Order Blocking Transgender Care Rule Improper, HHS Tells Court

A lower court order blocking the federal government from allegedly forcing Christian medical care providers to treat or pay for transgender-related care must be lifted because it affects only hypothetical future conduct, HHS and transgender advocates said.

The injunction issued by Judge Reed C. O’Connor in 2021 permanently prohibits Health and Human Services Secretary Xavier Becerra, HHS, and anyone acting in concert with it from interpreting Obamacare’s anti-discrimination protections and issuing regulations to require providers involved in the dispute to perform or provide insurance coverage for gender-transition procedures or abortion care.

But the suit originally involved only a 2016 rule clarifying that the Affordable Care Act’s prohibition on sex-based discrimination includes bias against people on the basis of their gender identity, transgender status, or termination of a pregnancy, HHS said in its opening brief appealing the order.

O’Connor, of the U.S. District Court for the Northern District of Texas, largely vacated that rule’s challenged provisions earlier in the case, and HHS has since rescinded and replaced them, the agency told the U.S. Court of Appeals for the Fifth Circuit. The judge can’t grant the Christian providers any additional effective relief against the 2016 rule, and thus the case is moot, it said.

But O’Connor nevertheless issued a 2021 order that blocks HHS from taking future action against the providers based on rules or interpretations having the same effect as the 2016 rule, HHS said. That order was improper, the agency said.

Providers can’t “reanimate” the case by claiming that their fight against the 2016 rule implicitly included a challenge against future enforcement of Section 1557 itself, HHS said. The providers never asserted that the law, as applied in the transgender care context, would violate the Religious Freedom Restoration Act, it said.

A RFRA claim seeking to block a future HHS from enforcing Section 1557 to allegedly force providers to provide care against their religious beliefs would be nothing more than a “broad challenge to a future hypothetical application” of the law, HHS said. The agency hasn’t threatened or initiated any enforcement activity on this ground, it said in Monday’s brief.

The American Civil Liberties Union of Texas and River City Gender Alliance, which joined the case to defend the rule, also urged the Fifth Circuit to overturn O’Connor’s injunction.

The district court judge exceeded his authority, the groups said in their opening appeal brief. Broadening the court’s original holding blocking the 2016 rule severely prejudices the defendants, who never had an opportunity to fully litigate the broader challenge, they said Monday.

Additionally, courts have no power to issue advisory opinions about regulations that haven’t yet been enacted, ACLUT and River City said.

Becket Fund for Religious Liberty represents the providers. The U.S. Department of Justice represents HHS. American Civil Liberties Union Foundation represents ACLUT and River City.

The case is Franciscan Alliance, Inc. v. Becerra, 5th Cir., No. 21-11174, opening brief filed 3/28/22.