Whitman-Walker Clinic, Inc. v. U.S. Department of Health and Human Services

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

WHITMAN-WALKER CLINIC, INC., et

al.,

Plaintiffs,

v. Civil Action No. 20-1630 (JEB)

U.S. DEPARTMENT OF HEALTH AND

HUMAN SERVICES, et al.,

Defendants.

MEMORANDUM OPINION

In an effort to improve access to health care for LGBTQ individuals, the Department of

Health and Human Services in 2016 promulgated a Rule that offered a bevy of protections for

such patients. Those included explicit prohibitions on discrimination on the basis of gender

identity or sex stereotyping, limits on exemptions from providing treatment that certain religious

entities could invoke, proscriptions of categorical coverage exclusions, and a number of others.

Believing that many of these protections were either unnecessary or misguided, the current

administration has recently issued a Rule that revises or repeals the 2016 Rule in significant

respects.

Concerned by this change in policy, private health-care facilities that provide services to

LGBTQ people, LGBTQ-services organizations, national associations of health professionals,

and individual physicians and behavioral-health providers have joined forces to bring suit

challenging the new Rule under both the Administrative Procedure Act and various

constitutional provisions. They now ask this Court to preliminarily enjoin the measure while this

litigation proceeds.

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As the daunting length of this Opinion suggests, the multiple issues they raise and their

ability to do so pose myriad thorny questions that require extensive analysis. The Court

ultimately concludes that Plaintiffs have standing to level challenges to certain provisions of the

2020 Rule, but not others, and that they are likely to succeed (and will suffer irreparable harm)

on two central claims: first, that the 2020 Rule arbitrarily and capriciously eliminated “sex

stereotyping” from the prior Rule’s definition of “discrimination on the basis of sex”; and

second, that it improperly incorporated Title IX’s exemption of certain religious organizations

from the statute’s nondiscrimination mandate. The Court, consequently, will grant Plaintiffs’

Motion in part and enjoin HHS from implementing these two provisions during the pendency of

this case.

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Table of Contents

I. Background ............................................................................................................................. 5

A. Statutory Background .......................................................................................................... 5

B. Regulatory Background ....................................................................................................... 6

1. 2016 Rule ......................................................................................................................... 6

2. 2020 Rule ......................................................................................................................... 9

3. Bostock ........................................................................................................................... 12

C. The Instant Litigation ......................................................................................................... 13

II. Legal Standard ....................................................................................................................... 14

III. Standing ................................................................................................................................. 15

A. Organizational Standing..................................................................................................... 18

1. Legal Standard................................................................................................................ 18

2. Application to Claims..................................................................................................... 20

a. Common-Injury Claims .............................................................................................. 21

i. Injury-in-Fact .......................................................................................................... 21

ii. Causation and Redressability .................................................................................. 27

(a) Elimination of 2016 Rule’s Definition of Sex Discrimination ........................ 27

(b) Incorporation of Title IX’s Religious Exemption............................................ 34

(c) Section 1554 and Establishment Clause .......................................................... 35

b. Additional Organizational-Injury Claims ................................................................... 36

i. Elimination of Prohibition on Categorical Coverage Exclusions ........................... 36

ii. Elimination of Notice Requirements ...................................................................... 38

iii. Narrowing Scope of Covered Entities .................................................................... 41

iv. Section 1557 Legal Standard .................................................................................. 43

B. Third-Party Standing .......................................................................................................... 45

IV. Analysis ................................................................................................................................. 50

A. Likelihood of Success on the Merits .................................................................................. 51

1. Elimination of 2016 Rule’s Definition of Sex Discrimination ...................................... 51

2. Incorporation of Title IX’s Religious Exemption .......................................................... 62

3. Elimination of Prohibition on Categorical Coverage Exclusions .................................. 67

4. Elimination of Notice Requirements .............................................................................. 73

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5. Section 1554 ................................................................................................................... 79

6. Constitutional Claims ..................................................................................................... 81

a. Equal Protection ......................................................................................................... 81

b. Substantive Due Process ............................................................................................. 83

c. Free Speech................................................................................................................. 83

d. Establishment Clause.................................................................................................. 84

B. Irreparable Harm ................................................................................................................ 85

C. Balance of Equities and Public Interest ............................................................................. 93

V. Remedy .................................................................................................................................. 95

VI. Conclusion ........................................................................................................................... 101

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I. Background

The Court begins with a brief overview of the relevant statutory background, then turns

to the various regulatory actions at issue, and concludes with a history of the current litigation.

A. Statutory Background

Passed in 2010, the Patient Protection and Affordable Care Act (ACA) is “a

comprehensive national plan to provide universal health insurance coverage” across the

nation. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 583 (2012). It adopted a series of

reforms to “expand coverage in the individual health insurance market,” many of which were

designed to protect consumers and make quality health care more broadly accessible. King v.

Burwell, 135 S. Ct. 2480, 2485 (2015). An important component of the ACA’s effort to ensure

the prompt and effective provision of health care to all individuals — and of particular relevance

for the present case — is the statute’s express anti-discrimination mandate, which draws from

protections embodied in four longstanding civil-rights laws. Section 1557 provides, as pertinent

here:

Except as otherwise provided for in this title (or an amendment made by this title),

an individual shall not, on the ground prohibited under title VI of the Civil Rights

Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of

1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101

et seq.), or section [504 of the Rehabilitation Act of 1973 (29 U.S.C. 794)], be

excluded from participation in, be denied the benefits of, or be subjected to

discrimination under, any health program or activity, any part of which is receiving

Federal financial assistance, including credits, subsidies, or contracts of insurance,

or under any program or activity that is administered by an Executive Agency or

any entity established under [Title I of the ACA] (or amendments). The

enforcement mechanisms provided for and available under such title VI, title IX,

section [504], or such Age Discrimination Act shall apply for purposes of violations

of this subsection.

42 U.S.C. § 18116(a).

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By outlawing discrimination “on the ground prohibited” by Title IX, Section 1557 bars

discrimination “on the basis of sex.” See 20 U.S.C. § 1681(a) (Title IX). It also forbids

discrimination based on race, color, national origin, age, and disability. See 42 U.S.C. § 2000d

(Title VI); id. § 6102 (Age Discrimination Act); 29 U.S.C. § 794 (Rehabilitation Act). These

prohibitions sweep broadly, applying to “any health program or activity” receiving federal

funding, as well as to “any program or activity that is administered by an Executive Agency or

any entity established under [Title I of the ACA].” 42 U.S.C. § 18116(a). Section 1557 likewise

adopts the “enforcement mechanisms” available under the four incorporated statutes, instructing

that they “shall apply for purposes of violations.” Id. Finally, it provides that the Secretary of

HHS “may” promulgate implementing regulations. Id. § 18116(c).

B. Regulatory Background

1. 2016 Rule

Exercising that delegation of authority, HHS published a rule on May 18, 2016, to

“clarif[y] and codif[y] existing nondiscrimination requirements and set[] forth new standards to

implement Section 1557.” Nondiscrimination in Health Programs and Activities, 81 Fed. Reg.

31,375, 31,376 (May 18, 2016). In doing so, the agency devoted particular attention to the

statute’s prohibition on discrimination based on sex and well-documented challenges

experienced by LGBTQ individuals seeking access to health care. The agency reported that for

“transgender individuals, a major barrier to receiving care is a concern over being refused

medical treatment based on bias against them.” Id. at 31,460. In one study, approximately 27%

of transgender respondents reported that they had been refused needed health care. Id. A 2011

survey likewise revealed that 25% of transgender individuals had experienced harassment in

medical settings. Id. These findings supported the belief that transgender individuals who have

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suffered such discriminatory treatment “often postpone or do not seek needed health care, which

may lead to negative health consequences.” Id. HHS also noted that many insurance or other

health-care providers maintained explicit exclusions of coverage for all care related to gender

dysphoria — a condition characterized by distress arising from a conflict between one’s birth-

assigned gender and gender identity — or associated with gender transition. Id. at 31,429.

The 2016 Rule thus introduced a host of measures in response to these and other

perceived barriers to accessing quality and necessary health care. Several are of particular

relevance to the present litigation.

First, the 2016 Rule defined its prohibition on sex discrimination — as incorporated by

way of Title IX — to include “discrimination on the basis of . . . sex stereotyping, and gender

identity.” 81 Fed. Reg. at 31,467 (formerly codified at 45 C.F.R. § 92.4). The Rule explained

that “gender identity” is “an individual’s internal sense of gender, . . . which may be different

from an individual’s sex assigned at birth.” Id. It defined “sex stereotypes,” in turn, to include

“stereotypical notions of masculinity or femininity,” as well as “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 (formerly

codified at 45 C.F.R. § 92.4). HHS explained that such “clarification” regarding the scope of

Section 1557’s sex-discrimination prohibition was consistent with prior agency and judicial

interpretation, and was necessary to combat continued discrimination experienced by transgender

individuals seeking access to health care. Id. at 31,388, 31,460.

In addition, the 2016 Rule declined to expressly incorporate Title IX’s exemption of

certain religious entities from its prohibition on sex discrimination in the event of a conflict

between such prohibition and the entity’s religious tenets. As HHS explained, “Section 1557

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itself contains no religious exemption.” Id. at 31,380. The agency also cited concerns

surrounding wholesale importation of Title IX’s exemption into the broader health-care context,

worrying that an exemption could “result in a denial or delay in the provision of health care to

individuals” and “discourag[e] [them] from seeking necessary care.” Id. While the Rule made

clear that it did not incorporate Title IX’s religious exemption, it nonetheless instructed that

Section 1557’s nondiscrimination mandate would not apply in the event of a conflict with federal

statutory protections for religious freedom and conscience. Id. at 31,466 (formerly codified at 45

C.F.R. § 92.2(b)(2)).

Several other provisions warrant brief mention, as they also appear in this litigation. The

2016 Rule prohibited insurers from having or implementing “categorical coverage exclusion[s]

or limitation[s] for all health services related to gender transition.” Id. at 31,471–72 (formerly

codified at 45 C.F.R. § 92.207(b)(4)). It also required health-care providers and other covered

entities to post notices and short, written “taglines” — in fifteen different languages in certain

significant publications and in conspicuous physical locations — informing patients of their

nondiscrimination rights and the availability of language-assistance services. Id. at 31,469

(formerly codified at 45 C.F.R. § 92.8). Finally, the Rule clarified the scope of entities to which

Section 1557 applied — namely, every health program or activity that receives federal funding,

is administered by HHS, or is administered by an entity established under Title I of the ACA. Id.

at 31,466 (formerly codified at 45 C.F.R. 92.2(a)).

One additional piece of background regarding the 2016 Rule merits mention. In

December 2016, several months after the Rule’s promulgation, a federal court in the Northern

District of Texas issued a nationwide preliminary injunction barring HHS from enforcing its

definition of sex discrimination insofar as it included “gender identity” (but not sex

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stereotyping). Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660, 695–96 (N.D. Tex.

2016). The court reasoned that the statutory term “sex,” as deployed in Title IX and incorporated

into Section 1557, “refer[red] to the biological differences between males and females” and thus

did not encompass gender identity. Id. at 688–89. It went a step further in October 2019 when it

vacated that portion of the 2016 Rule and remanded it for “further consideration.” Franciscan

Alliance, Inc. v. Azar, 414 F. Supp. 3d 928, 945 (N.D. Tex. 2019). Critically, as the court

subsequently clarified, such vacatur applied only “insofar as the Rule defines ‘On the basis of

sex’ to include gender identity . . . .” ECF No. 43 (Pl. Reply), Exh. 4 (Franciscan Alliance

Order) at ECF p. 3. “The remainder of 45 C.F.R. § 92,” it made clear, “remains in effect.” Id.

2. 2020 Rule

The Obama administration having departed, in June 2019, HHS issued a notice of

proposed rulemaking that suggested “substantial revisions” to the 2016 Rule. See

Nondiscrimination in Health and Health Education Programs or Activities, 84 Fed. Reg. 27,846,

27,848 (June 14, 2019). Many of the agency’s proposed changes became reality when it

promulgated the final 2020 Rule just over a year later. See Nondiscrimination in Health and

Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160 (June 19,

2020). Because the Court explains each challenged provision in additional detail when

considering the merits of Plaintiffs’ various claims, the briefest of discussions of the relevant

specific changes will suffice for present purposes.

First, the 2020 Rule “repeal[ed] the 2016 Rule’s definition of ‘on the basis of sex,’”

which — as a reminder — explicitly prohibited discrimination based on sex stereotyping and

gender identity. Id. at 37,178. HHS did so on the belief that the prior definition “exceeded the

scope of the authority delegated by Congress in Section 1557,” imposing legal requirements

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“that cannot be justified by the text of Title IX.” Id. at 37,161–62; see also, e.g., id. at 37,191

(explaining that “the term ‘on the basis of . . . sex’ in Section 1557 does not encompass

discrimination on the basis of gender identity”). As a result of this wholesale reversal in the

agency’s legal interpretation, no provision of the 2020 Rule contains any reference to “sex

stereotyping” or “gender identity.” Indeed, the regulation carries no definitional provision at all,

and instead simply explains that Section 1557 prohibits discrimination on the grounds barred in

the four civil-rights statutes it incorporates. Id. at 37,244 (to be codified at 45 C.F.R. § 92.2).

In another policy reversal, the 2020 Rule expressly incorporated Title IX’s religious

exemption into Section 1557. See 45 C.F.R. § 92.6(b) (incorporating “exemptions” contained in

various statutes, including Title IX). As HHS explained, “Any educational operation of an entity

may be exempt from Title IX due to control by a religious organization.” 85 Fed. Reg. at

37,207–08. The agency made clear that such exemption applied in whole to Section 1557,

thereby excepting applicable operations from the statute’s prohibition on sex discrimination if

inconsistent with the organization’s religious tenets. Id. at 37,207–08 & n.267. According to

HHS, these and other safeguards “will protect both providers’ medical judgment and their

consciences, thus helping to ensure that patients receive the high-quality and conscientious care

that they deserve.” Id. at 37,206.

HHS similarly eliminated the 2016 Rule’s prohibition on insurers’ having or

implementing categorical coverage exclusions for gender-affirming care. In doing so, the agency

contended that no statutory authority existed for such a prohibition in the first place, and it

pointed to evidence indicating division among the medical community “on many issues related

to gender identity, including the value of various ‘gender-affirming’ treatments for gender

dysphoria.” Id. at 37,187, 37,198.

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Next, HHS repealed the 2016 Rule’s requirements that covered entities provide various

notices and taglines informing individuals of Section 1557’s prohibited grounds of

discrimination and the availability of language-assistance services. The agency justified that

action by emphasizing the significant costs of providing such notices in covered communications

and physical locations, as well as limited evidence of their leading to increased access to care.

