123 F.4th 751
5th Cir.2024Background
- Dr. Susan Neese and Dr. James Hurly, Texas doctors, challenged a 2021 HHS Notification interpreting Section 1557 of the ACA and Title IX to prohibit discrimination based on sexual orientation and gender identity.
- Plaintiffs claimed they would not provide certain gender-affirming care, fearing potential enforcement or loss of federal funding but maintained their actions were not discriminatory.
- The district court granted summary judgment for the plaintiffs.
- HHS argued the plaintiffs lacked standing because there was no credible threat of enforcement based on their described medical practices.
- On appeal, the Fifth Circuit conducted a de novo review focused on Article III standing and determined there was no actual or imminent injury.
- The appellate court vacated the lower court’s judgment and remanded with instructions to dismiss for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III Standing | Face imminent enforcement for not giving gender-affirming care | No credible threat of enforcement or injury | No standing; injury too conjectural or hypothetical |
| Nature of "Discrimination" | Care based on biological sex, not gender-identity discrimination | Plaintiffs’ conduct not viewed as gender-identity discrimination | Agreed; conduct does not trigger enforcement |
| Validity of Medical Practice | Medically appropriate to treat per biological sex and specialty | HHS never required doctors to practice outside specialty | Plaintiffs’ concern unsupported; valid reasons exist |
| Final Agency Action | Notification binding and actionable | Also challenged as not final agency action (not resolved) | Not reached; standing dispositive |
Key Cases Cited
- Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020) (held Title VII’s sex discrimination ban includes sexual orientation and gender identity)
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (sets requirements for Article III standing)
- United States v. Ruiz, 536 U.S. 622 (2002) (court's jurisdiction to determine its own jurisdiction)
- Whole Woman’s Health v. Jackson, 595 U.S. 30 (2021) (pre-enforcement standing standards and credible threat requirement)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre-enforcement challenge standing must show threat is sufficiently imminent)