Religious Sisters Mercy v. Becerra

55 F.4th 583

The RELIGIOUS SISTERS OF MERCY; Sacred Heart Mercy Health Care Center, (Alma, MI); SMP Health System; University of Mary ; Catholic Benefits Association ; Diocese of Fargo; Catholic Charities of North Dakota; Catholic Medical Association Plaintiffs - Appellees

State of North Dakota Plaintiff

v.Xavier BECERRA, Secretary of the United States Department of Human Services ; United States Department of Health and Human Services; Charlotte Burrows, Chair of the United States Equal Employment Opportunity Commission; United States Equal Employment Opportunity Commission Defendants - Appellants

No. 21-1890

United States Court of Appeals, Eighth Circuit.

Submitted: December 15, 2021

Filed: December 9, 2022

Counsel who presented argument on behalf of the appellants and appeared on the brief was Ashley Cheung Honold, of Washington, DC. The following attorney(s) appeared on the appellants brief; Marleigh Dover, formerly of Washington, DC., Charles W. Scarborough, of Washington, DC.

Counsel who presented argument on behalf of the appellees The Religious Sisters of Mercy, Sacred Heart Mercy Health Care Center, SMP Health System and University of Mary and appeared on the brief was Luke W. Goodrich, of Washington, DC. The following attorney(s) appeared on the appellees The Religious Sisters of Mercy, Sacred Heart Mercy Health Care Center, SMP Health System and University of Mary brief; Mark Leonard Rienzi, of Washington, DC., Joseph C. Davis, of Washington, DC., Daniel Lawrence Chen, of Washington, DC.

Counsel who presented argument on behalf of the appellees Catholic Medical Association, Catholic Benefits Association, Diocese of Fargo and Catholic Charities of North Dakota and appeared on the brief was Ian Seth Speir, of Colorado Springs, CO. The following attorney(s) appeared on the appellees Catholic Medical Association, Catholic Benefits Association, Diocese of Fargo and Catholic Charities of North Dakota brief; Leonard Martin Nussbaum, of Colorado Springs, CO.

Before SMITH, Chief Judge, GRUENDER and KOBES, Circuit Judges.

SMITH, Chief Judge.

This case concerns an action by "a coalition of entities affiliated with the Catholic Church ... challeng[ing] the implementation of Section 1557 of the Patient Protection and Affordable Care Act (‘ACA’), a statute that prohibits certain forms of discrimination in healthcare." Religious Sisters of Mercy v. Azar , 513 F. Supp. 3d 1113, 1122 (D.N.D. 2021), judgment entered sub nom. Religious Sisters of Mercy v. Cochran , No. 3:16-cv-00386, 2021 WL 1574628 (D.N.D. Feb. 19, 2021). According to the plaintiffs, "the Department of Health and Human Services (‘HHS’) and, derivatively, the Equal Employment Opportunity Commission (‘EEOC’) interpret Section 1557 and related antidiscrimination laws in a way that compels them to perform and provide insurance coverage for gender transitions." Id. The district court held "that the [Religious Freedom Restoration Act of 1993 (RFRA)] entitles the ... [p]laintiffs to permanent injunctive relief from the provision or coverage of gender-transition procedures." Id. On appeal, HHS and the EEOC (collectively, "the government") challenge the district court's grant of declaratory and permanent injunctive relief to the plaintiffs, arguing that the district court erred in determining "that plaintiffs had demonstrated standing, ripeness, and imminent irreparable injury sufficient to justify permanent injunctive relief." Appellants’ Br. at ii. We affirm.

I. Background

A. Statutes Prohibiting Sex-Based Discrimination

Section 1557 of the ACA provides, in relevant part, that a federally funded or administered health program or activity is prohibited from denying benefits to, or subjecting to discrimination, an individual "on [a] ground prohibited under ... title IX of the Education Amendments of 1972 ( 20 U.S.C. 1681 et seq. )." 42 U.S.C. § 18116(a). Section 1557 adopts the enforcement mechanisms available under the incorporated statutes, including Title IX. Id. Section 1557 vests the Secretary of HHS with discretion to promulgate implementing regulations. Id. § 18116(c) ("The Secretary [of HHS] may promulgate regulations to implement this section.").