Id. at 37,224, 37,232–33.

The 2020 Rule also narrowed the scope of entities covered under Section 1557 in two

distinct ways. First, HHS interpreted the statute’s nondiscrimination protections to apply only to

health programs or activities receiving federal funding, programs or activities administered by

HHS under Title I of the ACA, or programs or activities administered by entities established

under Title I. See 45 C.F.R. § 92.3(a). As relevant here, this regulatory action restricted the

statute’s coverage to HHS programs administered under Title I of the ACA, as opposed to all of

the agency’s health programs and activities (as provided by the 2016 Rule). See 85 Fed. Reg. at

37,170–71. The effect of this change would likely be to exclude certain programs administered

by the Centers for Medicare & Medicaid Services and the Centers for Disease Control and

Prevention, among other HHS components, from Section 1557’s reach. Id. In addition, the 2020

Rule interpreted Section 1557’s reference to “any health program or activity” receiving federal

funding, see 42 U.S.C. § 18116(a), as excluding entities “principally or otherwise engaged in the

business of providing health insurance.” 45 C.F.R. § 92.3(b), (c).

Finally, the 2020 Rule requires would-be plaintiffs to employ the particular enforcement

mechanism and accompanying legal standard available under each of Section 1557’s

incorporated statutes, depending on the precise ground of discrimination asserted. See 45 C.F.R.

§ 92.5; 85 Fed. Reg. at 37,202. In other words, a litigant bringing a discrimination claim on a

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ground prohibited by Title VI — e.g., race — cannot invoke the enforcement mechanisms

available under Title IX. See 85 Fed. Reg. at 37,202.

3. Bostock

Just four days before HHS published the 2020 Rule, the Supreme Court issued its

decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), a case involving Title VII’s

prohibition on discrimination “because of . . . sex.” 42 U.S.C. § 2000e–2(a)(1). The Court held

that discrimination based on transgender status or sexual orientation “necessarily entails

discrimination based on sex,” and accordingly falls within Title VII’s sweep. Bostock, 140 S.

Ct. at 1747. In reaching that conclusion, the Court expressly assumed that “sex” “refer[red] only

to biological distinctions between male and female.” Id. at 1739. Nothing turned on the original

meaning of that statutory term, the Court explained, because a “straightforward” application of

Title VII’s text confirmed that “it is impossible to discriminate against a person for being

homosexual or transgender without discriminating against that individual based on sex.” Id. at

1741, 1743.

In the 2020 Rule, HHS acknowledged that the Court’s forthcoming decision in Bostock

“will likely have ramifications” for Title IX’s similarly worded prohibition on sex

discrimination. See 85 Fed. Reg. at 37,168. That was especially so, the agency admitted,

because “Title VII case law has often informed Title IX case law with respect to the meaning of

discrimination ‘on the basis of sex.’” Id. HHS nevertheless pushed ahead, publishing the 2020

Rule shortly after Bostock was decided. Nowhere did the agency mention the case’s holding, let

alone analyze the implications of its reasoning for HHS’s determination that “the term ‘on the

basis of . . . sex’ in Section 1557 does not encompass discrimination on the basis of gender

identity.” Id. at 37,191. Indeed, the final Rule suggests that HHS simply thought Bostock would

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come out differently than it ultimately did. See id. at 37,168 (stating that “the reasons why ‘on

the basis of sex’ . . . does not encompass sexual orientation or gender identity under Title VII

have similar force for the interpretation of Title IX”).

C. The Instant Litigation

Three days after HHS finalized the 2020 Rule — but before its provisions went into

effect — Plaintiffs filed this suit against the agency under the Administrative Procedure Act, 5

U.S.C. § 701 et seq. Among the current Plaintiffs are two private health-care facilities that

provide services to LGBTQ people (Whitman-Walker Clinic, Inc. and Los Angeles LGBT

Center) (the “health-provider Plaintiffs”); two LGBTQ-services organizations (TransLatin@

Coalition and Bradbury-Sullivan LGBT Community Center); two national associations of health

professionals (American Association of Physicians for Human Rights, Inc. (GLMA) and AGLP:

The Association of LGBTQ+ Psychiatrists); and four individual physicians and behavioral-health

providers who work for the health-provider Plaintiffs. See ECF No. 1 (Complaint), ¶¶ 31–46.

Their Complaint asserts various claims against HHS, all pertaining to the 2020 Rule. Id.,

¶¶ 225–307.

Soon thereafter, Plaintiffs filed this Motion for Preliminary Injunction or, in the

Alternative, a Stay Pending Judicial Review. See ECF No. 29, Exh. 1 (Pl. Mot.). Much like

their Complaint, the Motion asserts a congeries of claims against HHS, which run together at

certain points. Stated broadly, Plaintiffs seek an order from this Court enjoining the agency from

carrying out each of the aforementioned regulatory repeals and barring it from enforcing several

of the newly promulgated provisions. They chiefly contend that these actions were arbitrary and

capricious or otherwise foreclosed by Section 1557. In addition, Plaintiffs argue that select

provisions of the 2020 Rule conflict with Section 1554, which prohibits regulations that create

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unreasonable barriers and impede access to health-care services. See 42 U.S.C. § 18114.

Finally, Plaintiffs maintain that the 2020 Rule runs afoul of the Fifth Amendment’s guarantees of

equal protection and substantive due process, infringes their right to free speech under the First

Amendment, and violates the Establishment Clause.

Following a hearing on the Motion, the Court provided Defendants an opportunity to

submit a surreply on questions relating to standing and irreparable harm, as Plaintiffs had

declined to discuss the former in their opening brief. On August 17, 2020 — one week after

Defendants’ supplemental filing, and one day before the 2020 Rule was scheduled to go into

effect — a federal court in the Eastern District of New York “preliminarily enjoin[ed] [HHS]

from enforcing the repeal” of the 2016 Rule’s definition of discrimination on the basis of sex.

Walker v. Azar, No. 20-2834, 2020 WL 4749859, at *10 (E.D.N.Y. Aug. 17, 2020). Walker

endorsed essentially the very argument that Plaintiffs make here — namely, that HHS’s repeal of

the 2016 Rule’s definition was arbitrary and capricious in light of the agency’s failure to

consider the implications of the Supreme Court’s decision in Bostock. Id. at *9–10. Because the

court’s injunction remains in effect, HHS’s repeal of that definitional provision has not yet

occurred. Walker, however, considered only that sole provision of the 2020 Rule; it did not

decide any of the additional issues Plaintiffs raise before this Court. As a result, with the one

exception, each of the 2020 Rule’s new provisions are now in effect.

II. Legal Standard

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary

injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to

suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in

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his favor, and [4] that an injunction is in the public interest.” Sherley v. Sebelius, 644 F.3d 388,

392 (D.C. Cir. 2011) (alterations in original) (quoting Winter, 555 U.S. at 20). “The moving

party bears the burden of persuasion and must demonstrate, ‘by a clear showing,’ that the

requested relief is warranted.” Hospitality Staffing Solutions, LLC v. Reyes, 736 F. Supp. 2d

192, 197 (D.D.C. 2010) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290,

297 (D.C. Cir. 2006)).

Historically, these factors have “been evaluated on a ‘sliding scale.’” Davis v. Pension

Ben. Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009) (quoting Davenport v. Int’l Bhd. of

Teamsters, 166 F.3d 356, 361 (D.C. Cir. 1999)). In other words, if the movant makes an

“unusually strong showing on one of the factors, then it does not necessarily have to make as

strong a showing on another factor.” Id. at 1291–92. This Circuit has hinted, though not held,

that Winter — which overturned the Ninth Circuit’s “possibility of irreparable harm” standard —

establishes that “likelihood of irreparable harm” and “likelihood of success” are “‘independent,

free-standing requirement[s].’” Sherley, 644 F.3d at 392–93 (quoting Davis, 571 F.3d at 1296

(Kavanaugh, J., concurring)); see League of Women Voters v. Newby, 838 F.3d 1, 7 (D.C. Cir.

2016) (declining to address whether “sliding scale” approach is valid after Winter). Unresolved,

too, is the related question of “whether, in cases where the other three factors strongly favor

issuing an injunction, a plaintiff need only raise a serious legal question on the merits.” Aamer

v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014) (internal quotation and citation omitted).

III. Standing

Perhaps overconfident of their standing to bring this suit, Plaintiffs, as mentioned before,

never even discussed this question in their original Motion. This threshold issue, however, is

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quite involved, given all of the discrete challenges Plaintiffs assert here. The Court, as it must,

thus begins by addressing its own jurisdiction.

Article III of the Constitution limits the power of the federal judiciary to the resolution of

“cases and controversies,” a phrase given meaning by the doctrine of “standing.” Whitmore v.

Arkansas, 495 U.S. 149, 154–55 (1990); see U.S. Const. art. III, § 2, cl. 1. “[S]tanding is an

essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992). For that reason, finding that a plaintiff has standing

is a necessary “predicate to any exercise of [the Court’s] jurisdiction.” Fla. Audubon Soc’y v.

Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc).

“Every plaintiff in federal court bears the burden of establishing the three elements that

make up the ‘irreducible constitutional minimum’ of Article III standing: injury-in-fact,

causation, and redressability.” Dominguez v. UAL Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012)

(quoting Lujan, 504 U.S. at 560–61). First, the plaintiff “must have suffered an ‘injury in fact’

— an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b)

actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation

marks and citations omitted). Second, “there must be a causal connection between the injury and

the conduct complained of — the injury has to be ‘fairly . . . trace[able] to the challenged action

of the defendant, and not . . . th[e] result [of] the independent action of some third party not

before the court.’” Id. (alterations in original) (citation omitted). Third, “it must be ‘likely,’ as

opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id.

at 561 (citation omitted). A “deficiency on any one of the three prongs suffices to defeat

standing.” U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000).

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While the plaintiff “bears the burden of establishing” all three elements of standing, the

“manner and degree of evidence required” to do so varies according to the “stage[] of the

litigation.” Lujan, 504 U.S. at 561. “In the context of a preliminary injunction motion,” the

plaintiff must “‘show a substantial likelihood of standing’ ‘under the heightened standard for

evaluating a motion for summary judgment.’” Electronic Privacy Info. Ctr. v. Presidential

Advisory Comm’n on Election Integrity, 878 F.3d 371, 377 (D.C. Cir. 2017) (quoting Food &

Water Watch, Inc. v. Vilsack, 808 F.3d 905, 912–13 (D.C. Cir. 2015)). “Thus, the plaintiff

cannot ‘rest on . . . mere allegations, but must set forth by affidavit or other evidence specific

facts’ that, if ‘taken to be true,’ demonstrate a substantial likelihood of standing.” Id. (alteration

in original) (quoting Lujan, 504 U.S. at 561); see also Electronic Privacy Info. Ctr. v. U.S. Dep’t

of Commerce, 928 F.3d 95, 104 (D.C. Cir. 2019). “[I]n assessing plaintiffs’ standing, [the

Court] must assume they will prevail on the merits of their . . . claims.” LaRoque v. Holder, 650

F.3d 777, 785 (D.C. Cir. 2011).

Because “standing is not dispensed in gross,” but instead may differ claim by claim,

Davis v. FEC, 554 U.S. 724, 734 (2008) (internal quotation and alteration omitted), a plaintiff

“must demonstrate standing for each claim he seeks to press.” DaimlerChrysler Corp. v. Cuno,

547 U.S. 332, 352 (2006). Only one plaintiff, however, needs standing in order for a particular

claim to go forward. Comcast Corp. v. FCC, 579 F.3d 1, 6 (D.C. Cir. 2009). That is, if

constitutional standing “can be shown for at least one plaintiff, we need not consider the standing

of the other plaintiffs to raise that claim.” Carpenters Indus. Council v. Zinke, 854 F.3d 1, 9

(D.C. Cir. 2017) (quoting Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C.

Cir. 1996)); see also In re Navy Chaplaincy, 697 F.3d 1171, 1176–1178 (D.C. Cir. 2012)

(concluding that plaintiffs had standing because “at least some plaintiffs” would suffer injury).

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While an “inability to establish a substantial likelihood of standing” on a particular claim

“requires denial of the motion for preliminary injunction,” it does not warrant outright dismissal.

Food & Water Watch, 808 F.3d at 913.

The Court will first assess nine of Plaintiffs’ claims under the rubric of organizational

standing. It will then consider whether they can assert the rights of third-party LGBTQ patients

to bring the three remaining constitutional counts.

A. Organizational Standing

1. Legal Standard

Organizations can sue either on their own behalf (“organizational standing”) or on behalf

of their members (“representational” or “associational standing”). See Ctr. for Responsible

Sci. v. Gottlieb, 311 F. Supp. 3d 5, 9 (D.D.C. 2018). For reasons that will become evident, the

Court largely focuses on the former theory with respect to the health-provider Plaintiffs

(Whitman-Walker and LA LGBT). To establish organizational standing, Plaintiffs must show

that the organization itself, like any individual plaintiff, satisfies the three familiar elements of

standing — (1) injury, (2) causation, and (3) redressability. See Equal Rights Ctr. v. Post Props.,

633 F.3d 1136, 1138 (D.C. Cir. 2011).

To satisfy the injury-in-fact requirement, an organization must allege a “concrete and

demonstrable injury to [its] activities.” Food & Water Watch, 808 F.3d at 919 (alteration in

original) (quoting PETA v. USDA (PETA II), 797 F.3d 1087, 1093 (D.C. Cir. 2015)).

Conversely, “a mere ‘setback’” to the organization’s “‘abstract social interests’ is not sufficient.”

Equal Rights Ctr., 633 F.3d at 1138 (quoting Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C.

Cir. 1990)). Our Circuit memorializes this distinction in a two-part test: the Court must ask first

“whether the agency’s action or omission to act ‘injured the [organization’s] interest’”; then, if

18

satisfied, it inquires whether “the organization ‘used its resources to counteract that harm.’”

PETA II, 797 F.3d at 1094 (alteration in original) (quoting Equal Rights Ctr., 633 F.3d at 1140);

accord Food & Water Watch, 808 F.3d at 919 (employing same test); see also Havens Realty

Corp. v. Coleman, 455 U.S. 363, 379 (1982) (finding organizational injury based on an “injury to

the organization’s activities” followed by “the consequent drain on the organization’s

resources”).

Regarding the first prong: to qualify as an injury to the organization’s interest, the

challenged activity must “perceptibly impair[] the organization’s ability to provide services.”

