127 F.4th 601
5th Cir.2025Background
- Plaintiffs Dr. Susan Neese and James Hurly challenged HHS guidance under Section 1557 of the Affordable Care Act requiring non-discrimination based on gender identity in federally funded health programs.
- Dr. Neese, a general internist, objects to providing or referring minors for gender-affirming care and claims she faces exclusion from federal programs due to this policy.
- The district court granted summary judgment for Neese, but the Fifth Circuit panel vacated for lack of standing, holding the plaintiffs faced no credible threat of enforcement.
- HHS has since replaced the challenged guidance with a Final Rule and, following a change in administration, a new executive order directs agencies to rescind gender identity-based guidance.
- The Fifth Circuit denied rehearing en banc (16–1), leaving the panel’s ruling in place. One judge dissented, arguing that Article III standing existed and that the issues are of significant public importance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III Standing | Faces credible enforcement threat for refusing gender-affirming care/referral to minors | No investigation or penalty is threatened for plaintiff’s conduct | No standing; plaintiffs face no credible threat |
| Interpretation of Section 1557 | Section 1557 doesn’t require doctors to provide or refer for minor gender transitions | HHS applies Bostock to require gender identity non-discrimination, including for minors | Issue not reached due to lack of standing |
| Applicability of New Guidance/Rules | Challenged guidance still exposes her to liability | Guidance has been superseded and Final Rule can be challenged elsewhere | Superseding rules and executive order moot the case |
| Impact of Executive Action | Executive order does not eliminate risk to plaintiff | Executive order mandates rescission of prior gender identity guidance | Executive action further moots case |
Key Cases Cited
- Bostock v. Clayton County, 590 U.S. 644 (Supreme Court held that discrimination against transgender individuals is sex discrimination under Title VII)
- Geduldig v. Aiello, 417 U.S. 484 (Exclusion of pregnancy from insurance coverage not necessarily sex discrimination)
- Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (Reaffirmed Geduldig's approach to classifications associated with one sex)