Neese v. Becerra

SUSAN NEESE et al., Plaintiffs, v. XAVIER BECERRA, in his official capacity as the Secretary of the United States Department of Health and Human Services, et al., Defendants.

No. 2:21-CV-163-Z

United States District Court, N.D. Texas, Amarillo Division

April 26, 2022

OPINION AND ORDER

MATTHEW J. KACSMARYK UNITED STATES DISTRICT JUDGE

Justice Alito predicted this day would come: “Although the Court does not want to think about the consequences of [Bostock v. Clayton County], we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court's reasoning.” 140 S.Ct. 1731, 1783 (2020) (Alito, J., dissenting). With similar prescience, Justice Kavanaugh identified the category of controversy at issue here: “Healthcare benefits may emerge as an intense battleground under the Court's holding.” Id. at 1781 (Kavanaugh, J., dissenting) (collecting cases) (emphasis added). With poetic force, Justice Alito likened Bostock to a “pirate ship” sailing under a “textualist flag, ” but representing “a theory of statutory interpretation that Justice Scalia excoriated - the theory that courts should ‘update' old statutes so that they better reflect the current values of society.” Id. at 1755-56 (Alito, J., dissenting). Today, the metaphorical “pirate ship” arrives at an inland port: the Amarillo Division of the Northern District of Texas.

Before the Court is Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint (“Motion”) (ECF No. 16), filed on December 14 2021.^[1] In support of two claims, Plaintiffs argue that Section 1557 of the Affordable Care Act and Bostock “do not prohibit discrimination on account of sexual orientation and gender identity” if the healthcare providers “would have acted in the same manner had the patient had been a member of the opposite biological sex.” ECF No. 11 at 10. Having considered the pleadings, Bostock, and relevant cases, the Court DENIES Defendants' Motion.

BACKGROUND

Section 1557 of the Affordable Care Act prohibits discrimination on the basis of “sex.” See 42 U.S.C. § 18116(a) (incorporating into Section 1557, inter alia, Title IX's prohibition of discrimination “on the basis of sex, ” 20 U.S.C. § 1681(a)). In Bostock, the Supreme Court held that Title VII's “because of. .. sex” terminology should be read to prohibit “sexual orientation” and “gender identity” (combined “SOGI”) discrimination.^[2] See generally 140 S.Ct. 1731. Citing Bostock, the Department of Health and Human Services (“HHS”) announced it would “interpret and enforce” Section 1557's prohibition on discrimination “on the basis of sex” to include SOGI. See generally Department of Health and Human Services, Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, 86 Fed.Reg. 27, 984 (May 25, 2021) (“Notification”).

Plaintiffs -Texas and California-based physicians - allege Defendants misread Bostock and that healthcare providers may continue to discriminate on the basis of SOGI, “so long as one does not engage in ‘sex' discrimination when doing so.” ECF No. 11 at 5. Specifically, Plaintiffs aver that neither Section 1557 nor Bostock prohibit such discrimination, “as long as they would have acted in the exact same manner if the patient had been a member of the opposite biological sex.” ECF No. 17 at 16. Plaintiffs “object only to the Secretary's claim that Bostock defined ‘sex' discrimination to encompass all forms of discrimination on the basis of sexual orientation or gender identity.” Id. Plaintiffs state they “fully intend to comply with Bostock and its interpretation of‘sex.'” Id.

Plaintiffs have discriminated on the basis of sex in their medical practices, and each receives federal money subject to Section 1557. See generally ECF No. 11. Dr. Neese “has treated patients suffering from gender dysphoria in the past and has on occasion prescribed hormone therapy for them.” Id. at 5. But Dr. Neese “does not believe that hormone therapy or sex-change operations are medically appropriate for everyone who asks forthem, even if those individuals are suffering from gender dysphoria, and she will on occasion decline to prescribe hormone therapy or provide referrals for sex-change operations.” Id. at 6. “Dr. Neese is categorically unwilling to prescribe hormone therapy to minors who are seeking to transition, and she is equally unwilling to provide referrals to minors seeking a sex-change operation.” Id. She “believes that it is unethical to provide ‘gender affirming' care to transgender patients in situations where a patient's denial of biological realities will endanger their life or safety.” Id.