Food & Water Watch, 808 F.3d at 919 (quoting Turlock Irrigation Dist. v. FERC, 786 F.3d 18,

24 (D.C. Cir. 2015)). Put otherwise, it must “inhibit[]” the organization’s “daily operations” in a

concrete way, PETA II, 797 F.3d at 1094 (citation omitted), such as by “undermin[ing] the

organization’s ability to perform its fundamental programmatic services.” Nat’l Veterans Legal

Servs. Program v. U.S. Dep’t of Def., No. 14-1915, 2016 WL 4435175, at *6 (D.D.C. Aug. 19,

2016). A necessary aspect of this requirement is that there be a “direct conflict between the

defendant’s conduct and the organization’s mission.” Abigail All. v. Eschenbach, 469 F.3d 129,

133 (D.C. Cir. 2006).

Once this first prong is met, the Court moves on to the second and asks whether the

organization will “use[] its resources to counteract that harm.” Food & Water Watch, 808 F.3d

at 919 (quoting PETA II, 797 F.3d at 1094). While “self-inflicted” injuries do not count, Abigail

All., 469 F.3d at 133, an injury is not a “self-inflicted . . . budgetary choice[]” merely by having

been made willfully or voluntarily. Equal Rights Ctr., 633 F.3d at 1139 (quoting Fair Emp’t

Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994)).

Rather, as long as the organization will expend resources “to counteract[] the effects of the

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defendant[’s]” challenged conduct, that diversion can suffice for Article III purposes. Id. at

1140.

In a suit for preliminary injunctive relief, “past harm is not sufficient to establish an

injury in fact.” Nat’l Whistleblower Ctr. v. HHS, 839 F. Supp. 2d 40, 45–46 (D.D.C. 2012).

The plaintiff, rather, must show “a real and immediate — as opposed to merely conjectural or

hypothetical — threat of future injury.” Nat. Res. Def. Council v. Pena, 147 F.3d 1012, 1022

(D.C. Cir. 1998) (quoting Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994));

see also City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983); Attias v. Carefirst, Inc., 865

F.3d 620, 627 (D.C. Cir. 2017) (“[W]e have frequently upheld claims of standing based on

allegations of a ‘substantial risk’ of future injury.”).

The tests for causation and redressability “mirror, with little added gloss, the

requirements for a non-organizational plaintiff who attempts to invoke the jurisdiction of the

federal courts.” Citizens for Responsibility and Ethics in Washington v. U.S. Office of Special

Counsel, No. 19-3757, 2020 WL 4530647, at *6 (D.D.C. Aug. 6, 2020). In other words, an

organizational plaintiff must show that its injury is “fairly traceable to the defendant’s allegedly

unlawful conduct.” Am. Soc. for Prevention of Cruelty to Animals v. Feld Ent. Inc., 659 F.3d

13, 24 (D.C. Cir. 2011). It must also be “likely” that the injury would be “redressed by a

favorable court decision.” Id.

2. Application to Claims

Mindful of its obligation to ensure that standing exists for every count asserted, the Court

will “address seriatim” Plaintiffs’ allegations with respect to each claim. West v. Lynch, 845

F.3d 1228, 1235 (D.C. Cir. 2017). For ease of explanation, however, it will begin by describing

several organizational injuries alleged by the health-provider Plaintiffs, as these asserted harms

20

have consequences for several of their counts. Specifically, such harms satisfy the injury-in-fact

requirement for Plaintiffs’ claims that HHS: 1) improperly eliminated the 2016 Rule’s definition

of sex discrimination; 2) erred by incorporating Title IX’s religious exemption into Section 1557;

3) violated Section 1554; and 4) ran afoul of the Establishment Clause. After surveying these

“common injuries,” the Court will separately address causation and redressability for all four

claims. It will then separately consider standing for the five additional claims that rely on

alleged organizational injury but do not share common injuries with the first four claims.

Finally, as previously mentioned, the Court will analyze Plaintiffs’ remaining three constitutional

counts in a separate sub-section, as they do not raise issues of organizational standing.

a. Common-Injury Claims

i. Injury-in-Fact

The Court begins by laying out several organizational injuries that underlie four of

Plaintiffs’ claims.

First, both Whitman-Walker and LA LGBT — i.e., the health-provider Plaintiffs —

profess financial and operational injuries as a result of increased patient demand spurred by the

new Rule. Specifically, they contend that growing numbers of LGBTQ patients are likely to turn

to their organizations for health-care services given the patients’ augmented fear of

discrimination at the hands of external providers. See Pl. Mot., Exh. 9 (Declaration of Robert

Bolan), ¶¶ 11, 13, 18 (explaining that 2020 Rule is “likely to cause an increase in demand for my

health care services” because “patients will come to us seeking affirming health care out of fear

of discrimination elsewhere”); Exh. 3 (Declaration of Naseema Shafi), ¶ 34 (explaining that “fear

of discrimination, resulting from the [2020] Rule, is likely to result in increased demand for

Whitman-Walker’s health care services”); Exh. 4 (Declaration of Sarah Henn), ¶¶ 19, 29; Exh. 5

21

(Declaration of Randy Pumphrey), ¶¶ 9, 14–15; Exh. 8 (Declaration of Darrel Cummings), ¶¶ 12,

18, 20; Exh. 9 (Declaration of Ward Carpenter), ¶¶ 12, 16. That increased demand, in turn, will

necessarily generate “considerable operational and financial challenges.” Shafi Decl., ¶ 34;

Carpenter Decl., ¶ 12. On the financial side, a larger pool of patients demanding the

organizations’ services will force them to provide care on a broader scale, and the resulting

expenditures will exacerbate pressure on already constrained budgets. See Shafi Decl., ¶ 34;

Henn Decl., ¶ 29; Cummings Decl., ¶ 20. Operations will also suffer, as fear of discrimination

will likely cause an “increase in demand for [LA LGBT’s] services,” which will “increase wait

times” and “limit [LA LGBT’s] ability to provide adequate care and time to [its] patients.”

Carpenter Decl., ¶¶ 12, 16. LA LGBT has likewise indicated the need to hire additional mental-

health staff to contend with “increase[d] patient trauma” that the 2020 Rule has and will

allegedly continue to cause. Id., ¶ 12.

In addition, the health-provider Plaintiffs assert a related but distinct injury: having to

provide costlier and more involved treatment. According to the organizations, heightened fears

of discrimination on account of the 2020 Rule will cause patients to refrain from being fully

transparent with external providers regarding their LGBTQ identities and unique medical

histories. See Bolan Decl., ¶ 17 (“The [2020] Rule will cause LGBTQ patients to attempt to hide

their LGBTQ identities to an even greater degree when seeking health care services, especially

from religiously-affiliated health care organizations, in order to avoid discrimination.”); Shafi

Decl., ¶ 21 (contending that 2020 Rule will “encourage LGBTQ patients to remain closeted to

the extent possible when seeking medical care”); Henn Decl., ¶¶ 19–20; Pumphrey Decl., ¶ 12;

Cummings Decl., ¶¶ 18–19; Carpenter Decl., ¶ 15. Other patients will delay seeking necessary

care entirely — even, at times, in cases of emergency. See Pl. Mot., Exh. 6 (Declaration of

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Bamby Salcedo), ¶ 33 (stating that “[t]ransgender and gender nonconforming people will likely

delay necessary health care and preventative screenings due to fear of discrimination”);

Carpenter Decl., ¶ 20; Cummings Decl., ¶ 18.

In either case, patients expose themselves to “significant adverse health consequences”

and undercut the effectiveness of their eventual treatment. See Shafi Decl., ¶ 21; see also

Pumphrey Decl., ¶ 12; Cummings Decl., ¶ 24. For instance, patients who conceal a same-sex

sexual history may not be screened for HIV or other relevant diseases, and they may not be

prescribed necessary preventive medications on account of misdiagnoses. See Shafi Decl., ¶ 21;

Henn Decl., ¶ 16; Bolan Decl., ¶¶ 13–15. The consequences for the health-provider Plaintiffs are

evident: a patient pool with conditions that are increasingly advanced at diagnosis and less

responsive to treatment, thus requiring the organizations to expend resources on costlier and

more challenging care, especially when administered in cases of emergency. See Cummings

Decl., ¶¶ 9, 16 (explaining that 2020 Rule “increases patients’ reluctance to seek care for both

minor and serious conditions” and “exacerbate[s]” number of patients who arrive at LA LGBT

“with acute medical conditions that could have been avoided but-for the[ir] reluctance to seek

routine and necessary medical care for fear of discrimination”); Henn Decl., ¶¶ 18–21

(describing how deferral of care “strain[s] Whitman-Walker’s resources,” “increase[s] costs,”

and “make[s] it harder for our health care providers to treat the patients”); Bolan Decl., ¶ 11;

Carpenter Decl., ¶¶ 11–12, 15.

Each of these qualifies as an injury to the health-provider Plaintiffs’ interests. Increased

demand and fear of discrimination “perceptibly impair [their] ability to provide services,” Food

& Water Watch, 808 F.3d at 919 (citation omitted), thus “inhibit[ing]” their “daily operations”

by forcing them to deliver costlier and more difficult treatment to a growing number of patients.

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PETA II, 797 F.3d at 1094. “These are real, concrete obstacles to [Plaintiffs’] work, rather than

the kind of ‘abstract concern that does not impart standing.’” PETA v. USDA, 7 F. Supp. 3d 1, 8

(D.D.C. 2013) (quoting Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C.

Cir. 1995)), aff’d, 797 F.3d at 1089; see also Dist. of Columbia v. USDA, 444 F. Supp. 3d 1, 40–

42 (D.D.C. 2020) (determining that plaintiff organization suffered injury-in-fact by showing that

agency action would cause individuals to turn to organization’s programs, thereby “increasing

demand and forcing [the organization] to divert resources” away from other programs in order to

service such demand); Fair Emp’t Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d

1268, 1276 (D.C. Cir. 1994) (finding organizational standing satisfied where protested action

“might increase the number of people in need of counseling . . . [and] reduce[ ] the effectiveness

of any given level of [the organization’s] outreach efforts”).

These harms, moreover, directly frustrate Plaintiffs’ missions “to offer affirming

community-based health and wellness services to all.” Shafi Decl., ¶¶ 3, 40; see also Cummings

Decl., ¶¶ 3–4, 33 (similar). And it is evident that the organizations will “use[] [their] resources

to counteract” such injury, spending more money and exerting more manpower at a time when

resources are already stretched thin. Food & Water Watch, 808 F.3d at 919 (quoting PETA II,

797 F.3d at 1093).

Resisting such a conclusion, Defendants first assert that Plaintiffs “cannot explain how

the 2020 Rule might injure them as opposed to others not before the Court.” ECF No. 42 (Def.

Opp.) at 11–12. On the contrary, far from asserting a mere “generalized grievance,” Plaintiffs

have alleged concrete and particularized financial and programmatic injuries affecting them

uniquely as health-care providers. See Duke Power Co. v. Carolina Envt’l Study Grp., Inc., 438

U.S. 59, 80 (1978).

24

Next, Defendants characterize Plaintiffs’ alleged “financial harm” as “fatally unspecific.”

ECF No. 48 (Def. Surreply) at 10. To the extent the Government suggests that Plaintiffs need

provide a greater accounting of their alleged financial injury than they already have, see ECF No.

46 (Aug. 3, 2020, Hearing Transcript) at 32, they are mistaken. The precise amount of economic

harm a plaintiff suffers is “irrelevant,” as even “[a] dollar . . . is still an injury-in-fact for standing

purposes.” Carpenters Indus. Council, 854 F.3d at 5–6; see also Czyzewski v. Jevic Holding

Corp., 137 S. Ct. 973, 983 (2017) (“For standing purposes, a loss of even a small amount of

money is ordinarily an ‘injury.’”). And although Defendants attack Plaintiffs’ allegations as

“amorphous,” they never engage with them specifically, instead opting to rely on non-binding

authority that is far afield. See Def. Surreply at 10. In International Academy of Oral Medicine

& Toxicology v. U.S. Food & Drug Administration, 195 F. Supp. 3d 243 (D.D.C. 2016), for

instance, the court rejected the plaintiff organization’s standing argument on the unremarkable

ground that it had not specifically identified a member who claimed she would suffer future

injury, as required to assert representational — as opposed to organizational — standing. Id. at

264–65. And in Freedom Watch, Inc. v. McAleenan, 442 F. Supp. 3d 180 (D.D.C. 2020), the

plaintiff organization offered only “bare assertions” devoid of any “factual allegations to

establish, with any level of clarity,” how the Government’s refusal to conduct a criminal

investigation of a third party would generate a “downturn in financial support” for the

organization. Id. at 187, 191–92.

Defendants finally argue that Plaintiffs’ alleged harm is “conjectural.” Def. Opp. at 12

(citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013)). Specifically, they contend

that Plaintiffs’ claim is premised on a “risk of discrimination in health care” — namely, the

belief that third-party medical providers “may choose to deny individuals certain procedures or

25

coverage” or otherwise engage in discrimination against LGBTQ patients. Id. That outcome,

Defendants insist, is “far from inevitable.” Id. Another court just last week endorsed this

reasoning, holding that the State of Washington lacked standing to challenge the 2020 Rule

because it had not demonstrated that the Rule would “yield an increase in discrimination against

LGBTQ individuals or a decrease in available healthcare or health coverage.” Washington v.

HHS, No. 20-1105, slip op. at 19 (W.D. Wash. Aug. 28, 2020).

The health-provider Plaintiffs, however, do not stake their primary injury-in-fact claim on

this potentiality. Instead, they assert that LGBTQ patients’ fear of discrimination at the hands of

third parties — regardless of whether such discrimination ultimately occurs — will cause

individuals to turn to Plaintiff organizations for care, thereby necessarily generating financial and

operational burdens that “impair[] [Plaintiffs’] ability to provide services.” Food & Water

Watch, 808 F.3d at 919 (citation omitted). That result is far from “conjectural”; as demonstrated

above, anxiety surrounding the possibility of discrimination and denial of treatment is

substantially likely to provoke such behavior. See supra at 21–23. The result, similarly, is easily

distinguished from the highly attenuated chain of possibilities deemed insufficient in Clapper,

where the harm “would not have arisen unless a series of independent actors, including

intelligence officials and Article III judges, exercised their independent judgment in a specific

way.” Attias, 865 F.3d at 628 (citing Clapper, 568 U.S. at 410–14). Plaintiffs, accordingly, have

demonstrated a “substantial risk” that the alleged harm “will occur,” Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 158 (2014) (quoting Clapper, 568 U.S. at 414 n.5), thus rendering it

“sufficiently ‘imminent’ for standing purposes.” Attias, 865 F.3d at 627 (quoting Food & Water

Watch, 808 F.3d at 915).

