Whitman-Walker Clinic, Inc. v. U.S. Dep't of Health & Human Servs., Civil Action No. 20-1630 (JEB)

Decision Date02 September 2020
Docket NumberCivil Action No. 20-1630 (JEB)
Citation485 F.Supp.3d 1
Parties WHITMAN-WALKER CLINIC, INC., et al., Plaintiffs, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.
CourtU.S. District Court — District of Columbia

Omar Francisco Gonzalez-Pagan, Pro Hac Vice, Carl Solomon Charles, Pro Hac Vice, Karen Loewy, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Khristoph Becker, Pro Hac Vice, Michael A. Vatis, Steptoe & Johnson LLP, New York, NY, Jamie Avra Gliksberg, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Chicago, IL, Laura Joy Edelstein, Pro Hac Vice, Steptoe & Johnson LLP, San Francisco, CA, Johanna Dennehy, Steptoe & Johnson LLP, Washington, DC, for Plaintiffs.

Liam Holland, William Kerwin Lane, III, Jordan Landrum von Bokern, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

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.

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.

Table of Contents
VI. Conclusion...64
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, 132 S.Ct. 2566, 183 L.Ed.2d 450 (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, 576 U.S. 473, 135 S. Ct. 2480, 2485, 192 L.Ed.2d 483 (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).

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 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 birth-assigned 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...

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