STATE OF WASHINGTON, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.
CASE NO. C20-1105JLR
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
August 28, 2020
Before the court is Plaintiff State of Washington‘s (“Washington“) motion for a preliminary injunction. (See Mot. (Dkt. # 4); Reply (Dkt. # 59).) Defendants United States Department of Health and Human Services and Alex M. Azar (together “HHS“) oppose the motion. (See Resp. (Dkt. # 56).) The parties also filed supplemental briefing (see Wash. Supp. Br. (Dkt. # 64); HHS Supp. Br. (Dkt. # 65)) and responses to the court‘s order to show cause (see Wash. OSC Resp. (Dkt. # 70); HHS OSC Resp. (Dkt. # 71)). Four amici also filed briefs. (House of Reps. Amicus (Dkt. # 39-1); Local Gov‘ts Amicus (Dkt. # 47); Nw. Health Law Amicus (Dkt. # 52); Nat‘l Health Law Amicus (Dkt. # 63).) The court also heard oral argument from the parties. (See 8/14/20 Min. Entry (Dkt. # 61).) The court has considered the motions, the parties’ and amici‘s submissions filed in support of and in opposition to the motions, the oral argument of the parties, the relevant portions of the record, and the applicable law. Being fully advised, the court DENIES Washington‘s motion for a preliminary injunction because Washington lacks Article III standing.
II. BACKGROUND
This case arises from HHS‘s efforts to implement Section 1557 of the Patient Protection
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.
Acting under its Section 1557 authority to issue regulations to implement Section 1557, HHS issued a rule in May 2016, codified at
First, the 2016 Rule prohibited discrimination “on the basis of sex” and specifically defined “on the basis of sex” as including sex stereotyping and gender identity. See
Second, although the 2016 Rule incorporated Title IX‘s prohibition on discrimination on the basis of sex, HHS declined to incorporate a religious exemption codified in Title IX into the 2016 Rule.
Third, the 2016 Rule stated that it applied to the following entities:
Except as provided otherwise in this part, this part applies to every health program or activity, any part of which receives Federal financial assistance provided or made available by the Department; every health program or activity administered by the Department; and every health program or activity administered by a Title I entity.
In 2016, a number of states and private healthcare providers sued to enjoin portions of the 2016 Rule, arguing that gender identity discrimination should not be considered sex discrimination, and that religious organizations should enjoy greater exemptions from Section 1557. See Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016) (“Franciscan All. I“). The Franciscan Alliance court agreed and issued a nationwide preliminary injunction against the 2016 Rule‘s definition of “on the basis of sex” and its failure to incorporate the religious exemptions in Title IX. Id. at 687-96. In May 2017, HHS moved to voluntarily remand the 2016 Rule so that HHS could “assess the reasonableness, necessity, and efficacy” of the 2016 Rule. Franciscan All. Inc. v. Price, No. 7:16-cv-00108, at 1, ECF No. 92 (N.D. Tex. May 2, 2017). On October 15, 2019, on motions for summary judgment, the Franciscan Alliance court re-affirmed its preliminary injunction conclusion that the 2016 Rule violated the Administrative Procedure Act (“APA“), vacated the offending portions of the 2016 Rule, and remanded to HHS for further consideration.4 Franciscan All., Inc. v. Azar, 414 F. Supp. 3d 928, 942, 944-45 (N.D. Tex. 2019) (“Franciscan All. II“), appeal filed, No. 20-10093 (5th Cir. Jan. 24, 2020).
In June 2019, in the wake of Franciscan Alliance, HHS published a new proposed rule, which sought “to make substantial revisions to the Section 1557 Regulation and to eliminate provisions that are inconsistent or redundant with pre-existing civil rights statutes and regulations prohibiting discrimination on the basis of race, color, national origin, sex, age, and disability.” See Nondiscrimination in Health & Health Education Programs or Activities, 84 Fed. Reg. 27,846, 27,848-49 (June 14, 2019). This proposed rule served as the basis for the final rule at issue in this case (“the 2020 Rule“), which HHS published in the Federal Register on June 19, 2020. See Nondiscrimination in Health & Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160 (June 19, 2020) (to be codified at
Three portions of the 2020 Rule are relevant to Washington‘s motion. First, like the 2016 Rule, the 2020 Rule prohibits discrimination on the basis of sex. The 2020 Rule includes a new provision which states:
(a) [A]n individual shall not, on any of the grounds set forth in paragraph (b) of this section, be excluded from participation in, be denied the benefits of, or be subjected to discrimination . . . .