26

ii. Causation and Redressability

Having addressed the common injuries-in-fact for four of Plaintiffs’ claims, the Court

now considers independently the other standing requirements — viz., causation and

redressability — for each of those counts.

(a) Elimination of 2016 Rule’s Definition of Sex

Discrimination

Plaintiffs first challenge HHS’s repeal of the 2016 Rule’s definition of discrimination “on

the basis of sex,” which explicitly prohibited discrimination based on sex stereotyping and

gender identity. They must show that the injuries described above are “fairly . . . trace[able] to”

such repeal. Lujan, 504 U.S. at 560–61 (alterations in original) (citation omitted). Where

causation depends on the conduct of a third party not before the court, “standing is not precluded,

but it is ordinarily substantially more difficult to establish.” Id. at 562 (citation and internal

quotation marks omitted). Plaintiffs must show that the third party will act “in such manner as to

produce causation.” Id. A permissible theory of standing “does not rest on mere speculation

about the decisions of third parties; it relies instead on the predictable effect of Government

action on the decisions of third parties.” Dep’t of Commerce v. New York, 139 S. Ct. 2551,

2566 (2019).

The health-provider Plaintiffs successfully clear the bar. Their proposed causal chain is

relatively simple: the 2020 Rule’s elimination of the prior explicit prohibitions on discrimination

based on sex stereotyping and gender identity instilled in LGBTQ patients a fear of

discrimination at the hands of external providers, thereby causing Plaintiff organizations to suffer

the financial and operational consequences of higher demand. Of course, as this theory makes

clear, it is the patients’ decisions to seek services from the health-provider Plaintiffs that most

immediately causes their harm. The law is clear, however, that Plaintiffs may establish standing

27

based on the actions of third parties, so long as there is “substantial evidence of a causal

relationship between the government policy and the third-party conduct, leaving little doubt as to

causation.” Americans for Safe Access v. Drug Enforcement Admin., 706 F.3d 438, 446 (D.C.

Cir. 2013) (citation omitted). Indeed, the D.C. Circuit has routinely found causation established

in cases where the relevant “third-party conduct . . . is voluntary but reasonably predictable.”

Competitive Enter. Inst. v. FCC, No. 18-1281, 2020 WL 4745272, at *8 (D.C. Cir. Aug. 14,

2020); see also, e.g., Energy Future Coal. v. EPA, 793 F.3d 141, 144 (D.C. Cir. 2015); Tozzi v.

HHS, 271 F.3d 301, 308–10 (D.C. Cir. 2001); Competitive Enter. Inst. v. NHTSA, 901 F.2d 107,

116–17 (D.C. Cir. 1990).

Plaintiffs have provided “substantial evidence,” Americans for Safe Access, 706 F.3d at

446 (citation omitted), that the 2020 Rule’s elimination of the explicit prohibition on

discrimination based on sex stereotyping and gender identity has caused — and will continue to

cause — patients to fear discrimination at the hands of third parties. See, e.g., Cummings Decl.,

¶¶ 11–12 (explaining that elimination of these prohibitions “caused immediate panic” among LA

LGBT patients and leads them to “fear discrimination”); Salcedo Decl., ¶ 23 (transgender

woman stating that “[t]he [2020] Rule’s elimination of the clear regulatory protections in the

2016 Final Rule . . . heightens my fears, as it communicates to health care providers that such

discrimination is acceptable”); Pumphrey Decl., ¶ 9 (stating that repeal of prohibitions “will on

its own invoke increased fear and trauma among LGBTQ patients”); Henn Decl., ¶ 7; Pl. Mot.,

Exh. 7 (Declaration of Ariana Inurritegui-Lint), ¶ 48; Exh. 13 (Declaration of Roy Harker), ¶ 14.

It is that rational fear that will drive LGBTQ patients to rely increasingly on the services of the

health-provider Plaintiffs. See supra at 21–23. The resulting harm that these organizations will

likely suffer — principally, having to expend more resources to care for patients — is therefore

28

“attributable to” the 2020 Rule. Block v. Meese, 793 F.2d 1303, 1308 (D.C. Cir. 1986); see also

Scenic Am., Inc. v. DOT, 983 F. Supp. 2d 170, 179–80 (D.D.C. 2013).

Defendants nonetheless argue that Simon v. Eastern Kentucky Welfare Rights

Organization, 426 U.S. 26 (1976), precludes a finding of causation here. See Def. Opp. at 9–10;

Def. Surreply at 4. But Simon does not stand for the proposition that Plaintiffs cannot establish

causation when their injury stems most immediately from third-party conduct. See Block, 793

F.2d at 1309 (“It is impossible to maintain, of course, that there is no standing to sue regarding

action of a defendant which harms the plaintiff only through the reaction of third persons.”). The

case, instead, turned on its particular facts. The plaintiffs there claimed that the Internal Revenue

Service’s favorable tax treatment of certain hospitals caused those hospitals to refrain from

providing indigent patients free care. See 426 U.S. at 42–44. The Court only dismissed for lack

of standing because the plaintiffs’ allegations failed to show that the hospitals would have chosen

to provide free care but for the challenged benefit. Id. This case, by contrast, involves “very

different” evidence. Competitive Enter. Inst., 2020 WL 4745272, at *8. Plaintiffs have provided

ample support for their allegation that they will likely suffer financial and operational injury as a

result of the 2020 Rule. Id. (finding Simon inapplicable where plaintiff established a reasonable

likelihood of harm from Government action, even when such harm turned on third-party

conduct).

Although Defendants do not invoke it in the context of causation, Clapper likewise does

not preclude a finding that Plaintiffs’ injuries are fairly traceable to the 2020 Rule. There, the

Supreme Court explained that plaintiffs do not have standing simply because they incur certain

costs as a “reasonable reaction” to a risk of harm when that harm “is not certainly impending.”

Clapper, 568 U.S. at 416. The Court was concerned about the potential for plaintiffs to

29

“manufacture standing merely by inflicting harm on themselves based on their fears of

hypothetical future harm that is not certainly impending.” Id. No such hazard exists here. As

the health-provider Plaintiffs explain, they will be forced to incur financial and operational costs

because LGBTQ patients — independent third parties — will fear discrimination as a result of

the 2020 Rule and respond accordingly. It is the substantial likelihood of increased demand

caused by the patients’ own independent decisions in response to the 2020 Rule that will

generate Plaintiffs’ injury, not the reactions of the organizations themselves to a risk of future

discrimination as a result of the Rule. Because Plaintiffs’ harm derives from the uncoordinated

actions of non-plaintiffs, the organizations are not “inflicting harm on themselves,” and Clapper

thus does not control.

With causation satisfied, the Court now turns to redressability. As a reminder, “it must

be ‘likely,’ as opposed to merely ‘speculative,’ that [Plaintiffs’] injury will be ‘redressed by a

favorable decision.’” Lujan, 504 U.S. at 561 (citation omitted); Int’l Ladies' Garment Workers’

Union v. Donovan, 722 F.2d 795, 811 (D.C. Cir. 1983) (explaining that plaintiffs do not have “to

prove that granting the requested relief is certain to alleviate’ their injury”). “Causation and

redressability typically ‘overlap as two sides of a causation coin.’” Carpenters Indus. Council,

854 F.3d at 6 n.1 (quoting Dynalantic Corp. v. Dep’t of Defense, 115 F.3d 1012, 1017 (D.C. Cir.

1997)). For “if a government action causes an injury, enjoining the action usually will redress

that injury.” Id.

Redressability here, however, involves an unexpected wrinkle, one involving the

previously discussed decision from the Northern District of Texas. As a reminder, the 2016 Rule

specifically defined Section 1557’s prohibition on sex discrimination to include “discrimination

on the basis of . . . sex stereotyping, and gender identity.” 81 Fed. Reg. at 31,467 (formerly

30

codified at 45 C.F.R. § 92.4). Before the 2020 Rule was finalized, however, that Texas court

vacated the “gender identity” portion of this definition. See Franciscan Alliance Order at ECF p.

3 (“[T]he Court VACATES the Rule insofar as the Rule defines ‘On the basis of sex’ to include

gender identity . . . .”); see also Franciscan Alliance, 414 F. Supp. 3d at 945. That meant that the

2016 Rule’s original prohibition on discrimination based on gender identity was no longer part of

the regulation. As a result, even if this Court were to grant Plaintiffs their desired relief and

enjoin HHS from enforcing its repeal of the 2016 definition, the resulting regulation would not

contain any language barring gender-identity discrimination. Put differently, enjoining or

vacating the 2020 Rule would not suddenly make gender-identity discrimination illegal under

Section 1557 — or change how the regulatory text addresses gender-identity discrimination —

because the relevant provision of the 2016 Rule was no longer in effect following Franciscan

Alliance.

All Plaintiffs say in response is that the Supreme Court’s recent decision in Bostock

“abrogat[ed]” Franciscan Alliance, rendering its vacatur “a legal nullity.” Pl. Reply at 3. Yet

they identify no authority that would permit either this Court or HHS to disregard the final order

of a district court vacating part of a regulation. Indeed, that vacatur remains final today, as the

Government did not appeal the court’s decision. When pressed at the hearing on this Motion,

moreover, Plaintiffs insisted that they had also challenged other provisions that were not vacated.

See Hrg. Tr. at 7. But Defendants’ redressability argument is confined to this regulatory

provision, see Def. Surreply at 3–4, vacatur of which renders the Court powerless to revive it.

Cf. Charles H. Koch, Jr. & Richard Murphy, Admin. L. & Prac. § 10:29 (3d ed.) (“A court

cannot, generally speaking, rewrite or ‘fix’ an agency’s rule insofar as doing so would require

the court to infringe on the agency’s policymaking authority.”). The Eastern District of New

31

York recently reached the same conclusion in a parallel case there. Walker, 2020 WL 4749859,

at *7 (explaining that court “has no power to revive a rule vacated by another district court”).

This result, however, does not completely doom Plaintiffs’ challenge to this provision.

That is because their claim is not confined to the “gender identity” language; they also contest

HHS’s elimination of the 2016 Rule’s definition of sex discrimination as including

discrimination based on sex stereotyping. See Pl. Reply at 5 (explaining that desired relief

“would prohibit discrimination on the basis of gender identity and sex stereotypes”) (emphasis

added); Compl., ¶ 13. Franciscan Alliance, notably, did not vacate this latter definitional

provision; the court’s opinion never even mentioned it. See 414 F. Supp. 3d 928. Indeed, the

court’s final order explicitly stated that aside from the provision specifically vacated (and one

other not relevant here), “[t]he remainder of 45 C.F.R. § 92 remains in effect.” Franciscan

Alliance Order at ECF p. 3.

Were this Court to enjoin the relevant provision of the 2020 Rule, therefore, Plaintiffs

would be left with the 2016 Rule’s prohibition on discrimination based on sex stereotyping. See

Def. Opp. at 9 (“Enjoining the challenged 2020 Rule would leave plaintiffs with the non-vacated

portions of the 2016 Rule.”). That relief would clearly redress at least some of their injury. See

Walker, 2020 WL 4749859, at *7 (finding redressability satisfied because “Franciscan Alliance

did not address the concept of ‘sex stereotyping’ embodied in the 2016 Rule”); Defs. of Wildlife

v. Gutierrez, 532 F.3d 913, 925 (D.C. Cir. 2008) (finding standing established when “order from

the district court could redress appellants’ injury, at least in part”). Just as eliminating the 2016

Rule’s definition of “on the basis of sex” has and will increase fear of discrimination among

LGBTQ patients, with the consequent harms for the health-provider Plaintiffs, reviving part of

that prior provision will likely lessen those fears. It is far from “speculative,” Lujan, 504 U.S. at

32

561 (citation omitted), to conclude that reinstating an explicit prohibition against discrimination

based on sex stereotyping will affect the behavior of LGBTQ patients — especially when their

alleged fear is directly attributable to the 2020 Rule, the arguable centerpiece of which

eliminated language containing that prohibition. See, e.g., Shafi Decl., ¶ 34; Bolan Decl., ¶ 18;

Henn Decl., ¶¶ 7, 19. Indeed, even HHS admits that the 2016 Rule “likely induced many

covered entities to conform their policies and operations” to the regulation’s definition of sex

discrimination, and that elimination of that definition may cause some covered entities to “revert

to the policies and practices they had in place before” the 2016 Rule. See 84 Fed. Reg. at

27,876.

In a brief attempt to escape this result, Defendants suggest that some providers could opt

to avoid the strictures of Section 1557 by refusing to accept federal funds altogether. See Def.

Opp. at 10; 42 U.S.C. § 18116(a) (applying restrictions to “any health program or activity, any

part of which is receiving Federal financial assistance”). Defendants, however, fail to provide

even a single instance in which an entity covered by Section 1557 has declined federal funding

for the purpose of avoiding the provision’s requirements. It defies belief that a “significant

number” of covered entities would so surrender federal assistance, especially when there is no

evidence of such behavior in the aftermath of the 2016 Rule. Action All. of Senior Citizens v.

Heckler, 789 F.2d 931, 938–39 (D.C. Cir. 1986) (rejecting similar argument that redressability is

not established because recipients of federal funding might surrender funding rather than comply

with regulation).

Because a favorable ruling will likely redress at least some of Plaintiffs’ injury, the Court

finds that they have standing to attack the 2020 Rule’s elimination of the 2016 Rule’s prohibition

on discrimination based on sex stereotyping.

33

(b) Incorporation of Title IX’s Religious Exemption

Plaintiffs’ challenge to the 2020 Rule’s incorporation of Title IX’s religious exemption

similarly clears the causation and redressability bars. That exemption, to review, excuses certain

religious organizations from Title IX’s nondiscrimination mandate if application of such

mandate would be inconsistent with the organization’s “religious tenets.” 20 U.S.C.

§ 1681(a)(3).

The analysis proceeds in similar fashion to that regarding Plaintiffs’ challenge to the

Rule’s elimination of the sex-discrimination definition. Specifically, there is “substantial

evidence” that HHS’s newly and explicitly incorporated religious exemption will cause patients

to fear discrimination at the hands of religiously affiliated providers, once again “leaving little

doubt as to causation.” Americans for Safe Access, 706 F.3d at 446 (citation omitted). As one

declarant puts it, the 2020 Rule “will cause LGBTQ patients to attempt to hide their LGBTQ

identities when seeking health care services, especially from religiously-affiliated health care

organizations, in order to avoid discrimination.” Harker Decl., ¶ 19; see also Bolan Decl., ¶ 17

(similar); Pl. Mot., Exh. 11 (Declaration of Adrian Shanker), ¶¶ 22–23 (stating that 2020 Rule’s

religious exemption will “exacerbate” number of LGBTQ patients who “remain closeted” while

seeking health care out of fear of discrimination); Cummings Decl., ¶ 19 (explaining that

“[t]ransgender and gender nonconforming clients are particularly likely to delay care as a result

of the” 2020 Rule’s religious exemption). Such apprehension, in turn, further contributes to

increased demand for the services of the health-provider Plaintiffs and their accompanying

financial and operational injuries.