Plaintiffs allege “Dr. Neese has treated many transgender patients ... in the past, and she expects to continue doing so in the future.” Id. Dr. Neese claims she “is likely to encounter minor transgender patients who will request hormone therapy and referrals for sex-change operations that she is unwilling to provide, as well as adult transgender patients who will deny or dispute their need for preventive care that corresponds to their biological sex, and she intends to provide care to these individuals in a manner consistent with her ethical beliefs.” Id.

Dr. Hurly “recognizes that some biological men may identify as women (and vice versa).” Id. In his practice, Dr. Hurly “has encountered situations ... when he must insist that a patient acknowledge his biological sex rather than the gender identity that he asserts.” Id. at 7. Plaintiffs provide an example: Dr. Hurly “once diagnosed a biological male patient with prostate cancer, but the patient refused to accept Dr. Hurly's diagnosis because he identified as a woman and insisted that he could not have a prostate.” Id. Dr. Hurly “explain[ed] to this patient that he was indeed a biological man with a prostate, and that he needed to seek urgent medical treatment for his prostate cancer.” Id. Plaintiffs claim “Dr. Hurly has treated transgender patients in the past, and he expects to continue doing so in the future.” Id. Plaintiffs further allege: “Dr. Hurly is likely to encounter transgender patients who will deny or dispute their need for health care that corresponds to their biological sex, and he intends to provide care to these individuals in a manner consistent with his ethical beliefs.” Id.

The last Plaintiff, Dr. Barke, “is unwilling to prescribe hormone therapy to minors who are seeking to transition, and he is unwilling to provide referrals to minors seeking a sex-change operation.” Id. He “believes that it is unethical to provide ‘gender affirming' care to transgender patients in situations where a patient's denial of biological realities will endanger their life or safety.” Id. at 8. “Dr. Barke has treated many transgender patients ... in the past, and he expects to continue doing so in the future.” Id. He “is likely to encounter minor transgender patients who will request hormone therapy and referrals for sex-change operations that he is unwilling to provide, as well as adult transgender patients who will deny or dispute their need for preventive care that corresponds to their biological sex.” Id. Dr. Barke “intends to provide care to these individuals in a manner consistent with his ethical beliefs, ” Id.

Plaintiffs bring two claims. First, Plaintiffs ask the Court to hold unlawful and set aside the Notification and enjoin Defendants from enforcing the interpretation of Section 1557 detailed in the Notification. Id. at 10. Second, Plaintiffs ask the Court to declare Section 1557 does not prohibit discrimination on the basis of SOGI. Id. They argue instead it only prohibits “sex” discrimination, which means a provider would have acted differently towards an identically situated member of the opposite biological sex. Id.

STANDARDS OF REVIEW

Federal courts are courts of limited jurisdiction; they possess only power authorized by the Constitution and federal statutes. Xitronix Corp. v. KLA-Tencor Corp., 916 F, 3d 429 435 (5th Cir. 2019). “The requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception.” Id. (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998)).

When a motion to dismiss for lack of subject-matter jurisdiction “is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). When a complaint could be dismissed under Rule 12(b)(1) or 12(b)(6), “the court should dismiss only on the jurisdictional ground[, ] . . . without reaching the question of failure to state a claim.” Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). Doing so avoids the issuance of an advisory opinion and prevents a court lacking jurisdiction “from prematurely dismissing a case with prejudice.” Ramming, 281 F.3d at 161; Steel Co., 523 U.S. at 101.

“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.'” In re Katrina Canal Breaches Litig, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of the cause of action will not do.” Twombly, 550 U.S. at 555 (internal marks omitted).

“Factual allegations must be...