(b) The grounds are the grounds prohibited under the following statutes:
. . . .
(2) Title IX of the Education Amendments of 1972 (
20 U.S.C. 1681 et seq. ) (sex);. . . .
Although portions of the preamble suggest that HHS intends to defer to judicial construction of Title IX caselaw on the definition of “sex,” HHS takes a position on the appropriate interpretation of the term “sex” throughout the preamble to the 2020 Rule:
“Sex” according to its original and ordinary public meaning refers to the biological binary of male and female that human beings share with other mammals. As noted in briefs recently submitted by the Federal government to the Supreme Court, discrimination on the basis of sex means discrimination on the basis of the fact that an individual is biologically male or female.
On June 15, 2020—three days after HHS filed the 2020 Rule and four days before the Rule was published in the Federal Register—the United States Supreme Court issued a decision that interpreted “sex” discrimination under Title VII, Bostock v. Clayton County., --- U.S. ---, 140 S. Ct. 1731 (2020). Bostock was a Title VII employment case in which the Court was asked to determine “whether an employer can fire someone simply for being homosexual or transgender.” Id. at 1737. The Court determined that employers could not take such action, and in so ruling, the Court held that “sex” discrimination—as that term is used in Title VII—includes sexual orientation and gender identity discrimination. See id. at 1741-54 (“An individual‘s homosexuality or transgender status is not relevant to employment decisions. That‘s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.“). Although the majority opinion in Bostock offered no opinion on the impact of its interpretation of “sex” as used in Title VII on other federal statutes that also use “sex,” like Title IX, the dissent contended that “[w]hat the Court has done today—interpreting discrimination because of ‘sex’ to encompass discrimination because of sexual orientation or gender identity—is virtually certain to have far-reaching consequences” and specifically cited Title IX as one example of a statute that could be impacted. See id. at 1778 (Alito, J., Dissenting).
The second relevant portion of the 2020 Rule relates to the 2020 Rule‘s approach to religious exemptions. The 2020 Rule incorporates the Title IX religious exemption that the 2016 Rule omitted. See
The third relevant portion of the 2020 Rule relates to the 2020 Rule‘s definition of the scope of covered entities. Specifically, the 2020 Rule states that it applies to:
(1) Any health program or activity, any part of which is receiving Federal financial assistance (including credits, subsidies, or contracts of insurance) provided by the Department;
(2) Any program or activity administered by the Department under Title I of the Patient Protection and Affordable Care Act; or
(3) Any program or activity administered by any entity established under such Title.
The 2020 Rule also repeals the 2016 Rule‘s definition of “health program or activity” and replaces that provision with the following definition:
As used in this part, “health program or activity” encompasses all of the operations of entities principally engaged in the business of providing healthcare that receive Federal financial assistance as described in paragraph (a)(1) of this section. For any entity not principally engaged in the business of providing healthcare, the requirements applicable to a “health program or activity” under this part shall apply to such entity‘s operations only to the extent any such operation receives Federal financial assistance as described in paragraph (a)(1) of this section.
For purposes of this part, an entity principally or otherwise engaged in the business of providing health insurance shall not, by virtue of such provision, be considered to be principally engaged in the business of providing healthcare.
III. ANALYSIS
Washington moves to enjoin the following portions of the 2020 Rule: (1) HHS‘s decision not to define the terms “sex” or “on the basis of sex” in the 2020 Rule; (2) the 2020 Rule‘s incorporation of the Title IX religious exemption; and (3) the 2020 Rule‘s construction of the scope of entities
A. Standing
Under Article III, Washington bears the burden of demonstrating that it has standing to litigate in federal court. See
Because Washington must establish standing for each claim it asserts in this case, the court addresses standing as it applies to each of Washington‘s three challenges to the 2020 Rule.
1. Definition of “Sex”6
After reviewing Washington‘s supplemental brief on standing issues, the court
a. Increased Discrimination or Diminished Healthcare Coverage
Washington‘s first alleged basis for standing—costs and other economic harms resulting from increased discrimination against Washingtonians or diminished access to healthcare for Washingtonians—fails at the injury in fact prong of the standing inquiry. “To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc., 528 U.S. at 181, (quoting Lujan, 504 U.S. at 560); see also Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 409 (2013). Washington must show that the injury is “certainly impending” or “there is a substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (internal quotation marks omitted). “A future injury need not be ‘literally certain,’ but there must be a ‘substantial risk’ that it will occur.” Nw. Requirements Utils. v. F.E.R.C., 798 F.3d 796, 805 (9th Cir. 2015) (quoting Clapper, 568 U.S. at 432).