Defendants yet again assail Plaintiffs’ causation argument as unduly speculative,

contending that it “assumes that a provider who would otherwise refuse to offer services as a

34

result of the dictates of his or her religion, would be willing to violate those same beliefs in order

to comply with a hypothetical HHS regulation.” Def. Surreply at 8. As already explained,

however, Plaintiffs’ argument for standing rests not on the possibility of third-party, religiously

affiliated providers actually discriminating against LGBTQ patients, but rather on patients’

genuine fear of encountering discrimination when seeking care from such institutions. It is that

apprehension, immediately stimulated by the 2020 Rule’s incorporation of Title IX’s religious

exemption, that contributes to the particular organizational injuries the health-provider Plaintiffs

have asserted. Far from resting on “mere speculation about the decisions of third parties” — viz.,

LGBTQ patients — therefore, Plaintiffs’ theory “relies instead on the predictable effect of

Government action” on such decisions. Dep’t of Commerce, 139 S. Ct. at 2566.

“Having found that [Plaintiffs] satisf[y] the element of causation, the issue of

redressability is straightforward.” Ciox Health, LLC v. Azar, 435 F. Supp. 3d 30, 52 (D.D.C.

2020). Just as explicitly incorporating Title IX’s religious exemption into Section 1557 spurred

LGBTQ patients’ fear of discrimination, enjoining such incorporation would likely palliate such

fear and “redress [Plaintiffs’] injury, at least in part.” Defs. of Wildlife, 532 F.3d at 925.

(c) Section 1554 and Establishment Clause

Plaintiffs claim that the 2020 Rule violates Section 1554’s prohibition on, inter alia,

regulations that “create[] any unreasonable barriers to the ability of individuals to obtain

appropriate medical care” or “impede[] timely access to health care services.” 42 U.S.C

§ 18114(1)–(2); Pl. Mot. at 26. They also contend that the 2020 Rule “facilitate[s] the religious

beliefs of objecting providers, without exception,” thereby running afoul of the Establishment

Clause. See Pl. Mot. at 33. With the above discussion in mind, standing for each challenge is

readily established.

35

While Plaintiffs’ opening brief does not state the contours of their Section 1554 claim

with much particularity, see Pl. Mot. at 26, their reply makes clear that the challenge is premised

in part on the 2020 Rule’s elimination of the explicit prohibition on discrimination based on sex

stereotyping and gender identity, as well as its incorporation of religious exemptions. See Pl.

Reply at 19–20. Their Establishment Clause claim, in turn, rests squarely on HHS’s

incorporation of Title IX’s religious exemption. See Pl. Mot. at 33. Their standing to assert each

claim thus follows directly from their standing to challenge the individual regulatory provisions

as arbitrary and capricious. Defendants offer no reason why the analysis might differ.

b. Additional Organizational-Injury Claims

With standing thus established for the four “common-injury” claims, the Court now

separately considers five additional counts that also rely on alleged organizational injury. It

ultimately renders a split decision: Plaintiffs have successfully established standing for their

challenges to HHS’s elimination of: 1) the 2016 Rule’s prohibition on categorical coverage

exclusions for gender-affirming care; and 2) its notice requirements. They have not, however,

demonstrated a substantial likelihood of standing for their claims that the 2020 Rule: 3)

improperly restricted Section 1557’s scope to Title I programs or activities; 4) improperly

excluded health insurers from Section 1557’s coverage; and 5) erroneously interpreted Section

1557’s legal standard.

i. Elimination of Prohibition on Categorical Coverage Exclusions

In support of its challenge to HHS’s elimination of the 2016 Rule’s prohibition on

categorical coverage exclusions for gender-affirming care, Plaintiff Whitman-Walker asserts a

monetary injury — namely, that it will obtain reduced reimbursements from insurers that scale

back their coverage of such treatment. See Shafi Decl., ¶ 35. Whitman-Walker hosts many

36

patients who require hormone therapy and affirming mental-health services. Id. As a result of

the 2020 Rule’s elimination of the 2016 Rule’s prohibition on coverage exclusions for such care,

Whitman-Walker asserts it will experience a monetary loss in the form of lower reimbursements.

Id. That loss will further “undermin[e] the organization’s ability to perform its fundamental

programmatic services,” Nat’l Veterans Legal Servs. Program, 2016 WL 4435175, at *6, and

force it to rely more heavily on resources from other sources, including increasing charges to

patients and drawing from its already depleted fundraising and grant revenue. See Shafi Decl.,

¶ 35.

Defendants characterize this asserted injury as unduly speculative, pointing out that the

2016 Rule “prohibited only categorical exclusions — it did not speak to individual

determinations.” Def. Surreply at 5. They thus maintain that “a covered entity may choose to

deny a claim” under either the 2016 or 2020 Rule. Id. The mere fact that insurers under the

2016 Rule could deny coverage based on individual determinations, however, does not vitiate the

reality of a substantially increased risk of injury posed by a categorical exclusion. It is by no

means speculative to conclude that, under the 2020 Rule, certain insurers will deny

reimbursement for treatment they previously covered. See Shanker Decl., ¶ 28 (asserting that

removing coverage requirements for insurance providers will cause patients to “most certainly

experience increased denials of coverage for their medically necessary health care”); Carpenter

Decl., ¶ 13 (mentioning patients’ fear that “they will no longer have access to hormone therapy

to treat gender dysphoria” as result of regulatory changes). Indeed, HHS itself admits that some

insurers will not maintain coverage consistent with the 2016 Rule’s requirements. See 85 Fed.

Reg. at 37,181. Plaintiffs need only show a “substantial risk” of the alleged harm, not an

37

outright certainty; they have carried that burden. Susan B. Anthony, 573 U.S. at 158; Attias, 865

F.3d at 627.

They likewise successfully establish causation and redressability. The D.C. Circuit has

repeatedly held that “injurious private conduct is fairly traceable to the administrative action

contested in the suit if that action authorized the conduct or established its legality.” Tel. & Data

Sys., Inc. v. FCC, 19 F.3d 42, 47 (D.C. Cir. 1994); see also Nat’l Wrestling Coaches Ass’n v.

Dep’t of Educ., 366 F.3d 930, 940 (D.C. Cir. 2004), abrogation on other grounds recognized in

Perry Capital LLC v. Mnuchin, 864 F.3d 591 (D.C. Cir. 2017) (collecting cases). Here, the

injurious private conduct — insurers’ eliminating prohibitions on categorical coverage

exclusions of gender-affirming care — was illegal under the 2016 Rule but made permissible by

the 2020 Rule. See Tel. & Data Sys., 19 F.3d at 47. The requisite causation, therefore, exists.

See Cares Cmty. Health v. HHS, 346 F. Supp. 3d 121, 127 (D.D.C. 2018) (finding injury fairly

traceable to government action even though monetary injury caused by insurance company’s

modifying contract because such modification “would be unlawful” in absence of government

action). An order restoring the 2016 Rule’s prohibition on categorical coverage exclusions,

moreover, would redress Plaintiffs’ injury. See Nat’l Wrestling Coaches, 366 F.3d at 940–41

(“Causation and redressability thus are satisfied in this category of cases, because the intervening

choices of third parties are not truly independent of government policy.”).

ii. Elimination of Notice Requirements

Plaintiffs next challenge HHS’s repeal of the 2016 Rule’s requirement that covered

entities provide various notices and taglines informing the public of their nondiscrimination and

accessibility rights under Section 1557. Their alleged injury stemming from that repeal once

38

again centers on harm to the organizations themselves, most urgently in the form of increased

costs.

According to Plaintiff Whitman-Walker, the 2016 Rule’s notice and tagline provisions

“are critical to ensure meaningful access to care.” Shafi Decl., ¶ 32. Those provisions required

that covered entities issue notice to the public that they provide, among other things, language-

assistance services, including translated documents and oral interpretation. See 81 Fed. Reg. at

31,469 (formerly codified at 45 C.F.R. § 92.8); see also id. at 31,470 (formerly codified at 45

C.F.R. § 92.201) (detailing covered entities’ language-access obligations). Plaintiffs argue that

notice of the availability of such services is “crucial to promoting positive patient health

outcomes” by way of ensuring full communication between patient and provider. See Henn

Decl., ¶¶ 16, 25. Indeed, even HHS acknowledged that at least some covered entities likely

“experienced an increase in translation services after the 2016 Rule.” 85 Fed. Reg. at 37,233.

Removal of such notices, in turn, renders it increasingly difficult for patients with limited

English proficiency (LEP) to understand their rights to language services and how they can

utilize them, thereby hindering access to meaningful health care. See Shafi Decl., ¶ 32

(explaining that LEP patients “will not be aware of their rights or the programs or services

available to them when they go to other health care facilities”); Pumphrey Decl., ¶ 13; Henn

Decl., ¶ 25; see also 85 Fed. Reg. at 37,233 (acknowledging record evidence that “removing the

notice and taglines requirements may cause [LEP] individuals to delay care or not receive care

until their medical issues are more severe and costlier to treat”).

The implication for Whitman-Walker is clear: provision of costlier and more difficult

treatment. As previously described, see supra at 21–23, inadequate care elsewhere leads to

increased patient demand, as well as a patient pool with conditions that are increasingly

39

advanced at diagnosis and less responsive to treatment. The elimination of notice and tagline

provisions once again perpetuates these concrete harms. See Shafi Decl., ¶ 33 (explaining that

Whitman-Walker will experience “increased costs because its patients will come to us sicker as a

result of inadequate care elsewhere”); Henn Decl., ¶ 25 (asserting that elimination of notice

requirements will “diminish[] . . . meaningful access to health care” and will, in turn, “cause

more patients to seek out care at Whitman-Walker”); see also Shanker Decl., ¶ 27 (stating that

elimination of notice and tagline requirements will “make it much more difficult for transgender

and gender nonconforming patrons . . . to understand their rights and how to advocate for such

rights”); Salcedo Decl., ¶ 41 (explaining that without the notices, patients “will avoid seeking

care until they feel they are sufficiently proficient in speaking and reading English, which will

worsen their underlying and untreated medical conditions”).

In response, Defendants insist that Plaintiff organizations “remain free to voluntarily

provide the notices required by the 2016 Rule.” Def. Opp. at 12. True, but irrelevant. As

explained, the harm Plaintiffs experience occurs when other providers do not post notices.

Defendants also misunderstand the scope of the present Motion. Their surreply contends

exclusively that Plaintiffs lack standing to challenge HHS’s changes to language-access

provisions, in part because they have not demonstrated imminent harm. See Def. Surreply at 6–

7; see also Def. Opp. at 25–26. While Plaintiffs’ opening brief is admittedly ambiguous as to

whether they challenge regulatory action in addition to HHS’s repeal of the notice and tagline

requirements, their reply concentrates nearly exclusively on the repeal of those latter provisions.

See Pl. Reply at 14–16; see also Hrg. Tr. at 22–23 (Plaintiffs stating that present Motion focuses

on this repeal). In any event, Plaintiffs’ asserted injury does not require the Court to assume “a

highly attenuated chain of possibilities.” Clapper, 568 U.S. at 410. Rather, “a substantial risk of

40

harm exists already,” simply by virtue of the elimination of the notice and tagline requirements,

which Plaintiffs have demonstrated will likely bear tangible implications for Whitman-Walker’s

provision of services. See Attias, 865 F.3d at 629.

Causation and redressability, once again, are easily established. The injurious private

conduct — namely, providers’ declining to deliver notices of patients’ health-care rights under

Section 1557 — was illegal under the 2016 Rule, but made permissible by the 2020 Rule. That

reality renders such conduct “fairly traceable to the administrative action contested.” Tel. &

Data Sys., 19 F.3d at 47. And an order restoring the 2016 Rule’s notice and tagline requirement

would redress Plaintiffs’ injury because covered entities would once again be required to provide

them. See Nat’l Wrestling Coaches, 366 F.3d at 940–41.

iii. Narrowing Scope of Covered Entities

As previewed above, Plaintiffs’ standing arguments are not all successful; indeed, they

encounter significantly rockier terrain with respect to the claims that follow. The Court begins

with their dual contentions that the 2020 Rule 1) improperly restricted Section 1557’s coverage

to programs or activities administered by HHS under Title I of the ACA, as opposed to all of the

agency’s health programs and activities; and 2) improperly excluded entities principally engaged

in providing health insurance from Section 1557’s coverage. Their fleeting attempt to invoke

standing to challenge these regulatory actions is muddled at best and does not enable the Court,

at this juncture, to conclude that they have stated a constitutionally cognizable injury.

Plaintiffs cite several declaration excerpts in support of their standing to challenge HHS’s

narrowing of entities covered under Section 1557. See Pl. Reply at 6; Hrg. Tr. at 15. All,

however, share common defects. Two declarations simply allege that such narrowing “will

result in discrimination against LGBTQ patients.” Shafi Decl., ¶ 28; see also Cummings Decl.,

41

¶ 31 (similar). The health-professional-association Plaintiffs similarly assert that the 2020 Rule

“invites harassment and discriminatory treatment of GLMA members with regard[] to terms and

conditions of employment based on their LGBTQ status.” Pl. Mot., Exh. 12 (Declaration of

Hector Vargas), ¶ 18; see also Harker Decl., ¶¶ 16–17 (contending that members “could lose

regulatory protections from discrimination regarding . . . employment benefits” and “may be

subjected to discrimination”). In addition, a GLMA member who works for the Indian Health

Service — which, as a non-Title I program, would no longer be covered by Section 1557 —

states that she “will no longer . . . be protected from discrimination in health care pursuant to

Section 1557.” Pl. Mot., Exh. 14 (Declaration of Deborah Fabian), ¶¶ 2, 5, 21. Finally,

TransLatin@ Coalition members who rely on public-health-insurance coverage through

Medicaid — which also would no longer enjoy Section 1557’s protections — allege that they

will suffer discrimination. See Inurritegui-Lint Decl., ¶¶ 56–58; Salcedo Decl., ¶¶ 38–39.

