Texas v. Equal Emp't Opportunity Comm'n

633 F.Supp.3d 824

State of TEXAS, Plaintiff, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al., Defendants.

2:21-CV-194-Z

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

Signed October 1, 2022

Ryan Daniel Walters, Leif A. Olson, William Thomas Thompson, Office of the Attorney General, Austin, TX, for Plaintiff.

Martin M. Tomlinson, Christopher Robert Healy, Michael Drezner, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants Equal Employment Opportunity Commission, Charlotte A. Burrows, Merrick B. Garland.

Christopher Robert Healy, Martin M. Tomlinson, DOJ-Civ, Civil Division, Washington, DC, for Defendants U.S. Department of Health and Human Services, Xavier Becerra, Lisa J. Pino.

OPINION AND ORDER

MATTHEW J. KACSMARYK, UNITED STATES DISTRICT JUDGE

Before the Court are Defendants'¹ Motion for Summary Judgment ("Motion") (ECF No. 56) and Plaintiff State of Texas's ("Plaintiff") Cross-Motion for Summary Judgment ("Cross-Motion") (ECF No. 61). Having reviewed the parties' briefing and the relevant law, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion and GRANTS IN PART and DENIES IN PART Plaintiff's Cross-Motion.

BACKGROUND

On June 15, 2020, the Supreme Court held Title VII's "because of . . . sex" terminology prohibits "sexual orientation" and "gender identity" discrimination in employment. See generally Bostock v. Clayton County, — U.S. —, 140 S. Ct. 1731, 207 L.Ed.2d 218 (2020). A year to the day, EEOC Chairman Charlotte Burrows issued a "technical assistance document" ("June 15 Guidance") professedly explaining "what the Bostock decision means for LGBTQ + workers (and all covered workers) and for employers across the country" and "the [EEOC's] established legal positions on LGTBQ + -related matters, as voted by the Commission." ECF No. 63-1 at 3. The June 15 Guidance states it is relevant to "[a]pplicants for employment, employees, employers covered by Title VII[, and] related representatives and practitioners." Id. The June 15 Guidance defines "employers covered by Title VII" to include "state . . . government employers with 15 or more employees." Id. at 3, 5.

On March 2, 2022, HHS's Office of Civil Rights issued a similar "Notice and Guidance" ("March 2 Guidance"), detailing "additional information on federal civil rights protections . . . that apply to gender affirming care." ECF No. 64-1 at 2. HHS issued the March 2 Guidance in direct response to a Texas gubernatorial order directing the Texas Department of Family and Protective Services to investigate incidents of sex change procedures performed on minors. See id. at 6 ("[O]n the heels of a discriminatory gubernatorial order in Texas, Health and Human Services (HHS) Secretary Xavier Becerra released the following statement . . . [and] announced several immediate actions HHS is taking actions [sic] to support LGBTQI + youth and further remind Texas and others of the federal protections that exist.").

The March 2 Guidance interprets Section 1557 of the Affordable Care Act to prohibit federally funded entities from "restricting an individual's ability to receive medically necessary care, including gender-affirming care, from their health care provider solely on the basis of their sex assigned at birth or gender identity." Id. at 3. The March 2 Guidance also interprets Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act ("ADA"), warning "[r]estrictions that prevent otherwise qualified individuals from receiving medically necessary care on the basis of their gender dysphoria, gender dysphoria diagnosis, or perception of gender dysphoria may . . . also violate Section 504 and Title II of the ADA." Id.

PROCEDURE

On September 20, 2021, Plaintiff State of Texas sued EEOC, Charlotte Burrows, in her official capacity as Chairman of the EEOC, and Merrick Garland, in his official capacity as Attorney General of the United States. See ECF No. 1. On March 9, 2022, Plaintiff filed an Amended Complaint, adding HHS, Xavier Becerra, in his official capacity as Secretary of the HHS, and Lisa Pino, in her official capacity as Director of HHS's Office for Civil Rights. See ECF No. 31. Plaintiff asks the Court to: (1) declare the June 15 Guidance and March 2 Guidance (collectively "Guidances") unlawful; (2) vacate and set aside the Guidances; and (3) enjoin enforcement or implementation of the Guidances.

