Bos. Alliance of Gay, Lesbian, Bisexual & Transgender Youth (BAGLY) v. U.S. Dep't of Health & Human Servs., Civil Action No. 20-11297-PBS
| Court | United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts |
| Writing for the Court | Saris, D.J. |
| Citation | 557 F.Supp.3d 224 |
| Parties | BOSTON ALLIANCE OF GAY, LESBIAN, BISEXUAL AND TRANSGENDER YOUTH (BAGLY); Callen-Lorde Community Health Center; Campaign for Southern Equality; Darren Lazor; Equality California; Fenway Health; Indigenous Women Rising; No/Aids Task Force (d/b/a CrescentCare); and Transgender Emergency Fund of Massachusetts, Plaintiffs, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES ; Xavier Becerra, in His Official Capacity as Secretary of the U.S. Department of Health and Human Services ; Robinsue Frohboese, in Her Official Capacity as Acting Director, Office for Civil Rights, U.S. Department of Health and Human Services; and Chiquita Brooks-Lasure, in Her Official Capacity as Administrator for the Centers for Medicare and Medicaid Services, U.S. Department of Health and Human Services, Defendants. |
| Docket Number | Civil Action No. 20-11297-PBS |
| Decision Date | 18 August 2021 |
557 F.Supp.3d 224
BOSTON ALLIANCE OF GAY, LESBIAN, BISEXUAL AND TRANSGENDER YOUTH (BAGLY); Callen-Lorde Community Health Center; Campaign for Southern Equality; Darren Lazor; Equality California; Fenway Health; Indigenous Women Rising; No/Aids Task Force (d/b/a CrescentCare); and Transgender Emergency Fund of Massachusetts, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES ; Xavier Becerra, in His Official Capacity as Secretary of the U.S. Department of Health and Human Services ; Robinsue Frohboese, in Her Official Capacity as Acting Director, Office for Civil Rights, U.S. Department of Health and Human Services; and Chiquita Brooks-Lasure, in Her Official Capacity as Administrator for the Centers for Medicare and Medicaid Services, U.S. Department of Health and Human Services, Defendants.
Civil Action No. 20-11297-PBS
United States District Court, D. Massachusetts.
Filed August 18, 2021
Alejandra Caraballo, Pro Hac Vice, David Brown, Pro Hac Vice, Noah Lewis, Pro Hac Vice, Transgender Legal Defense & Education Fund, Kristina Alekseyeva, Pro Hac Vice, Peter William Bautz, Pro Hac Vice, Hogan Lovells US LLP, New York, NY, Dale Melchert, Pro Hac Vice, Transgender Law Center, Oakland, CA, Dorianne Mason, Pro Hac Vice, Lauren Gorodetsky, Pro Hac Vice, Michelle Banker, Pro Hac Vice, Sunu Chandy, Pro Hac Vice, National Women's Law Center, Erin Chapman, Pro Hac Vice, Jessica L. Ellsworth, Jo-Ann Sagar, Pro Hac Vice, Kirti Datla, Pro Hac Vice, Hogan Lovells US LLP, Washington, DC, Kevin Costello, Klein Kavanagh Costello, LLP, William H. Kettlewell, Hogan Lovells US LLP, Boston, MA, Lynly Egyes, Pro Hac Vice, Transgender Law Center, Brooklyn, NY, Maryanne I. Tomazic, Pro Hac Vice, Center for Health Law and Policy Innovation, Cambridge, MA, for Plaintiffs Boston Alliance of Gay, Lesbian, Bisexual and Transgender Youth (BAGLY), Callen-Lorde Community Health Center, Campaign for Southern Equality, Darren Lazor, Equality California, Fenway Health, Transgender Emergency Fund of Massachusetts.
Kevin Costello, Klein Kavanagh Costello, LLP, William H. Kettlewell, Hogan Lovells US LLP, Boston, MA, for Plaintiffs Indigenous Women Rising, NO/AIDS Task Force.
Liam C. Holland, United States Department of Justice, Civil Division, Washington, DC, for Defendants.
MEMORANDUM AND ORDER
Saris, D.J.
INTRODUCTION
Plaintiffs challenge a final rule promulgated by the United States Department of Health and Human Services ("HHS") entitled Nondiscrimination in Health and Health Education Programs or Activities, 85 Fed. Reg. 37,160 (June 19, 2020) ("2020 Rule"), which implements Section 1557 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116. Plaintiffs include three private healthcare facilities that serve LGBTQ+ people, one membership organization, four advocacy organizations that provide services to the LGBTQ+ community, a Native-led reproductive justice collective, and a transgender man. They allege that the 2020 Rule violates the Administrative Procedure Act and the Constitution.1
Among other things, Plaintiffs contend that the 2020 Rule arbitrarily repealed provisions of the 2016 Rule including the definition of "on the basis of sex," the prohibition of categorical coverage exclusions for transgender-related care, the requirement that covered entities "treat individuals consistent with their gender identity," the prohibition of "association" discrimination, and the specific requirement that covered entities provide certain notices of prohibited discrimination and taglines indicating the availability of language assistance services. Plaintiffs also object to the 2020 Rule's incorporation of Title IX's religious and abortion exemptions, the narrowing of the scope of covered entities, and the change to the enforcement scheme. They challenge many of these provisions in light of Bostock v. Clayton County, ––– U.S. ––––, 140 S. Ct. 1731, 1747, 207 L.Ed.2d 218 (2020), which held that "discrimination based on ... transgender status necessarily entails discrimination based on sex." This decision was issued just after the Rule was promulgated.