The Court cannot credit these bids for standing. To satisfy Article III’s strictures, the

reader will well recall, Plaintiffs must demonstrate that the alleged future injury is “imminent.”

Bennett v. Spear, 520 U.S. 154, 167 (1997); see also Whitmore, 495 U.S. at 158 (“Allegations of

possible future injury do not satisfy the requirements of [Article] III.”). To “shift[] injury from

‘conjectural’ to ‘imminent,’” Plaintiffs must show that there is a “substantial . . . probability” of

injury. Sherley, 610 F.3d at 74. Simply asserting, without any elaboration, that individuals will

experience discrimination at the hands of Title I programs and health insurers does not “suffice[]

to demonstrate the ‘substantial probability’” that discrimination will actually occur as required to

establish standing. Chamber of Commerce v. EPA, 642 F.3d 192, 201 (D.C. Cir. 2011). Equally

glaring is the absence of any explanation as to how Plaintiffs’ alleged injury is caused by these

regulatory actions. That is, they never attempt to demonstrate how narrowing the scope of

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covered entities will give rise to injury, let alone provide “substantial evidence” in support of

such a “causal relationship.” Americans for Safe Access, 706 F.3d at 446 (citation omitted).

Separately, Plaintiff Bradbury-Sullivan Center suggests that it “no longer will be able to

rely” on the 2016 Rule’s “clear guidance” when advocating for patrons “when they encounter . . .

insurance coverage exclusions.” Pl. Reply at 8 (citing Shanker Decl., ¶¶ 8-9). Even assuming

that the elimination of such guidance sufficiently “impair[s] [its] ability to provide services,”

nowhere does Bradbury-Sullivan explain how it has or will “use[] its resources to counteract that

harm” — specifically, its alleged diminished ability to advocate on behalf of patients to insurers.

See Food & Water Watch, 808 F.3d at 919 (citation omitted).

While Plaintiffs’ inability to establish “a substantial likelihood of standing” requires

denial of their present Motion with respect to these two claims regarding the scope of Section

1557’s coverage, this is not necessarily the end of the line. The Court does not rule out the

potential for Plaintiffs to better support their standing argument in the future with revamped

allegations. See Food & Water Watch, 808 F.3d at 913. For instance, their briefs contain no

mention of representational standing, which would provide them a chance to assert standing

premised on future harm to their members and patients. See Chamber of Commerce, 642 F.3d at

199 (representational-standing criteria); Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009)

(requiring Plaintiffs to “make specific allegations establishing that at least one identified member

had suffered or would suffer harm”). To be successful, of course, any such effort would need to

address the various shortcomings identified in this Opinion.

iv. Section 1557 Legal Standard

The Court need not expend much effort in concluding that Plaintiffs similarly lack

standing to assert their final Section 1557 claim. To spell out the precise dispute: Section 1557

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states that “[t]he enforcement mechanisms provided for and available under such title VI, title

IX, section [504 of the Rehabilitation Act], or such Age Discrimination Act shall apply for

purposes of violations of this subsection.” 42 U.S.C. § 18116(a). The 2020 Rule requires

would-be plaintiffs to employ the particular enforcement mechanism and accompanying legal

standard available under each statute, depending on the precise ground of discrimination

asserted. See 85 Fed. Reg. at 37,202. In other words, a litigant bringing a claim based on race

discrimination in violation of Title VI cannot employ the enforcement mechanism available for

sex discrimination under Title IX. Plaintiffs, on the other hand, contend that Section 1557

created a new, health-specific, anti-discrimination cause of action subject to a singular standard.

By their lights, Section 1557 allows a plaintiff to invoke the enforcement mechanism of any of

the incorporated statutes for a health-discrimination claim, regardless of the particular type of

discrimination alleged. See Pl. Mot. at 27.

Plaintiffs’ theory of standing for this challenge is murky, to say the least. Nowhere do

they suggest that HHS’s interpretation of the standard for Section 1557 claims causes LGBTQ

individuals to fear discrimination, or even that it exposes them to a heightened risk of

discrimination. Nor do Plaintiffs contend that the regulatory action causes them organizational

injury. Instead, they briefly reference excerpts from declarations emphasizing the challenges

posed by the possibility of intersectional discrimination — that is, discrimination based on

multiple protected grounds. According to one declarant, “Rather than being able to assert claims

under a single legal standard, intersectional discrimination claims will be subject to different

standards, enforcement mechanisms, and remedies based on which characteristics are at issue.”

Salcedo Decl., ¶ 37. That result, in turn, will “have a particularly harmful effect” on claimants

“because discrimination based on sexual orientation, gender identity, transgender status, national

44

origin, disability, and LEP status does not occur in an identity vacuum.” Inurritegui-Lint Decl., ¶

52; see also ECF No. 37, Exh. 1 (AARP Amicus Brief) at 10–12 (describing intersectional

discrimination experienced by LGBTQ older adults).

Much like before, however, Plaintiffs have not established that any future discrimination

— especially discrimination causing an individual to actually sue under Section 1557 — would

be sufficiently “imminent” to qualify as a valid injury-in-fact. Summers, 555 U.S. at 493. Even

if it were, Plaintiffs could not plausibly allege that such discrimination would be “fairly

traceable” to HHS’s interpretation of Section 1557’s legal standard in the 2020 Rule. Id.

The proper context for quarrels surrounding the legal standard for Section 1557 claims

would be an actual lawsuit bringing such a claim. There, a plaintiff could argue that Section

1557 permits her to assert various discrimination counts under a single legal standard, and that

HHS’s interpretation to the contrary is inconsistent with the statutory text. Indeed, numerous

courts entertaining claims of discrimination under Section 1557 have grappled with these precise

arguments. See, e.g., Briscoe v. Health Care Serv. Corp., 281 F. Supp. 3d 725, 737–38 (N.D. Ill.

2017); York v. Wellmark, Inc., No. 16-627, 2017 WL 11261026, at *16–18 (S.D. Iowa 2017);

Galuten ex rel. Galuten v. Williamson Med. Ctr., No. 18-519, 2019 WL 1546940, at *5 (M.D.

Tenn. 2019). The posture of this case does not permit this Court to join them.

For these reasons, Plaintiffs cannot establish a “substantial likelihood of standing” to

challenge HHS’s interpretation of Section 1557’s legal standard. Electronic Privacy Info. Ctr.,

878 F.3d at 377.

B. Third-Party Standing

While it now emerges from the depths of its organizational-standing dive, having found

standing on six of the nine claims analyzed, the Court’s jurisdictional work is not complete. It

45

must now consider whether Plaintiffs can assert the rights of third-party LGBTQ patients to

bring three remaining constitutional counts.

Plaintiffs contend that the 2020 Rule runs afoul of the Fifth Amendment’s guarantees of

equal protection and substantive due process, as well as the First Amendment’s promise of free

speech. Specifically, they claim that the regulation 1) “discriminates on the basis of sex,

transgender status, and sexual orientation,” in violation of equal protection; 2) impedes “the right

to live openly and express oneself consistent with one’s sexual orientation or gender identity,” in

violation of substantive due process; and 3) “impermissibly chills LGBTQ patients . . . from

being open about their gender identity, transgender status, or sexual orientation,” in violation of

the First Amendment. See Pl. Mot. at 28, 31. These claims do not invoke organizational

injuries, but rather are clearly premised on the rights of individuals — that is, LGBTQ people.

While the organizational Plaintiffs never specify the precise basis for their standing to

assert these constitutional counts, several purport to bring claims on behalf of their patients or

members. See, e.g., Compl., ¶ 32 (health-provider Plaintiffs assert claims “on behalf of their

patients and recipients of services”); Pl. Reply at 7–8 (arguing that health-provider Plaintiffs

satisfy criteria to bring claims on behalf of their patients). The Court, accordingly, will examine

whether they may do so.

A litigant “generally must assert his own legal rights and interests, and cannot rest his

claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490,

499 (1975). That principle, however, is far from “absolute,” as courts have recognized that there

are circumstances in which it is “necessary to grant a third party standing to assert the rights of

another.” Kowalski v. Tesmer, 543 U.S. 125, 129–30 (2004). A plaintiff may bring suit on

behalf of a third party upon satisfying three criteria: 1) the plaintiff “must have suffered an

46

‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the

issue in dispute”; 2) the plaintiff “must have a close relation to the third party”; and 3) “there

must exist some hindrance to the third party’s ability to protect his or her own interests.” Powers

v. Ohio, 499 U.S. 400, 411 (1991) (quoting Singleton v. Wulff, 428 U.S. 106, 112–16 (1976)).

Because Plaintiffs satisfy these criteria with respect to the third parties in question — i.e., their

LGBTQ patients — they may assert equal-protection, substantive-due-process, and free-speech

claims on their behalf.

The first prong is “easily satisfied.” Lepelletier v. FDIC, 164 F.3d 37, 43 (D.C. Cir.

1999). As discussed above, the health-provider Plaintiffs have suffered an injury in fact —

financial and operational harm — thus giving them a “‘sufficiently concrete interest’ in the

outcome of the issue in dispute.” Powers, 499 U.S. at 411 (quoting Singleton, 428 U.S. at 112).

The second criterion also goes Plaintiffs’ way. The requirement that a plaintiff have a

“close relation” to the relevant third party, Powers, 499 U.S. at 411, is “to ensure that the

plaintiff will act as an effective advocate for the third party.” Lepelletier, 164 F.3d at 43 (citation

omitted). For the requirement to be fulfilled, “the relationship between the litigant and the third

party may be such that the former is fully, or very nearly, as effective a proponent of the right as

the latter.” Singleton, 428 U.S. at 115; see also Lepelletier, 164 F.3d at 45 (remarking that third-

party standing “does not require a perfect match” between interests).

Here, “there can be no doubt” that the health-provider Plaintiffs will be “motivated,

effective advocate[s]” for their LGBTQ patients. Powers, 499 U.S. at 414. Whitman-Walker,

for instance, “has a special mission to serve the LGBTQ community” and provides a range of

community-based health and wellness services. See Compl., ¶ 37; Shafi Decl., ¶ 3. Nearly 45%

of its patients identified as lesbian, gay, bisexual, or otherwise non-heterosexual, and more than

47

10% identified as transgender or gender nonconforming. See Compl., ¶ 37. Whitman-Walker

even has an in-house legal-services department that exists to help LGBTQ patients combat

discriminatory barriers to accessing quality health care. See Shafi Decl., ¶ 16. Just as the

elimination of the 2016 Rule’s explicit prohibition on discrimination based on sex stereotyping

and gender identity and incorporation of Title IX’s religious exemption will likely cause

Whitman-Walker financial and operational injury, those same provisions instill in many LGBTQ

patients a heightened fear of discrimination that will lead to worsened health outcomes. It seems

clear that Whitman-Walker shares a “common interest” with LGBTQ patients, Powers, 499 U.S.

at 413, such that the organization will serve as “an effective advocate” for them. Lepelletier, 164

F.3d at 43 (citation omitted).

Defendants do not contest any of the above. Instead, they briefly contend that Plaintiffs

do not have a “close relation” with their potential future patients “who may experience alleged

discrimination as a result of visiting other healthcare providers.” Def. Surreply at 10. There are

multiple problems with this argument. First, some of the individuals on whose behalf the health-

provider Plaintiffs assert claims appear to be current patients. See Compl., ¶ 32; Pl. Reply at 7.

For instance, those Plaintiffs maintain that the 2020 Rule undermines their ability to treat current

patients by contributing to considerable financial and operational challenges. See Shafi Decl.,

¶¶ 34–36; Carpenter Decl., ¶¶ 12, 16; Cummings Decl., ¶ 33. Defendants do not suggest the

absence of a “close relation” in these circumstances.

In any event, Defendants are wrong to suggest that the health-provider Plaintiffs cannot

assert the rights of LGBTQ patients they might treat in the future. The Supreme Court recently

observed that “[w]e have long permitted abortion providers to invoke the rights of their actual or

potential patients in challenges to abortion-related regulations.” June Med. Servs. LLC v. Russo,

48

140 S. Ct. 2103, 2118 (2020) (plurality opinion) (emphasis added) (citing cases); see also id. at

2139 n.4 (Roberts, C.J., concurring in the judgment) (agreeing with plurality’s third-party-

standing analysis). There is no reason to think it should be any different in the case of LGBTQ

health-care providers. To be sure, and as Defendants point out, Kowalski v. Tesmer declined to

allow attorneys to assert the rights of future, “as yet unascertained” criminal defendants. See 543

U.S. at 130–31; Def. Surreply at 10. In that situation, however, the class of potential third parties

could have been literally any person. By contrast, the health-provider Plaintiffs’ present bid

involves a far more limited universe of third parties — LGBTQ individuals seeking health care.

And that universe bears notable resemblance to the similarly confined pool of women seeking

abortions, where physicians can invoke the rights of unknown potential patients. Plaintiffs,

accordingly, satisfy the second prong of the Powers test.

Finally, Plaintiffs make it a trifecta by successfully showing that there exists “some

hindrance” to third-party patients’ “ability to protect [their] own interests.” Powers, 499 U.S. at

411. “There is no denying that transgender individuals face discrimination, harassment, and

violence because of their gender identity.” Whitaker v. Kenosha Unified Sch. Dist., 858 F.3d

1034, 1051 (7th Cir. 2017). Numerous courts have recognized that disclosure of transgender

status may expose individuals to “a substantial risk of stigma, discrimination, intimidation,

violence, and danger.” Arroyo Gonzalez v. Rossello Nevares, 305 F. Supp. 3d 327, 333 (D.P.R.

2018); see also, e.g., F.V. v. Barron, 286 F. Supp. 3d 1131, 1137–38 (D. Id. 2018); Ray v.

Director, No. 18-272, 2018 WL 8804858, at *1 (S.D. Ohio Apr. 5, 2018). Plaintiffs have alleged

the same here. See Bolan Decl., ¶ 7 (“Many if not most of the individuals in our very diverse

patient population face considerable stigma and discrimination.”); Inurritegui-Lint Decl., ¶ 28;

Salcedo Decl., ¶ 31; Shanker Decl., ¶ 21. Indeed, this situation closely resembles Singleton,

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where the Supreme Court allowed physicians to assert the rights of women seeking abortions

after noting that they “may be chilled from such assertion by a desire to protect the very privacy

of [their] decision[s] from the publicity of a court suit.” 428 U.S. at 117–18.