In turn, Title IX states that "[n]o person in the United States shall, on the basis of sex , be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a) (emphasis added). "In short, the statute bars ... sex-based discrimination." Portz v. St. Cloud St. Univ. , 16 F.4th 577, 580 (8th Cir. 2021) (internal quotation marks omitted). But Title IX exempts from its restrictions "an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization." 20 U.S.C. § 1681(a)(3). Title IX "authoriz[es] federal administrative enforcement by terminating the federal funding of any noncomplying recipient, [ 20 U.S.C.] § 1682(1), or ‘by any other means authorized by law,’ § 1682(2)." Nat'l Collegiate Athletic Ass'n v. Smith , 525 U.S. 459, 467 n.5, 119 S.Ct. 924, 142 L.Ed.2d 929 (1999). The Supreme "Court has [also] recognized an implied private right of action." Fitzgerald v. Barnstable Sch. Comm. , 555 U.S. 246, 255, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009).

In addition to Title IX and Section 1557, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an applicant or employee "because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). Title VII "limit[s] ... covered ‘employer[s]’ to those with 15 or more employees." Fort Bend Cnty. v. Davis , ––– U.S. ––––, 139 S. Ct. 1843, 1850, 204 L.Ed.2d 116 (2019) (third alteration in original) (quoting Arbaugh v. Y & H Corp. , 546 U.S. 500, 503–04, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting 42 U.S.C. § 2000e(b) )). An employer who violates Title VII could face an administrative enforcement action or private suit for compensatory damages, punitive damages, injunctive relief, attorney's fees, and other relief. See 42 U.S.C. § 2000e-5(g) ; id. § 1981a(b). The EEOC "is empowered ... to prevent any person from engaging in any unlawful employment practice" under Title VII. Id. § 2000e-5(a). "We have ... held that ‘the Supreme Court's interpretation of Title VII properly informs our examination of Title IX.’ " Du Bois v. Bd. of Regents of Univ. of Minn. , 987 F.3d 1199, 1203 (8th Cir. 2021) (quoting Wolfe v. Fayetteville, Ark. Sch. Dist ., 648 F.3d 860, 866 (8th Cir. 2011) (applying Title VII jurisprudence to a Title IX discrimination claim)).

B. 2016 Rule

In 2016, HHS promulgated a "final rule implement[ing] Section 1557 of the Affordable Care Act (ACA) (Section 1557)." Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,375, 31,376 (May 18, 2016) (hereinafter, "2016 Rule"). The 2016 Rule defined "[c]overed entity" as "[a]n entity that operates a health program or activity, any part of which receives Federal financial assistance." Id. at 31,466. It defined "[h]ealth program or activity" as "the provision or administration of health-related services, health-related insurance coverage, or other health-related coverage." Id. at 31,467. For entities "principally engaged" in those endeavors, the regulation extended to "all of [their] operations." Id. at 31,438. In the 2016 Rule, HHS "concluded that almost all practicing physicians in the United States are reached by Section 1557 because they accept some form of Federal remuneration or reimbursement apart from Medicare Part B." Id. at 31,446. HHS identified 180 insurers that offered health plans through ACA or state-based marketplace as affected by the regulation. Id. at 31,448. It also estimated "about 133,343 [healthcare] facilities" were covered entities. Id. at 31,445.

Consistent with Title IX, the 2016 Rule prohibited discrimination "on the basis of ... sex." Id. at 31,469. The 2016 Rule defined "[o]n the basis of sex" as "includ[ing] ... sex stereotyping[ ] and gender identity." Id. at 31,467. HHS based the definition of "on the basis of sex" "upon existing regulation and previous Federal agencies’ and courts’ interpretations that discrimination on the basis of sex includes discrimination on the basis of gender identity and sex stereotyping." Id. at 31,388. It defined "[s]ex stereotypes" as "includ[ing] the expectation that individuals will consistently identify with only one gender and that they will act in conformity with the gender-related expressions stereotypically associated with that gender." Id. at 31,468. It defined "[g]ender identity" as

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.

Id. at 31,467.

The 2016 Rule required a covered entity to

treat individuals consistent with their gender identity, except that a covered entity may not deny or limit health services that are ordinarily or exclusively available to individuals of one sex, to a transgender individual based on the fact that the individual's sex assigned at birth, gender identity, or gender otherwise recorded is different from the one to which such health services are ordinarily or exclusively available.

Id. at 31,471. "For example, .... [a] provider specializing in gynecological services that previously declined to provide a medically necessary hysterectomy for a transgender man would have to revise its policy to provide the procedure for transgender individuals in the same manner it provides the procedure for other individuals." Id. at 31,455.

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