Washington bases its argument that the 2020 Rule will increase discrimination and decrease healthcare coverage on assumptions about the impact that the 2020 Rule will have on Washingtonians. Washington submitted 17 declarations in support of its motion, many of which attempted to address expected harm to Washington. (See Dkt. ## 6-22.) Many of these the declarations addressing the 2020 Rule‘s decision not to define “sex” or “on the basis of sex” assume that this portion of the 2020 Rule “provides that protection from discrimination on the basis of sex in healthcare does not extend to LGBTQ people.” (See, e.g., Booher Decl. (Dkt. # 6) ¶ 4; Roberts Decl. (Dkt. # 17) ¶ 5 (“As I understand it, the new regulation will restrict the scope of Section 1557 of the
In fact, Washington vehemently argues throughout its brief that the inevitable result of Bostock—which was issued after HHS finalized the preamble language that Washington takes issue with—is that “on the basis of sex” under Section 1557 and Title IX must now be interpreted to include concepts like gender identity and sexual orientation. (See, e.g., Reply at 6 (“HHS cannot possibly offer any reason why Section 1557 does not encompass discrimination based on sexual orientation and gender identity after Bostock.“).) Early returns on Title IX caselaw suggest that Washington may be correct on that point. See, e.g., Adams by & through Kasper v. Sch. Bd. of St. Johns Cty., No. 18-13592, 2020 WL 4561817, at *12 (11th Cir. Aug. 7, 2020) (“With Bostock‘s guidance, we conclude that Title IX, like Title VII, prohibits discrimination against
Ironically, however, Washington‘s argument about the impact of Bostock harms Washington‘s efforts to establish an injury in fact. Washington‘s evidence in support of its claim that it will suffer an injury in fact once the 2020 Rule is implemented presumes that the 2020 Rule does not extend protection against discrimination to LGBTQ individuals. (See, e.g., Booher Decl. ¶ 4; Roberts Decl. ¶ 5; Knox Decl. ¶ 18; Todorovich Decl. ¶ 9.) Yet, if Washington is correct that Bostock means that Title IX and Section 1557 must incorporate protection for gender identity and sexual orientation discrimination, then that means that the 2020 Rule does, in fact, extend protection against discrimination to LGBTQ individuals via the Rule‘s incorporation of Title IX by reference. Admittedly, given that Bostock is a Title VII case, it remains unclear whether, or to what extent, Bostock‘s rationale will ultimately be applied to Title IX and Section 1557. For purposes of standing, however, the key point is that Washington makes no effort to explain why providers or insurers would be willing to risk revising their practices or policies to discriminate against LGBTQ individuals in light of the Supreme Court‘s recent guidance in Bostock and the very arguments that Washington advances in this case. (See generally Reply at 1-3; Wash. Supp. Br. at 1-5.)
Washington could overcome this deficiency if it could provide specific evidence establishing that a third-party provider or insurer planned to discriminate against or limit its healthcare coverage for LGBTQ individuals once the 2020 Rule went into effect. The case that Washington relies most heavily on in support of its standing argument, California v. Azar, 911 F.3d 558 (9th Cir. 2018), included such evidence. In that case, the Ninth Circuit found that a group of states had standing to challenge an HHS rule that impacted contraceptive coverage based on its conclusion that “[t]he states show, with reasonable probability, that the [challenged rule] will first lead to women losing employer-sponsored contraceptive coverage, which will then result in economic harm to the states.” Id. at 571. Specifically, the court noted that (1) HHS conducted a detailed regulatory impact analysis that analyzed the scope of expected coverage loss and concluded that between 31,700 and 120,000 women nationwide would lose coverage; and (2) “[t]he record . . . includes names of specific employers identified by the [regulatory impact analysis] as likely to use the expanded exemptions, including those operating in the plaintiff states like Hobby Lobby Stores, Inc.” Id. at 572. Other examples of cases relying on concrete evidence of impending injury sufficient to confer standing abound. See, e.g., Dep‘t of Commerce v. New York, --- U.S. ---, 139 S. Ct. 2551, 2565 (2019) (affirming trial court‘s finding “that the evidence at trial established a sufficient likelihood that the reinstatement of a citizenship question would result in noncitizen households responding to the census at lower rates than other groups, which in turn would cause them to be undercounted and lead to many of respondents’ asserted injuries“); City & Cty. of San Francisco v. United States Citizenship & Immigration Servs., 944 F.3d 773, 787 (9th Cir. 2019)9
(noting that the Department of Homeland Security estimated that its regulation would cause a 2.5 percent benefits disenrollment rate—which would cost states over one billion dollars—and that “according to evidence supplied by the States, the predicted results have already started“). If Washington could point to similar evidence, then its claimed injuries would cross the line from “mere speculation about the decisions of third parties,” which is inadequate to confer standing, to a showing of “the predictable effect of Government action on the decisions of third parties,” which is sufficient even when the injury depends on the future actions of third parties. Dep‘t of Commerce, 139 S. Ct. at 2566; see also Azar, 911 F.3d 571-73 (noting that “[j]ust because a causal chain links the states to the harm does not foreclose standing,” so long as the links are not hypothetical or tenuous).
