640 F.Supp.3d 668
N.D. Tex.2022Background
- Section 1557 of the ACA incorporates Title IX's prohibition of discrimination "on the basis of sex" into federally funded health programs; HHS issued a 2021 Notification interpreting that prohibition to include discrimination based on sexual orientation and gender identity (SOGI), relying on Bostock.
- Plaintiffs Susan Neese and James Hurly are Texas physicians who make sex-specific medical decisions (including refusals of certain gender‑affirming treatments) and receive federal funds subject to §1557; they challenge the Notification under the APA and seek declaratory relief under the DJA.
- Plaintiffs ask the court to set aside the Notification, enjoin enforcement of HHS's SOGI interpretation, and declare that §1557 prohibits only discrimination motivated by biological sex (not SOGI).
- The court previously found Plaintiffs have standing and certified a class of all healthcare providers subject to §1557; it now considers cross motions for summary judgment.
- The court concludes Bostock does not govern Title IX or §1557, holds the Notification is not in accordance with law, and declares §1557 does not prohibit discrimination based solely on SOGI; it grants APA/DJA relief but denies Plaintiffs’ request for injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Plaintiffs face imminent enforcement threats and thus have Article III standing | Defendants previously challenged standing | Court previously found and does not revisit standing; Plaintiffs have standing |
| Applicability of Bostock to Title IX/§1557 | Bostock's reasoning extends to Title IX/§1557, so "sex" includes SOGI | Bostock interpreted only Title VII; HHS argues its reasoning guides §1557 | Court: Bostock did not decide non‑Title VII statutes and its reasoning is not automatically exportable to Title IX/§1557 |
| Meaning of "on the basis of sex" in Title IX/§1557 | "On the basis of sex" should be read to encompass SOGI discrimination (per Notification) | Text, structure, history, and purpose of Title IX show "sex" refers to biological sex, not SOGI | Court: "on the basis of sex" in Title IX/§1557 means biological sex as commonly understood at enactment; it does not include SOGI |
| Remedies (APA/DJA/injunction) | Seek vacatur of Notification, injunction against enforcement, and declaratory relief | Defendants oppose relief | Court: Grants APA and declaratory‑judgment relief setting aside Notification; denies injunctive relief; orders competing proposed judgments |
Key Cases Cited
- Bostock v. Clayton County, 140 S. Ct. 1731 (Supreme Court 2020) (interpreted Title VII to prohibit employment discrimination based on sexual orientation and gender identity)
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (Supreme Court 1992) (Article III standing requirements)
- Anderson v. Liberty Lobby, 477 U.S. 242 (Supreme Court 1986) (summary judgment standard and materiality of facts)
- Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60 (Supreme Court 1992) (Title IX prohibits harassment "on the basis of sex")
- Cannon v. Univ. of Chicago, 441 U.S. 677 (Supreme Court 1979) (purpose and private right of action under Title IX)
- United States v. Virginia, 518 U.S. 515 (Supreme Court 1996) (acknowledging enduring physiological differences between sexes in equal‑protection context)
- Abbott Labs. v. Gardner, 387 U.S. 136 (Supreme Court 1967) (ripeness and reviewability of agency action under APA)
- Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021) (caution that Title VII principles do not automatically apply to Title IX)
- Olivarez v. T‑Mobile USA, Inc., 997 F.3d 595 (5th Cir. 2021) (Fifth Circuit recognition that transgender discrimination is a form of sex discrimination under Title VII)