e]ven a temporary lag between the lifting” of that injunction (or restriction of its geographic scope) and entry of an injunction by this Court would likely “entail some irreparable harm” to Plaintiffs. Id.
For these reasons, courts routinely grant follow-on injunctions against the Government, even in instances when an earlier nationwide injunction has already provided plaintiffs in the later action with their desired relief. See, e.g., California v. HHS, 390 F. Supp. 3d 1061, 1065– 66 (N.D. Cal. 2019) (issuing nationwide injunction, even though another court had already ordered same relief, because “the existence of another injunction — particularly one in a different circuit that could be overturned or limited at any time — does not negate [plaintiff’s] claimed irreparable harm”); Mayor & City Council of Baltimore v. Azar, 392 F. Supp. 3d 602, 618–19 (D. Md. 2019) (ordering “overlapping” injunction even though nationwide injunction
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had been issued in earlier case, and rejecting argument that there was no irreparable harm); Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 435 (E.D.N.Y. 2018), vacated in part and rev’d in part on other grounds, Regents of the Univ. of California, 140 S. Ct. 1891 (granting injunction notwithstanding prior nationwide injunction because prior injunction could be lifted, and noting that Government “cite[s] no authority for the proposition that Plaintiffs cannot establish irreparable harm simply because another court has already enjoined the same challenged action”).
The Court acknowledges that other courts have taken different approaches. Some, for instance, have entered discretionary stays or otherwise denied preliminary-injunction motions upon the issuance of a nationwide injunction granting relief similar to what plaintiffs in the later suit sought. See Pars Equality Ctr. v. Trump, No. 17-255, slip op. at 6–7 (D.D.C. Mar. 2, 2018); Washington v. Trump, No. 17-0141, 2017 WL 4857088, at *6 (W.D. Wash. Oct. 27, 2017). Recognizing that “overlapping injunctions appear to be a common outcome of parallel litigation,” however, the Court finds that Plaintiffs have established irreparable harm on their sex-discrimination-definition claim notwithstanding the injunction in Walker. See California, 390 F. Supp. 3d at 1065. The Court declines to forbear when neither party has asked it to do so, and when the relevant out-of-circuit injunction could be stayed, modified, or otherwise vacated at any time.
C. Balance of Equities and Public Interest Having established a likelihood of success on the merits and irreparable harm, Plaintiffs must finally demonstrate “that the balance of equities tips in [their] favor,” and that “an injunction is in the public interest.” Sherley, 644 F.3d at 392 (quoting Winter, 555 U.S. at 20). These last two prongs — which “merge when the Government is the opposing party,” FBME
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Bank Ltd. v. Lew, 125 F. Supp. 3d 109, 127 (D.D.C. 2015) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)) — pose no serious obstacle to Plaintiffs’ request for a preliminary injunction.
The health-provider Plaintiffs have shown that they will suffer significant financial and programmatic harm as a result of HHS’s repeal of the 2016 Rule’s sex-discrimination definition and its incorporation of Title IX’s religious exemption. These irreparable injuries, which the Court need not belabor again here, will impair Plaintiffs’ public-health programs and cause them to divert already scarce resources to counteract the 2020 Rule’s effects. In addition, denying an injunction would impede the public interest by threatening the health of LGBTQ individuals at large, some of whom will likely develop increasingly acute conditions on account of their delaying necessary care or refraining from transparent communication with providers out of fear of discrimination. There is clearly a robust public interest in safeguarding prompt access to health care. See New York v. DHS, Nos. 19-3591, 19-3595, 2020 WL 4457951, at *31 (2d Cir. Aug. 4, 2020) (finding that public interest favored preliminary injunction where agency action would likely result in worse health outcomes); California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018) (similar). The COVID-19 pandemic only reinforces the importance of that public interest and the concomitant need to ensure the availability and provision of care on a nondiscriminatory basis.