All Defendants say in response is that the fact that LGBTQ patients themselves sued as

plaintiffs to challenge the 2020 Rule in another jurisdiction “undercuts plaintiffs’ claim that their

own patients are prevented from mounting challenges of their own.” Def. Surreply at 10 (citing

Walker v. Azar, No. 20-2834 (E.D.N.Y. 2020)). Yet the final Powers prong “does not require an

absolute bar from suit.” Pa. Psychiatric Soc. v. Green Spring Health Servs., Inc., 280 F.3d 278,

290 (3d Cir. 2002). It is enough that “patients’ fear of stigmatization . . . operates as a powerful

deterrent to bringing suit.” Id.; see also id. at 290 n.14 (explaining that “cases do not demand an

absolute impossibility of suit in order to fall within the [impediment] exception”) (alteration in

original) (quoting 15 James Wm. Moore et al., Moore’s Federal Practice § 101.51 [3][c]);

Singleton, 428 U.S. at 117–18 (acknowledging that suit could have been brought under

pseudonym, but nevertheless finding third-party standing when woman’s desire to protect

privacy could discourage her from suing). Plaintiffs have made that showing here.

The health-provider Plaintiffs, accordingly, have standing to assert the equal-protection,

substantive-due-process, and free-speech rights of third-party LGBTQ patients.

IV. Analysis

With its protracted jurisdictional prelude finally concluded, the Court may now finally

turn to the four preliminary-injunction factors. It separately looks at likelihood of success on the

merits and irreparable harm before jointly considering the balance of the equities and the public

interest.

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A. Likelihood of Success on the Merits

As to the first prong, the Court finds that Plaintiffs have shown their likelihood of success

with respect to their claims that HHS: 1) improperly eliminated explicit prohibitions within the

2016 Rule’s definition of sex discrimination; and 2) improperly incorporated Title IX’s religious

exemption into Section 1557. They do not fare as well on the remaining counts for which they

have demonstrated standing — namely, their claims that HHS: 3) erroneously eliminated the

2016 Rule’s prohibition on categorical coverage exclusions for gender-affirming care; 4)

improperly repealed the 2016 Rule’s notice requirements; and 5) violated Section 1554. In

addition, as a result of the Court’s disposition of these claims, Plaintiffs’ four constitutional

counts entitle them to no further relief. The Court separately analyzes all of these questions.

1. Elimination of 2016 Rule’s Definition of Sex Discrimination

As previously recounted, the 2016 Rule defined discrimination “[o]n the basis of . . . sex”

to include “discrimination on the basis of . . . sex stereotyping, and gender identity.” 81 Fed.

Reg. at 31,467 (formerly codified at 45 C.F.R. § 92.4). The 2020 Rule, however, repealed this

definition entirely, and none of its provisions contains any reference whatsoever to “sex

stereotyping” or “gender identity.” Plaintiffs attack this policy change as arbitrary and

capricious, largely in light of the Supreme Court’s intervening decision in Bostock. The Court

concurs.

When an agency changes or reverses a prior policy, it must first “display awareness that it

is changing position.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). It may

not, for example, “depart from a prior policy sub silentio.” Id. The agency also “must show that

there are good reasons for the new policy,” id., and must “supply a reasoned analysis for the

change.” Ark Initiative v. Tidwell, 816 F.3d 119, 127 (D.C. Cir. 2016) (quoting Motor Vehicle

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Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 42 (1983)); see also State Farm, 463

U.S. at 43 (“[T]he agency must examine the relevant data and articulate a satisfactory

explanation for its action including a ‘rational connection between the facts found and the choice

made.’”) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). Agency

action is arbitrary and capricious if the agency “entirely failed to consider an important aspect of

the problem.” Id.

This framework plainly applies to the present case. While the 2016 Rule made clear that

sex discrimination includes discrimination based on sex stereotyping and gender identity, the

2020 Rule contains no such provision. As Defendants seem to concede, this regulatory reversal

represents a change in prior policy under Fox. See Def. Opp. at 18 (acknowledging that HHS’s

“position had changed”) (citing Fox, 556 U.S. at 514).

Turning, then, to the analysis under Fox, it is undisputed that HHS has discharged its

initial obligation to “display awareness that it is changing position” when it issued the final rule.

Fox, 556 U.S. at 515. The agency acknowledged that the 2016 Rule included sex stereotyping

and gender identity within its prohibition on sex discrimination, see 85 Fed. Reg. 37,236, but

nevertheless explained that the 2020 Rule “eliminates” that provision and omits any such

definitional language. Id. at 37,161–62; see also id. at 37,178 (acknowledging that the 2020 Rule

“repeals the 2016 Rule’s definition of ‘on the basis of sex’”).

The agency, however, has not fulfilled its obligation to provide either “good reasons,”

Fox, 556 U.S. at 515, or a “reasoned analysis” supporting its policy change. State Farm, 463

U.S. at 42. Before the Court explains why, however, it must refer back to its earlier standing

holding. Attentive readers will recall that the Court previously determined that Plaintiffs lack

standing to challenge HHS’s repeal of the 2016 Rule’s prohibition on gender-identity

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discrimination, given the Texas decision vacating that language. That conclusion, however, does

not mean that the prohibition on gender-identity discrimination is entirely irrelevant to the

present merits discussion. On the contrary, the Court’s assessment of HHS’s reasoning for its

repeal of the 2016 Rule’s sex-stereotyping provision necessarily includes some consideration of

the gender-identity provision. That is so for a simple and intuitive reason: the two concepts

share substantial overlap.

Discrimination based on transgender status — i.e., gender identity — often cannot be

meaningfully separated from discrimination based on sex stereotyping because the belief that an

individual should identify with only their birth-assigned sex is such a sex-based stereotype. See,

e.g., Adams ex rel. Kasper v. School Bd. of St. John’s Cty., No. 18-13592, 2020 WL 4561817, at

*9 (11th Cir. Aug. 7, 2020) (“Because [plaintiff] was assigned a female sex at birth but identifies

consistently and persistently as a boy and presents as masculine, he defies the stereotype that

one’s gender identity and expression should align with one’s birth sex.”); Whitaker, 858 F.3d at

1048 (“By definition, a transgender individual does not conform to the sex-based stereotypes of

the sex that he or she was assigned at birth.”); Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir.

2011) (“A person is defined as transgender precisely because of the perception that his or her

behavior transgresses gender stereotypes.”). Indeed, HHS itself admits the possibility that the

2016 Rule deployed the term “sex stereotyping . . . to encompass gender identity.” 85 Fed. Reg.

at 37,236. Nor do Defendants ever dispute Plaintiffs’ contention that “the flaws that permeated

the rulemaking process with respect to the elimination of ‘gender identity’ apply equally to the

elimination of ‘sex stereotyping.’” ECF No. 47 (Plaintiffs’ Clarification Regarding Response) at

1; see also Hrg. Tr. at 21–22 (similar). For these reasons, even though the Court may only grant

Plaintiffs relief with respect to HHS’s elimination of the prohibition on discrimination based on

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sex stereotyping, the agency’s reasoning regarding the gender-identity provision necessarily

informs its treatment of the sex-stereotyping provision.

HHS’s shortcomings begin in the preamble to the 2020 Rule. “[T]he preamble to a

regulation is evidence of an agency’s contemporaneous understanding of its proposed rules.” It

may serve, accordingly, “as a source of evidence concerning contemporaneous agency intent.”

Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 53 (D.C. Cir. 1999); see also Harman

Min. Co. v. Director, 678 F.3d 305, 315–16 (4th Cir. 2012) (explaining that regulatory preamble

may serve “as a source of explanation as to [agency’s] rationale in amending . . . regulations”);

CHW West Bay v. Thompson, 246 F.3d 1218, 1226–27, 1230 (9th Cir. 2001) (looking to

regulation’s preamble as evidence that agency action was arbitrary and capricious). It follows

that the Court may consider HHS’s statements in the preamble to the 2020 Rule as part of the

agency’s explanation underlying its action, which “will enable the court to evaluate the agency’s

rationale at the time of decision.” Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 654

(1990). Indeed, Defendants themselves admit that “a Rule’s preamble may help determine

whether an Agency’s decision to adopt a particular approach was supported by adequate

reasoning.” Def. Opp. at 16. Even if the preamble “lacks the force and effect of law,” Saint

Francis Med. Ctr. v. Azar, 894 F.3d 290, 297 (D.C. Cir. 2018), Defendants thus do not appear to

dispute that the Court may consider HHS’s statements therein when assessing whether the

explanation for its action is satisfactory.

Here, the 2020 Rule’s preamble brings into stark relief HHS’s position that

discrimination based on transgender status does not qualify as sex discrimination under Section

1557. The agency repeatedly explained that “the term ‘on the basis of . . . sex’ in Section 1557

does not encompass discrimination on the basis of gender identity.” 85 Fed. Reg. at 37,191; see

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also, e.g., id. at 37,183 (disagreeing with commenters “who contend that Section 1557 or Title

IX encompass gender identity discrimination within their prohibition on sex discrimination”); id.

at 37,168, 37,179–80, 37,194 (similar). It is evident that these legal conclusions drove the

agency’s decision to eliminate the 2016 Rule’s inclusion of gender identity and sex stereotyping

in its definition of sex discrimination. As HHS insisted in issuing the 2020 Rule, that prior

definition “exceeded the scope of the authority delegated by Congress in Section 1557,” id. at

37,161, imposing legal requirements “that cannot be justified by the text of Title IX, and in fact

are in conflict with express exemptions in Title IX.” Id. at 37,162; see also Walker, 2020 WL

4749859, at *9 (“It is clear from the preamble . . . that a central reason for HHS’s action was a

fundamental disagreement as to whether Title IX — and, by implication, § 1557 — prohibited

discrimination based on gender identity and sex stereotyping.”). By eliminating the explicit

prohibitions, HHS explained, the 2020 Rule “bring[s] the provisions of the Code of Federal

Regulations into compliance with the underlying statutes.” 85 Fed. Reg. at 37,162.

Four days before HHS published the final rule, however, the Supreme Court issued a

decision that — at the very least — called the validity of HHS’s legal determinations into serious

question. In Bostock, it held that under Title VII, discrimination based on transgender status or

sexual orientation “necessarily entails discrimination based on sex.” 140 S. Ct. at 1747. The

Court reached that conclusion through a “straightforward application” of the statutory text,

which prohibits employers from discriminating against any individual “because of . . . sex.” Id.

at 1743; 42 U.S.C. § 2000e–2(a)(1). As the Court ultimately found, “[I]t is impossible to

discriminate against a person for being homosexual or transgender without discriminating

against that individual based on sex.” Bostock, 140 S. Ct. at 1741.

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These principles plainly have implications for Title IX’s prohibition on sex

discrimination and, by extension, Section 1557. As previously recounted, Title IX bars

discrimination “on the basis of sex.” 20 U.S.C. § 1681(a). The reasoning of Bostock, at a

minimum, suggests the possibility that this provision encompasses discrimination based on

transgender status. There is no apparent reason why the Court’s conclusion — that it is

“impossible” to discriminate based on transgender status without discriminating based on sex,

see 140 S. Ct. at 1741 — would remain cabined to Title VII and not extend to other statutes

prohibiting sex discrimination. Put another way, just as “sex plays an unmistakable and

impermissible role” in any decision to treat otherwise identical individuals differently simply

because they possess different gender identities under Title VII, the same would appear to be true

under Title IX. See id. at 1741–42. Indeed, two courts of appeals have already so held. See

Adams, 2020 WL 4561817, at *11–12 (applying Bostock and concluding that “Title IX, like

Title VII, prohibits discrimination against a person because he is transgender, because this

constitutes discrimination based on sex”); Grimm v. Gloucester Cty. Sch. Bd., No. 19-1952,

2020 WL 5034430, at *21, 24 n.18 (4th Cir. Aug. 26, 2020) (similar). There exists a fairly

strong case, therefore, that application of Bostock’s textual analysis to Title IX (by way of

Section 1557’s incorporation of that statute) would yield the conclusion that the statute forbids

discrimination based on gender identity and sex stereotyping, insofar as such stereotypes are

based on the belief that an individual should identify with only their birth-assigned sex. Cf.

Bostock, 140 S. Ct. at 1778–81 & n.57 (Alito, J., dissenting) (discussing potential

“consequences” of Court’s Title VII holding for statutes such as Title IX and Section 1557).

Notwithstanding Bostock’s clear import for the meaning of discrimination based on sex

under Title IX, HHS plowed ahead with the 2020 Rule implementing that precise statutory

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phrase without even pausing to consider the Court’s decision. The Department’s 89-page final

rule contains no discussion whatsoever of Bostock’s reasoning or how the case might apply to

Title IX. Indeed, HHS did not even acknowledge Bostock’s holding. The agency instead clung

to its position that “Title IX does not encompass discrimination on the basis of sexual orientation

or gender identity,” 85 Fed. Reg. at 37,168, and it repeatedly invoked that conclusion as

justification for its elimination of the 2016 Rule’s provision to the contrary. Id. at 37,161–62.

HHS so acted despite itself admitting that “a holding by the U.S. Supreme Court on the meaning

of ‘on the basis of sex’ under Title VII will likely have ramifications for the definition of ‘on the

basis of sex’ under Title IX.” Id. at 37,168 (emphasis added).

“The APA requires reasoning, deliberation, and process.” California v. Bernhardt, No.

18-5712, 2020 WL 4001480, at *16 (N.D. Cal. July 15, 2020). HHS should have at least

considered the import of Bostock for the reasons underlying its regulatory action — namely, the

agency’s belief that Title IX does not prohibit discrimination based on transgender status —

before it eliminated regulatory language providing for precisely what Bostock seemed to

guarantee. The agency’s failure to take that obvious deliberative step prevents the Court from

finding that its policy change was supported by “reasoned analysis” and compels the conclusion

that its action was arbitrary and capricious. State Farm, 463 U.S. at 42. In so holding, the Court

aligns itself with the Eastern District of New York’s recent resolution of a similar challenge to

the 2020 Rule. See Walker, 2020 WL 4749859, at *9–10 (finding repeal of 2016 Rule’s

definition of sex discrimination arbitrary and capricious in light of agency’s failure to consider

implications of Bostock).

Defendants offer several arguments in response, but none is persuasive. They begin by

positing that the district court’s decision in Franciscan Alliance “compelled” HHS to “not

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includ[e] an expanded definition of ‘on the basis of sex’” in the 2020 Rule because that case

“vacated the language contained in the previous rule that plaintiffs now advocate for.” Def. Opp.

at 16. There are multiple problems with this argument. First, Defendants’ premise is mistaken.