The problem, however, is that Washington lacks sufficient evidence to show that the 2020 Rule‘s decision not to define on the basis of sex will yield an increase in discrimination against LGBTQ individuals or a decrease in available healthcare or health insurance coverage for that population. Washington‘s best evidence on this point comes from the Declaration of Michelle Roberts, who is the acting Assistant Secretary for the division of Prevention and Community Health at the Washington State Department of Health (“DOH“). (See Roberts Decl. ¶ 2.) But Ms. Roberts’ declaration reads more like Washington‘s legal briefing on the proper conclusion to draw from HHS‘s statements in the preamble than a fact witness declaration. Ms. Roberts alleges that HHS found in the preamble to the 2016 Rule that that Rule would result in more transgender women and women with a history of pregnancy termination obtaining coverage and accessing services, and that HHS “admits” in the preamble to the 2020 Rule that the Rule “will result in at least some healthcare entities declining to provide coverage consistent with the previous version of the regulation.” (See Roberts Decl. ¶ 6 (citing 81 Fed. Reg. at 31,460 and 85 Fed. Reg. at 37181).) According to Ms. Roberts, this means that “the new regulation will result in discrimination by healthcare providers, administrators of healthcare coverage, and others against women with a history of pregnancy termination, gay and lesbian individuals, and transgender individuals.” (Id.).
Ms. Roberts overstates the strength of HHS‘s actual conclusions. In the 2016 Rule, HHS concluded that “[w]e expect that the Section 1557 regulation may contribute to a continued reduction in the number of individuals who are uninsured, although the reduction would be much more modest” than the changes created by Section 1557, generally. 81 Fed. Reg. at 31,460. This tentative and speculative conclusion—which attributed most of the successful outcomes to the impact of Section 1557 and not the expected outcome of the 2016 Rule—is hardly as resolute or fact-based as Ms. Roberts makes it out to be.
Moreover, HHS‘s findings related to the impact of the 2016 Rule do not categorically apply to the 2020 Rule and mean that “the reverse” of anything that HHS said in the 2016 Rule can be applied to the 2020 Rule. (See Roberts Decl. ¶ 7 (“HHS also
found in the previous version of the regulation that greater healthcare coverage for
Ms. Roberts’ assumption on that point rests on the same unfounded argument discussed above that the 2020 Rule‘s failure to define “on the basis of sex” will inevitably lead to increased discrimination or decreased coverage and a reversion to the state of the healthcare industry before the 2016 Rule. (See Roberts Decl. ¶ 6.) Because it is not yet clear what changes, if any, the 2020 Rule will have on the way
The 2020 Rule also does not “admit” that discrimination will increase, or insurance coverage will decrease, as a result of the 2020 Rule. (See Roberts Decl. ¶ 6.) In one sentence unsupported by any evidence, the 2020 preamble speculates that “[p]resumably some insurers will maintain coverage consistent with the 2016 Rule‘s requirements and some will not.”
Washington‘s general lack of evidence that the 2020 Rule will create an injury in fact is also exacerbated by the impact that the
Washington may well prove correct that the 2020 Rule will have a discriminatory impact on Washingtonians despite Bostock and
b. Administrative Costs
Even if the court agreed with Washington that its second category of claimed harm—administrative costs that it intends to incur once the 2020 Rule goes into effect—satisfies the injury in fact requirement for standing, this alleged injury still fails to establish that Washington has standing to litigate this case because that injury is not traceable to HHS or the 2020 Rule.11 To establish standing, Washington must show that there is a “causal connection between the injury and the conduct complained of—the injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not th[e] result [of] the independent action of some third party not before the court.‘” Lujan, 504 U.S. at 560 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)).