On the other side of the ledger, Defendants emphasize the harm to an agency if a court enjoins it “from effectuating statutes enacted” by Congress. See Def. Opp. at 43 (quoting Maryland v. King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers)). But “[t]here is generally no public interest in the perpetuation of unlawful agency action.” League of Women Voters, 838 F.3d at 12. “To the contrary, there is a substantial public interest ‘in having governmental agencies abide by the federal laws that govern their existence and operations.’” Id. (quoting
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Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994)); see also N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 21 (D.D.C. 2009) (“The public interest is served when administrative agencies comply with their obligations under the APA.”). HHS cannot invoke the public interest as being in favor of its actions when it promulgated the two relevant provisions in disregard of the APA’s procedural mandates.
In addition, although Defendants cite the 2016 Rule’s “substantial costs,” Def. Opp. at 43, they fail to trace any to the two regulatory actions at issue here, as opposed to more likely subjects such as the prior Rule’s notice and tagline provisions. Defendants separately claim that the 2016 Rule “failed to protect religious interests” and “interfered with . . . medical and ethical judgment.” Id. Yet nothing in this Court’s Order affects the application of RFRA — which the 2020 Rule made clear applies in full to Section 1557, see 45 C.F.R. § 92.6(b) — or any of the additional religious protections previously discussed. As these asserted harms do not outweigh those of Plaintiffs, the Court finds that the balance of equities tips in Plaintiffs’ favor, and that an injunction is in the public interest. V. Remedy
Having found that Plaintiffs are entitled to an injunction — at least as to the sexstereotyping and religious-exemption issues — the Court now turns to its scope. Both Circuit precedent and the need to provide Plaintiffs complete relief confirm that a nationwide injunction is the appropriate remedy here.
“Once invoked, the scope of a district court’s equitable powers . . . is broad, for breadth and flexibility are inherent in equitable remedies.” Brown v. Plata, 563 U.S. 493, 538 (2011) (citation and internal quotation marks omitted). The D.C. Circuit has confirmed that the “broad discretion” district courts enjoy when awarding equitable relief includes the authority to issue
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nationwide injunctions. Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1408–09 (D.C. Cir. 1998). In National Mining Association, the court of appeals explained that “[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated — not that their application to the individual petitioners is proscribed.” Id. at 1409 (alteration in original) (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989)). That is, upon demonstrating the illegality of an agency action of general applicability, “a single plaintiff, so long as he is injured by the rule, may obtain ‘programmatic’ relief that affects the rights of parties not before the court.” Id. (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 913 (1990) (Blackmun, J., dissenting)). With these principles in mind, the D.C. Circuit affirmed the district court’s nationwide injunction and rejected the agencies’ argument that the injunctive relief should have extended only to the named plaintiffs. Id. at 1408–09.
The APA itself points in the same direction, providing clear instruction for what courts must do if they find that agency action is “arbitrary” or “capricious” — namely, “hold unlawful and set aside” the defective action. See 5 U.S.C. § 706(2); see also United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (“The ordinary practice is to vacate unlawful agency action.”) (citing 5 U.S.C. § 706(2)); Innovation Law Lab v. Wolf, 951 F.3d 1073, 1094 (9th Cir. 2020) (describing “presumption . . . in APA cases that the offending agency action should be set aside in its entirety rather than only in limited geographical areas”).
This binding authority confirms the propriety of nationwide injunctions in APA cases where the challenged policy is found to be arbitrary and capricious or otherwise facially unlawful. Other courts in this district have recognized the same, leveraging the above reasoning and enjoining improper agency action on a nationwide basis. See, e.g., Dist. of Columbia, 444 F.
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Supp. 3d at 47–49; Make the Road New York v. McAleenan, 405 F. Supp. 3d 1, 67–72 (D.D.C. 2019), rev’d on other grounds sub nom. Make the Road New York v. Wolf, 962 F.3d 612 (D.C. Cir. 2020); Doe v. Rumsfeld, 341 F. Supp. 2d 1, 17–19 (D.D.C. 2004); Am. Lands All. v. Norton, No. 00-2339, 2004 WL 3246687, at *3 (D.D.C. June 2, 2004); see also Planned Parenthood Fed’n of Am., Inc. v. Heckler, 712 F.2d 650, 651 (D.C. Cir. 1983) (affirming injunction prohibiting enforcement of federal regulations).