In response, Defendants filed motions under Federal Rule of Civil Procedure 12(b)(1), arguing the Court lacks subject-matter jurisdiction. Although the Court largely denied the motions, the Court dismissed Count XI of Plaintiff's Amended Complaint. See generally ECF Nos. 31, 53. Plaintiff and Defendants now separately move the Court for summary judgment, asking the Court to resolve Plaintiff's remaining claims — Counts I-X. See ECF Nos. 56, 61.

Defendants request summary judgment on Plaintiff's remaining claims. See ECF Nos. 56, 57. Defendants argue the Guidances: (1) accord with the law;² (2) are not arbitrary and capricious; and (3) do not constitute "substantive rules" requiring publication in the Federal Register and notice-and-comment rulemaking procedures. Plaintiff also moves for summary judgment on its remaining claims. Plaintiff argues: (1) the June 15 Guidance does not accord with the law as it diverges from Title VII and Bostock; (2) the March 2 Guidance does not accord with law as it diverges from Section 1557 and Bostock; (3) the Guidances are arbitrary and capricious; (4) the Guidances are invalid substantive rules; (5) the June 15 Guidance violates the First Amendment; (6) EEOC violated the Administrative Procedure Act ("APA") by failing to follow Title VII's requirement and EEOC agency rules; and (7) EEOC violated the APA by failing to publish substantive rules of general applicability under the Freedom of Information Act ("FOIA"). A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a).

APPLICATION: Bostock (Counts I, X)

The pending motions sound in the APA, Title VII, First Amendment, Eleventh Amendment, and C.F.R. But the crux of the parties' disagreement distills down to one question: is the non-discrimination holding in Bostock cabined to "homosexuality and transgender status" or does it extend to correlated conduct — specifically, the sex-specific: (1) dress; (2) bathroom; (3) pronoun; and (4) healthcare practices underlying the Guidances and the Amended Complaint? See 140 S. Ct. at 1737-38, 1741-49, 1753-54 (emphasis added); ECF No. 31 at 8 ("The issues in Bostock were exclusively related to discrimination based on status; no discrimination based on conduct was at issue."); ECF No. 57 at 18 ("Texas poses a false distinction between status and conduct." (cleaned up)); ECF No. 67 at 10 ("The bulk of Texas's argument reduces to the notion that Title VII narrowly protects only certain 'statuses' [but not] 'conduct' related to a given status." (cleaned up)); ECF No. 63-1 at 7-8. On balance, Plaintiff has the better arguments.³ The Court thus DENIES Defendants' Motion and GRANTS Plaintiff's Cross-Motion with respect to Counts I and X.

1. Plaintiff's reading of Bostock tracks Justice Gorsuch's words and reasoning: Title VII prohibits employment discrimination because of sexual orientation and gender-identity status — i.e., "being homosexual," "being transgender" — but not necessarily all correlated conduct.

On its face, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination "because of . . . sex." See generally 42 U.S.C. § 2000e-2. In Bostock, the Supreme Court held Title VII's "because of sex" terminology should be read to prohibit "sexual orientation" and "gender identity" discrimination in employment. See generally 140 S. Ct. 1731. More precisely, the Supreme Court held: "An employer who fires an individual merely for being gay or transgender defies the law." Id. at 1754 (emphasis added). Though human sexuality correlates to myriad attractions, identifications, actions, and relationships, the Court cabined its definitions and descriptions of "being homosexual" and "being transgender" to status. Id. at 1737-38, 1741-19, 1753-54. Pointedly, Justice Gorsuch's majority opinion repeatedly joined the terms "status" and "for being" in the sentences, paragraphs, and sections discussing these concepts:

• 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.

• [E]mployers might describe their actions as motivated by their employees' homosexuality or transgender status. But . . . . [w]hen an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex.

• An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men and female employees for being attracted to women.

• By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women.

Id. (emphasis added). Finally, in each instance, Justice Gorsuch equated the status "being" with "attraction" (homosexual) and "identification" (transgender) — not all correlated conduct. Id.

In total, Justice Gorsuch referenced "homosexuality or transgender status" fifteen times. Id. at 1737-54. Each and every time, his definition and description of "status" tracks with Plaintiff's reading of Bostock: Title VII prohibits employment discrimination against an individual "for being homosexual," "for being transgender" — i.e., "men for being attracted to men," "women for being attracted to women," and "persons with one sex identified at birth and...