Washington submits evidence showing that it will incur increased administrative costs of approximately $178,168.16 to “revise agency policies, websites, and materials” once the 2020 Rule becomes effective. (See Reply at 2; Krehbiel Decl. (Dkt. # 9) ¶¶ 15-16; Moss Decl. (Dkt. # 13) ¶¶ 17-18.) More specifically, Washington claims that it “will be required to use staff time to undertake a comprehensive review of and make necessary changes to” things like form letters, posters and brochures, websites, “[p]olicies and standard operating procedures related to non-discrimination,” notices, and training materials. (See Krehbiel Decl. ¶ 15; Moss Decl. ¶ 15.)
The problem with Washington‘s argument is that these administrative costs are voluntary, “self-inflicted” costs that Washington imposes based on its desire to inform Washingtonians of changes in federal law. Clapper, 568 U.S. at 418 (“[R]espondents’ self-inflicted injuries are not fairly traceable to the Government‘s purported activities . . . .“); Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976) (“No State can be heard to complain about damage inflicted by its own hand.“). Although it may well be prudent on Washington‘s part to incur administrative costs to inform its citizens about changes in the 2020 Rule, Washington does not point to any provision in the 2020 Rule that requires Washington to incur those costs beyond the general fact that the 2020 Rule is a new agency regulation that includes differences from the 2016 Rule. (See generally Reply at 1-3; Wash. Supp. Br. at 1-5.) As the court noted during oral argument, however, if states could establish standing based solely on administrative costs incurred because of a change in agency regulation,
To be sure, there are cases in which agency regulations may impact state law or a state‘s administrative functioning in a way that is fairly traceable to the agency. For example, in one of the cases Washington cites, District of Columbia v. United States Department of Agriculture, the Department of Agriculture issued regulations that would “dramatically alter the long-standing operations of the [Supplemental Nutrition Assistance Program (“SNAP“), formally known as the food stamp program], placing more stringent requirements on states’ award of SNAP benefits with concomitant, virtually immediate effects on the lives, by the federal government‘s estimate, of over one million individuals currently receiving SNAP benefits.” CV 20-119 (BAH), 2020 WL 1236657, at *1 (D.D.C. Mar. 13, 2020). The court specifically noted that the SNAP program was a “joint federal-state effort to reduce hunger.” Id. The court ultimately found that the state plaintiffs in that case had established that they would suffer irreparable harm “in the form of significant administrative burdens and costs, including staffing and training costs, notification costs, and costs from expanding employment and training programs.” Id. at *22. In reaching that conclusion, the court noted that the harms were not “self-inflicted” because “the complained of training costs would ‘directly result from the regulatory changes announced in the [r]ule,” and, as such, could not be cured absent an injunction.12 Id. at *24.
In contrast, the 2020 Rule does not regulate Washington‘s conduct, force Washington to change its policies or practices, or impact Washington law. To the contrary, the 2020 Rule specifically states that it shall not be construed to “supersede State laws.”13 See
2. The 2020 Rule‘s Religious Exemption
Washington lacks standing to challenge the 2020 Rule‘s religious exemption for many of the same reasons that it lacks standing to challenge HHS‘s decision not to define “on the basis of sex.” Washington alleges that the cost of “administrative burdens” and “harm mitigation” measures that Washington will incur “if healthcare providers refuse to provide services on the basis of a religious or conscious belief” confers standing on Washington. (See Wash. Supp. Br. at 6-7.)
The court does not take issue with Washington‘s evidence showing that if healthcare providers or health insurers refuse to provide services to Washingtonians on the basis of the 2020 Rule, then Washington will suffer direct harm. (See, e.g., Todorovich Decl. ¶ 37 (“DOH will incur increased administrative costs for referring people who have been denied care because of protected status or conscience of the scope issue to providers who can provide the services.“), ¶ 38 (“Increases to the cost of care for LGBTQ persons due to loss of benefits, narrower interpretation of coverage and benefits, and higher out-of-pocket costs create more barriers and will increase demand for services and support from the Family Planning Program; the Breast, Cervical, and the Colon Health Program; and the Office of Infectious Disease.“), ¶ 41 (“DOH‘s Family Planning Program will be required to redirect their staff and resources from providing their own services to assisting individuals in determining who among the health care providers in the region will serve LGBTQ patients and women who have had pregnancies terminated in a nondiscriminatory manner.“)). The problem, however, is that this evidence assumes the key premise—that healthcare providers or health insurers will refuse to provide services if the 2020 Rule‘s religious exemption goes into effect. But Washington failed to identify any evidence in the record showing that it is certainly impending that Washington healthcare providers or health insurers will refuse to provide services because of the 2020 Rule‘s religious exemption.14 (See Reply at 1-3; Wash. Supp. Br. at 6-7); see also Azar, 911 F.3d at 572 (finding states had standing to challenge expanded exemptions based on a detailed regulatory impact analysis from HHS and evidence in the record that included “names of specific
Absent concrete evidence showing that the harm Washington fears is impending or substantially likely to occur, the court also rejects Washington‘s claim that the 2020 Rule‘s religious exemption forces Washington to expend resources on harm mitigation matters. See Clapper, 568 U.S. at 416 (“[R]espondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending. . . .“). At this point, Washington‘s proposed harm mitigation measures are voluntary and, as such, not fairly traceable to HHS or the 2020 Rule. See id.