Ignoring this line of precedent entirely, Defendants briefly suggest that nationwide injunctions are historically dubious and are at odds with “traditional equitable practice.” Def. Opp. at 43 (quoting DHS v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant of stay)). Whether or not this history is right, see Mila Sohoni, The Lost History of the “Universal” Injunction, 133 Harv. L. Rev. 920 (2020), Defendants do not cite a single binding precedent applying any such “established principles” to overturn or otherwise “narrow injunctive relief under the APA.” Dist. of Columbia, 444 F. Supp. 3d at 48. On the contrary, as just explained, the D.C. Circuit has expressly endorsed nationwide injunctions in this context.
Defendants also contend that any relief ordered by this Court “should extend only to the named plaintiffs,” Def. Opp. at 43, and that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Id. at 43 (quoting Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994)). But the “scope of injunctive relief is dictated by the extent of the violation established.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). In fact, Defendants completely overlook the reality that their proposed remedy — an injunction that “extend[s] only to the named plaintiffs,” Def. Opp. at 43 — would not provide Plaintiffs with any meaningful relief, let alone “complete relief.” Califano, 442 U.S. at 702. That is because their asserted harms, as discussed at length above, derive largely from the effects
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of the 2020 Rule on third-party LGBTQ patients. The reader well knows by now the relevant chain of events: the 2020 Rule’s elimination of explicit sex-discrimination prohibitions and incorporation of Title IX’s religious exemption instill in LGBTQ patients a fear of discrimination at the hands of external providers, thereby causing the health-provider Plaintiffs to suffer the significant financial and operational consequences of heightened demand and patients’ arriving with increasingly acute conditions. Because these Plaintiffs’ harms stem most immediately from the foreseeable responses of third parties to the 2020 Rule — rather than from any direct imposition of regulatory burden — an order barring enforcement of the Rule solely as to themselves would not remedy their injuries. Complete relief will only obtain upon an injunction with a broader sweep — one that reinstates the relevant provisions of the 2016 Rule as applied to all covered entities, a remedy that will mitigate the fears of LGBTQ patients and in turn alleviate the health-provider Plaintiffs’ consequent harms.
In addition, although Defendants never specifically request an injunction limited in geographic scope, the Court notes that any such restriction on the applicability of its order would impair the provision of complete relief to Plaintiffs. Although Whitman-Walker is based in Washington, D.C., it delivers health-care services not only to locals, but also to people from Maryland, Virginia, Pennsylvania, West Virginia, and Delaware. See Shafi Decl., ¶ 4. LA LGBT, meanwhile, reports that many of its patients come from various parts of California, other states, and even other countries. See Cummings Decl., ¶ 4; Bolan Decl., ¶ 5. Many of the outof-state individuals who seek the Center’s services do so specifically out of fear of discrimination from local providers, and the organization reasonably expects these numbers only to increase. See Cummings Decl., ¶ 5. Just as an injunction limited to the health-provider
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Plaintiffs would be futile to remediate their injuries, neither will one restricted in scope to their immediate locales provide them full relief.
Indeed, to the extent similarly situated LGBTQ-affirming health-care providers across the country experience comparable harms as a result of the 2020 Rule, nationwide relief becomes all the more appropriate. See Dist. of Columbia, 444 F. Supp. 3d at 51 (ordering nationwide injunction in part “because the burdens that would fall on the plaintiffs upon the Final Rule's implementation would also fall on those similarly situated”). There is no reason to believe — and nowhere do Defendants suggest — that the financial, programmatic, and operational injuries claimed by the health-provider Plaintiffs will be unique to them. Rather, the consequences of increased demand and patients’ arriving with more acute conditions threaten the activities of all organizations that subscribe to a similar LGBTQ-affirming mission.
