5th Circuit Avoids Ruling on Merits of Religious Medical Providers’ Challenge to HHS Sex Discrimination Rule

The Fifth Circuit on Thursday declined to decide on the merits of an appeal by religious medical care providers challenging a now-repealed 2016 Department of Health and Human Services (HHS) rule that prohibited discrimination based on “termination of pregnancy” and “gender identity,” concluding that the panel cannot properly judge the matter given changes to the challenged rule and to the legal interpretation of sex discrimination. The plaintiffs appealed to the circuit court despite a favorable judgment by the Northern District of Texas, where the case will return for further proceedings.

Franciscan Alliance Inc., Christian Medical and Dental Society, and Specialty Physicians of Illinois LLC filed suit in 2016 in the Northern District of Texas against HHS and then-Secretary Alex M. Azar II over allegations that an HHS regulation statutorily based in Title IX violated the Administrative Procedure Act in that its definition of “sex discrimination” was inconsistent with the statute.

“HHS redefines ‘sex’ to include ‘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 plaintiffs said in their complaint. “Thus, with a single stroke of the pen, HHS has created a massive new liability for thousands of healthcare professionals unless they cast aside their medical judgment and perform controversial and even harmful medical transition procedures.”

The plaintiffs also lodged claims that the rule violated the Religious Freedom Restoration Act in that it “forces” medical providers to perform procedures that go against their religion. Although the plaintiffs “eagerly provide comprehensive care to society’s most vulnerable populations,” they argued, “their religious beliefs will not allow them to perform medical transition procedures that can be deeply harmful to their patients.”

Although the district court agreed with the plaintiffs and ordered the challenged provisions of the rule vacated, it did not grant the permanent injunction that the plaintiffs requested.

In its per curiam opinion, the Fifth Circuit said the merits of the plaintiffs’ appeal are hazy because of various legal shifts since the 2016 rule, including HHS repealing the 2016 rule and replacing it with a new one in 2020, Bostock v. Clayton County interpreting “sex discrimination” to include discrimination based on gender identity, an executive order by President Joe Biden promising to apply Bostock’s definition to other statutes, and considerations by HHS to again revise and replace the rule, among other changes, the court explained.

“These developments keep us from reaching the merits of this appeal,” the court said. “Whether the providers are pressing the same claim before us as they did in the district court is unclear, as are the jurisdictional consequences of the evolving state of the law.”

However, the appellate court left open the possibility of the case returning upstream, concluding that “(i)f a party to this case later files a notice of appeal, the appeal shall return to this panel.”

The appellants are represented by the Becket Fund for Religious Liberty and HHS by the Department of Justice. Intervenors American Civil Liberties Union of Texas and River City Gender Alliance are represented by the ACLU Foundation.