In sum, Washington lacks standing to challenge the 2020 Rule‘s religious exemption for many of the same reasons that Washington lacks standing to challenge the 2020 Rule‘s decision not to define “on the basis of sex.” Thus, the court DENIES Washington‘s motion for a preliminary injunction insofar as it challenges the religious exemption portion of the 2020 Rule for lack of standing.
3. Covered Entities
Washington‘s arguments that it has standing to challenge HHS‘s construction of the scope of entities covered by the 2020 Rule suffer from the same deficiencies. (See Wash. Supp. Br. at 6-7.) Washington again assumes, without evidence, that entities who are no longer subject to
B. Order to Show Cause
Although the court concludes that Washington lacks standing to advance its challenges to the 2020 Rule and denies Washington‘s motion for a preliminary injunction on those grounds, see supra § III.A, HHS did not separately move to dismiss Washington‘s complaint for lack of subject matter jurisdiction or request dismissal in its opposition to Washington‘s motion for a preliminary injunction. (See generally Dkt.; Resp.) The court notes, however, that if Washington lacks Article III standing, then this court lacks subject matter jurisdiction over Washington‘s claims and is obliged to dismiss them under
Accordingly, in light of the court‘s obligation to ensure that Washington has standing under Article III, see DaimlerChrysler Corp., 547 U.S. at 340, the court ORDERS Washington to show cause why this case should not be dismissed for lack of subject matter jurisdiction. Specifically, Washington must advise the court what remains of this case and why this court has subject matter jurisdiction over any remaining portions of
IV. CONCLUSION
For the reasons set forth above, the court concludes that Washington lacks standing to challenge the 2020 Rule‘s definition of “on the basis of sex,” the 2020 Rule‘s incorporation of a religious exemption, and the scope of covered entities under the 2020 Rule, and, as such, DENIES Washington‘s motion for a preliminary injunction (Dkt. # 4). The court also ORDERS Washington to show cause within 10 days of the filing date of this order why this case should not be dismissed for lack of subject matter jurisdiction.
Dated this 28th day of August, 2020.
JAMES L. ROBART
United States District Judge
Notes
an individual‘s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual‘s sex assigned at birth. The way an individual expresses gender identity is frequently called ‘gender expression,’ and may or may not conform to social stereotypes associated with a particular gender. A transgender individual is an individual whose gender identity is different from the sex assigned to that person at birth.
the provision or administration of health-related services, health-related insurance coverage, or other health-related coverage, and the provision of assistance to individuals in obtaining health-related services or health-related insurance coverage. For an entity principally engaged in providing or administering health services or health insurance coverage or other health coverage, all of its operations are considered part of the health program or activity, except as specifically set forth otherwise in this part. Such entities include a hospital, health clinic, group health plan, health insurance issuer, physician‘s practice, community health center, nursing facility, residential or community-based treatment facility, or other similar entity. A health program or activity also includes all of the operations of a State Medicaid program, a Children‘s Health Insurance program, and the Basic Health Program.
Id. at 31,467.
The court also notes that it gives little weight to the Asapansa-Johnson Walker Decision‘s standing analysis. See Asapansa-Johnson Walker, 2020 WL 4749859 at *6-7. The court‘s finding in that case was based on specific facts supplied by two individual, private plaintiffs. See
The court need not decide whether the 2020 Rule is ambiguous, however, because even if the court considered HHS‘s interpretations of the term “sex” in the preamble, there are still two problems with Washington‘s reliance on preamble language. First, the preamble does not state that HHS‘s chosen interpretation of the term “sex” will control application of the 2020 Rule. Instead, the preamble itself states that the 2020 Rule reverts to the plain language in Section 1557 and Title IX, see