In rendering such a decision, the Court does not discount Defendants’ general concern that nationwide relief may truncate the process by which legal challenges percolate through various jurisdictions in the federal court system. See Def. Opp. at 44. These concerns are significantly tempered here, though, by the fact that two district courts in other jurisdictions have already issued opinions on preliminary-injunction motions raising similar challenges to the 2020 Rule. See Walker, No. 20-2834 (E.D.N.Y. 2020); Washington, No. 20-1105 (W.D. Wash. 2020). Nothing in this Court’s Order, moreover, prevents other courts from tackling these same issues — much like the injunction in Walker did not bar this Court from considering Plaintiffs’ challenge to the repeal of the 2016 Rule’s sex-discrimination definition. See also supra at 92–93 (citing instances of courts’ issuing follow-on injunctions when other courts had previously ordered nationwide relief). In addition, Defendants’ reservations ignore the D.C. Circuit’s explicit instruction that unlawful agency regulations are ordinarily vacated universally, not
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simply enjoined in application solely to the individual plaintiffs. Nat’l Mining Ass’n, 145 F.3d at 1409.
While the Court rejects Defendants’ arguments against nationwide relief, so, too, does it decline Plaintiffs’ sweeping invitation to enjoin the 2020 Rule “in its entirety.” Pl. Mot. at 44 (capitalization altered). Plaintiffs believe that the rule is “so infected” that “there is no point in enjoining it on a piecemeal basis,” and that HHS’s failure to consider the Supreme Court’s decision in Bostock “is indicative of the lack of reasoned decision-making that permeates the entire Revised Rule.” Id. Such a holding would, of course, undo much of the analysis the Court has performed in this doorstop of an Opinion. As explained at length above, aside from the two provisions the Court enjoins, Plaintiffs have not demonstrated that any other component of the 2020 Rule was insufficiently reasoned (or that they have standing to assail it). Nowhere, moreover, do they explain how the agency’s non-consideration of Bostock infects any of the Rule’s numerous provisions — the majority of which Plaintiffs do not even mention, let alone challenge — other than the repeal of the 2016 Rule’s sex-discrimination definition. See 85 Fed. Reg. at 37,243–48 (reproducing 2020 Rule’s amendments in full). In addition, and unacknowledged by Plaintiffs, the 2020 Rule retains a severability clause. See 45 C.F.R. § 92.3(d). They never suggest that the extensive remainder of the 2020 Rule cannot “function sensibly” without the two discrete provisions the Court enjoins. MD/DC/DE Broads. Ass’n v. FCC, 236 F.3d 13, 23 (D.C. Cir. 2001).
At the end of the day, the Court finds an injunction of nationwide scope to be the appropriate remedy here. Such injunction will be limited to the two challenges for which Plaintiffs have demonstrated a likelihood of success on the merits — the 2020 Rule’s repeal of the prior Rule’s explicit prohibition on discrimination based on sex stereotyping, and the 2020
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Rule’s incorporation of Title IX’s religious exemption. This ruling as to the former tracks in part the order of the Eastern District of New York in Walker, which enjoined HHS from enforcing the repeal “of the 2016 definition of discrimination on the basis of sex.” Walker, 2020 WL 4749859, at *10. The injunction here, as discussed above, applies only to the repeal of the 2016 Rule’s definition insofar as it included “sex stereotyping,” as Plaintiffs lack standing to challenge the repeal of the previously vacated prohibition on “gender identity” discrimination. As to Title IX’s religious exemption, however, this injunction is the first to issue. VI. Conclusion
The Court, accordingly, will grant in part and deny in part Plaintiffs’ Motion for a Preliminary Injunction or, in the Alternative, a Stay Pending Judicial Review. HHS will be preliminarily enjoined from enforcing the repeal of the 2016 Rule’s definition of discrimination “[o]n the basis of sex” insofar as it includes “discrimination on the basis of . . . sex stereotyping.” 81 Fed. Reg. at 31,467. In addition, the agency will be preliminarily enjoined from enforcing its incorporation of the religious exemption contained in Title IX. See 45 C.F.R. § 92.6(b). Plaintiffs’ Motion will be denied in all other respects. A separate Order so stating will issue this day.

Date: September 2, 2020

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

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