The Government now moves to dismiss all claims based on lack of standing and ripeness. It also moves to dismiss Count III for failure to state a claim.2 After
hearing, the Court ALLOWS in part and DENIES in part Defendants’ motion to dismiss (Dkt. 21). Some of the plaintiffs have established organizational standing based on economic injury caused by portions of the 2020 Rule (and redressable by its vacatur) to challenge (1) the incorporation of Title IX's abortion exemption, (2) the narrowing of the scope of covered entities, and (3) the elimination of the prohibition on categorical coverage exclusions for care related to gender transition. Plaintiffs lack standing to challenge the change to the enforcement scheme, the elimination of the prohibition on association discrimination, the elimination of the notice and taglines requirements, and the conforming amendments to related regulations because they have not adequately alleged an injury in fact caused by those provisions.
FACTUAL BACKGROUND
I. The 2016 Rule
Congress enacted the Affordable Care Act ("ACA") in 2010. 42 U.S.C. § 18116. The ACA contains a non-discrimination provision known as § 1557, which states:
[A]n individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 ( 42 U.S.C. 2000d et seq. ) ["race, color, or national origin"], title IX of the Education Amendments of 1972 ( 20 U.S.C. 1681 et seq. ) ["sex"], the Age Discrimination Act of 1975 ( 42 U.S.C. 6101 et seq. ) ["age"], or section 794 of Title 29 ["disability"], 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 this title (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.
Id. § 18116(a).
In 2016, HHS promulgated a final rule implementing § 1557. Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376 (May 18, 2016) ("2016 Rule"). Among other things, the 2016 Rule states that § 1557 applies to:
every health program or activity, any part of which receives Federal financial assistance provided or made available by [HHS]; every health program or activity administered by [HHS]; 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. § 92.2(a) ). It defines "covered entity" as "(1) [a]n entity that operates a health program or activity, any part of which received Federal financial assistance; (2) [a]n entity established under Title I of the ACA that administers a health program or activity; and (3) [HHS]." Id. It defines discrimination "on the basis of sex" as including "pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, and gender identity." Id. at 31,467.
The 2016 Rule also specifically requires covered entities to post notice of prohibited discrimination and taglines in at least the top fifteen languages spoken by individuals with limited English proficiency in that State in "conspicuous physical locations where the entity interacts with the public" and in significant communications that are not small-sized, and in at least the top two languages in significant communications that are small-sized. Id. at 31,469
(formerly codified at 45 C.F.R. § 92.8(f)-(g) ); see also id. at 31,468 (defining taglines as "short statements written in non-English languages that indicate the availability of language assistance services free of charge"). It prohibits covered entities providing health insurance from "[h]av[ing] or implement[ing] a categorical coverage exclusion or limitation for all health services related to gender transition." Id. at 31,472 (formerly codified at 45 C.F.R. § 92.207(b)(4) ). Under the Rule, a plaintiff bringing a claim under § 1557 can invoke the enforcement mechanism from any of the referenced civil rights statutes, regardless of the type of discrimination alleged. Id. (formerly codified at 45 C.F.R. § 92.301(a) ).
A Catholic hospital association, a Christian healthcare professional association, and several states sued to enjoin portions of the 2016 Rule. Franciscan Alliance, Inc. v. Becerra, No. 16-cv-00108-O, ––– F.Supp.3d ––––, –––– – ––––, 2021 WL 3492338 at *1–2 (N.D. Tex. Aug. 9, 2021). They alleged that the Rule's prohibition of discrimination on the basis of "termination of pregnancy" and "gender identity" violated the APA and violated the Religious Freedom Restoration Act ("RFRA") as applied to the religious association plaintiffs. Id. at ––––, 2021 WL 3492338 at *2. The court "vacated the 2016 Rule insofar as it...
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...in multiple federal courts. See, e.g., Boston All. of Gay, Lesbian, Bisexual & Transgender Youth v. U.S. Dep't of Health & Hum. Servs., 557 F.Supp.3d 224, 237-39 (D. Mass. 2021). These courts have stayed proceedings as “HHS's efforts to reconsider the 2020 Rule are underway, ” the Departmen......
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Kadel v. Folwell, 1:19CV272
...in multiple federal courts. See, e.g., Boston All. of Gay, Lesbian, Bisexual & Transgender Youth v. U.S. Dep't of Health & Hum. Servs., 557 F.Supp.3d 224, 237-39 (D. Mass. 2021). These courts have stayed proceedings as “HHS's efforts to reconsider the 2020 Rule are underway,” the Department......
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V.U.C. v. U.S. Citizenship & Immigration Servs., CIVIL ACTION NO. 21-10652-RGS
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