As previously explained, Franciscan Alliance only vacated the 2016 Rule “insofar as the Rule

defines ‘On the basis of sex’ to include gender identity” and one other provision not relevant

here. Franciscan Alliance Order at ECF p. 3. The court made clear that the “remainder of 45

C.F.R. § 92 remains in effect.” Id. Franciscan Alliance, accordingly, did not vacate the 2016

Rule’s definitional provision relating to sex stereotyping; indeed, the decision never even

mentioned it. See 414 F. Supp. 3d 928. Defendants thus cannot contend the decision was

“reason enough for HHS to release the 2020 Rule in its current form.” Def. Opp. at 17.

In addition, contrary to Defendants’ assertion, nothing in Franciscan Alliance

“compelled” HHS in any sense of the word with respect to the present rulemaking. See Def.

Opp. at 16. Franciscan Alliance simply vacated a portion of the 2016 Rule’s definition of

discrimination on the basis of sex. It did not order the agency to do anything in particular when

promulgating a future rule implementing Section 1557, or even to conduct another rulemaking at

all. In fact, nothing in Franciscan Alliance prevented HHS from re-promulgating the very

provisions that the court vacated. To be sure, any such regulation may have suffered the same

fate as the 2016 Rule in subsequent litigation, but the point is that the order in Franciscan

Alliance did not itself preclude HHS from following such a course. Defendants therefore cannot

suggest that the decision effectively bound the agency’s hands and “compelled” it to proceed as

it did. See Def. Opp. at 16.

Even worse, HHS failed entirely to consider the implications of Bostock for the agency’s

reliance on Franciscan Alliance — to wit, the possibility that the Supreme Court thoroughly

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undermined that earlier decision’s reasoning. Franciscan Alliance’s holding that Title IX’s

prohibition on sex discrimination did not include gender-identity discrimination was premised

entirely on the court’s belief that the statutory term “sex” “refer[red] to the biological differences

between males and females.” 227 F. Supp. 3d at 688. HHS, notably, drew from the

Government’s losing litigating position in Bostock to make this same argument. See 85 Fed.

Reg. at 37,178–79. Bostock, however, expressly assumed that “sex” “refer[red] only to

biological distinctions between male and female.” 140 S. Ct. at 1739. Whether or not the term

included some norms relating to gender identity was immaterial, the Court explained, because it

is nevertheless “impossible” to discriminate based on transgender status without discriminating

based on sex. Id. at 1741. To be sure, contrary to Plaintiffs’ assertion, Bostock did not render

Franciscan Alliance’s vacatur “a legal nullity.” Pl. Reply at 3. That disposition remains on the

books. But HHS could not continue to invoke it as justification for an independent regulatory

action without at least considering whether Bostock undermined the former decision’s very

basis.

Relatedly, Defendants contend that “HHS acted reasonably in finalizing its rule without

waiting for [Bostock]” because that decision “concerned a separate statute” — i.e., Title VII.

See Def. Opp. at 17. As HHS itself admitted, however, “Title VII case law has often informed

Title IX case law with respect to the meaning of discrimination ‘on the basis of sex,’” and a

decision in Bostock “will likely have ramifications” for Title IX. See 85 Fed. Reg. at 37,168.

That much has already become clear, as evidenced by two courts of appeals’ recent applications

of Bostock to conclude that Title IX likewise prohibits discrimination based on transgender

status. Adams, 2020 WL 4561817, at *11–12; Grimm, 2020 WL 5034430, at *21, 24 n.18.

Indeed, even apart from Bostock, several courts have independently concluded that Title IX

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prohibits discrimination based on sex stereotyping or gender identity. See, e.g., Whitaker, 858

F.3d at 1049; Dodds v. United States Dep’t of Educ., 845 F.3d 217, 221 (6th Cir. 2016). HHS

asserted vaguely that “the binary biological character of sex” may “take[] on special importance

in the health context,” leading to “implications” that a Title VII ruling “might not . . . fully

address[].” 85 Fed. Reg. at 37,168; see also id. at 37,185. Even if one grants HHS’s premise,

the mere possibility that Bostock may apply slightly differently in the health-care context does

not give the agency license to refuse to consider the decision entirely.

To be clear, the Court does not adopt Plaintiffs’ contention that Bostock “conclusively

rejects” HHS’s position that Title IX (and Section 1557) do not prohibit discrimination based on

transgender status. See Pl. Mot. at 14. It need not go so far, and it does not so hold today. It is

sufficient for the Court to determine that Bostock, at the very least, has significant implications

for the meaning of Title IX’s prohibition on sex discrimination, and that it was arbitrary and

capricious for HHS to eliminate the 2016 Rule’s explication of that prohibition without even

acknowledging — let alone considering — the Supreme Court’s reasoning or holding. See

Walker, 2020 WL 4749859, at *9 (“Whether or not it is dispositive of [the scope of sex

discrimination] with respect to Title IX and § 1557, Bostock is at least ‘an important aspect of

the problem.’”) (quoting State Farm, 463 U.S. at 43).

Finally, Defendants insist that the 2020 Rule cannot be arbitrary and capricious because it

simply regurgitates the plain, unobjectionable text of Section 1557. Specifically, they argue that

HHS “declin[ed] to include a definition of ‘on the basis of sex’ in the 2020 Rule,” and “Plaintiffs

cite no authority that would require a regulation to expand upon statutory text.” Def. Opp. at 15;

see also 85 Fed. Reg. at 37,244 (to be codified at 45 C.F.R. § 92.2). This misconstrues Plaintiffs’

argument. HHS did not adopt the 2020 Rule in a vacuum devoid of context or history. As

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previously explained, because the agency changed its position and opted to repeal a prior

regulatory provision, it needed to provide a “reasoned analysis for the change” and a

“satisfactory explanation for its action.” State Farm, 463 U.S. at 42–43; see also Fox, 556 U.S.

at 515; Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016). Regardless of the

ultimate regulation the agency adopts, the Court must assess the reasonableness of the agency’s

explanation for why it made the change. And here, HHS’s explanation is plainly insufficient, not

least because it neglected to consider in any fashion an intervening Supreme Court decision that

bore direct and undisputed consequences not only for the regulatory provision at issue, but also

for the validity and coherence of the reasons HHS provided for its action. The agency cannot

escape that conclusion by simply asserting that “the elimination of a regulatory definition of [a

statutory] term would not preclude application of the [Supreme] Court’s construction” of that

term’s meaning. See 85 Fed. Reg. at 37,168. When assessing the procedural validity of HHS’s

action, this Court remains obligated to “examin[e] the reasons” underlying HHS’s action.

Judulang v. Holder, 565 U.S. 42, 53 (2011).

The Court “do[es] not hold that the agency decision here was substantively invalid.”

Dep’t of Commerce, 139 S. Ct. at 2576. It “address[es] only whether the agency complied with

the procedural requirement that it provide a reasoned explanation for its action.” Dep’t of

Homeland Security v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1916 (2020). Nothing

prevents HHS from returning to the drawing board and attempting again to issue a regulation that

parrots Section 1557’s prohibition on sex discrimination. To be successful, however, any such

effort must exhibit what was sorely lacking here — namely, compliance with the APA’s

procedural mandates.

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2. Incorporation of Title IX’s Religious Exemption

Next up is the 2020 Rule’s incorporation of Title IX’s religious exemption. Plaintiffs

challenge that regulatory action as arbitrary and capricious, largely contending that HHS failed to

sufficiently consider the implications of such incorporation for access to health care. They are

correct.

As the reader well knows by this point, Section 1557 incorporates the particular grounds

of discrimination contained in four other civil-rights statutes. Once again relevant here is Title

IX. By referencing the “ground” of discrimination prohibited by Title IX, Section 1557 plainly

barred discrimination on the basis of sex. See 20 U.S.C. § 1681(a); 42 U.S.C. § 18116(a). It did

not, however, explicitly incorporate Title IX’s exemption of certain educational operations of

entities controlled by religious organizations from its nondiscrimination mandate. See 20 U.S.C.

§§ 1681(a), 1687. The 2016 Rule, accordingly, “decline[d] to . . . import Title IX’s blanket

religious exemption into Section 1557.” 81 Fed. Reg. at 31,380. HHS reached that conclusion

both because “Section 1557 itself contains no religious exemption” and because it found that a

categorical exemption would be inappropriate in the broader health-care context. Id.

The 2020 Rule, however, reversed course and explicitly incorporated Title IX’s religious

exemption into Section 1557’s nondiscrimination scheme. See 45 C.F.R. § 92.6(b)

(incorporating “exemptions” contained in various statutes, including Title IX). As imported into

the current regulation, such exemption could be read so as to enable any educational operation of

an entity controlled by a religious organization engaged in the provision of health care to evade

the statute’s prohibition on sex discrimination, if application of such prohibition would be

inconsistent with the organization’s religious tenets. See 20 U.S.C. §§ 1681(a), 1687; 85 Fed.

Reg. at 37,207–08. It is this incorporation that Plaintiffs challenge as arbitrary and capricious.

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The APA demands that an agency considering regulatory action “examine all relevant

factors and record evidence.” Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 923

(D.C. Cir. 2017). At a minimum, the agency “cannot entirely fail[] to consider an important

aspect of the problem.” State Farm, 463 U.S. at 43. Rather, it must “adequately analyze . . . the

consequences” of its actions. Am. Wild Horse, 873 F.3d at 932. In doing so, “[s]tating that a

factor was considered . . . is not a substitute for considering it.” Getty v. Fed. Savs. & Loan Ins.

Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986). The agency must instead provide more than

“conclusory statements” to prove that it “consider[ed] the [relevant] priorities.” Id. at 1057. For

instance, the D.C. Circuit has held that concerns raised in public comments are sufficient to alert

an agency to “an important aspect of the problem,” which the agency must consider lest its

action be deemed arbitrary and capricious. Gresham v. Azar, 950 F.3d 93, 103 (D.C. Cir. 2020).

Several of the 2016 Rule’s primary justifications for declining to incorporate Title IX’s

religious exemption into Section 1557 focused on the potential negative implications of such an

exemption for access to care and ultimate health outcomes. For instance, HHS referenced

statements from the “overwhelming majority of individual commenters” and “[m]ost”

commenting organizations that a religious exemption “would potentially allow for discrimination

on the bases prohibited by Section 1557 or for the denial of health services to women.” 81 Fed.

Reg. at 31,379. Such concerns, HHS concluded, counseled against a “blanket religious

exemption,” which “could result in a denial or delay in the provision of health care” and could

“discourag[e] individuals from seeking necessary care,” thereby generating “life threatening

results.” Id. at 31,380. The agency also found that there were “significant differences between

the educational and health care contexts that warrant different approaches.” Id. While families

selecting religious educational institutions “typically do so as a matter of choice,” individuals in

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the health-care context “may have limited or no choice of providers, particularly in rural areas or

where hospitals have merged with or are run by religious institutions,” or in “emergency

circumstances.” Id.

The 2020 Rule, however, “said almost nothing” about these important issues. Encino

Motorcars, 136 S. Ct. at 2127. Nowhere did HHS grapple with the policy grounds against

importing a religious exemption into Section 1557. More fundamentally, nowhere did it

consider the “consequences” of such an exemption for access to care, Am. Wild Horse, 873 F.3d

at 932, despite the fact that the “ACA’s intended purpose [is] to broaden access to health care.”

Morris v. Cal. Physicians’ Serv., 918 F.3d 1011, 1014 (9th Cir. 2019). To the extent the agency

even gestured at these issues, its discussion was patently insufficient to discharge its duty to

provide a “reasoned explanation” for its change in policy. Encino Motorcars, 136 S. Ct. at 2126.

For instance, at one point HHS asserted that the incorporation of Title IX’s religious

exemption will ensure patients receive “high-quality and conscientious care.” 85 Fed. Reg. at

37,206. Yet that “conclusory statement[]” was delivered entirely without elaboration or support.

Getty, 805 F.2d at 1057; see Gresham, 950 F.3d at 103 (“Nodding to concerns raised by

commenters only to dismiss them in a conclusory manner is not a hallmark of reasoned

decisionmaking.”). Indeed, one would think that the more likely outcome would be patients’

being denied care — a possibility HHS never acknowledged. Similarly, it did not even resist

comments stating that, more generally, “religious exemptions would make it harder to find

healthcare in low provider areas.” 85 Fed. Reg. at 37,218.

Defendants briefly insist that HHS “concluded” that a “religious exemption[] is unlikely

to lead to widespread diminishing of healthcare options for individuals.” Def. Op. at 31. But the

agency did no such thing. Indeed, it took no position whatsoever on the actual effects that a

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religious exemption would have, a reality confirmed by the very preamble excerpt Defendants

cite. There, HHS offered a vague summary of comments from select providers purportedly

seeking exemptions from “providing certain treatments,” not necessarily “from treating certain

patients”; comments from “[s]ome” hospitals that prohibit discrimination on the basis of gender

identity and sexual orientation; and comments from “[s]ome” religious providers that claim to

“have never refused to care for a patient on the grounds of their identity as an LGBT individual.”

85 Fed. Reg. at 37,206. The Court has no reason to dispute the truth of any of these comments.

HHS, however, cited them not as evidence that a religious exemption will preserve health-care

opportunities for individuals, but instead simply for the entirely unproductive proposition that

“members of the public hold different opinions concerning conscience and religious freedom

laws.” Id. At no point did the agency even assert that a religious exemption would preserve

meaningful access to health care for vulnerable populations — let alone provide evidence

supporting any such conclusion.

Attempting to skirt this deficiency, Defendants contend that HHS was neither required to

supply a more “detailed” justification for its policy reversal nor to “respond specifically” to the

2016 Rule’s discussion of the serious risks posed by a categorical religious exemption for the

prompt and nondiscriminatory provision of health care. See Def Opp. at 31 (quoting Nat’l Ass’n

of Home Builders v. EPA, 682 F.3d 1032, 1038 (D.C. Cir. 2011)); Fox, 556 U.S. at 502

(requiring “a more detailed justification” for policy reversal when “new policy rests upon factual

findings that contradict those which underlay [agency’s] prior policy”). Even assuming

Defendants are correct that the 2016 Rule’s rejection of a religious exemption did not rest upon

“factual findings” — a questionable premise, given HHS’s reliance on the documented potential

for denials and delays in health-care provision as a result of the exemption — their objection

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misses the point. The Court does not here require HHS to provide a more “detailed justification

than what would suffice for a new policy created on a blank slate.” Fox, 556 U.S. at 515. It

merely requires HHS to “consider an important aspect of the problem” — namely, the potential

negative consequences that importing a blanket religious exemption into Section 1557 might

have for access to health care. State Farm, 463 U.S. at 43. The agency’s dereliction of that

fundamental procedural obligation flunks the APA’s standards for reasoned decisionmaking.

See Gresham, 950 F.3d at 103 (holding agency action arbitrary and capricious for failing to

adequately consider potential for loss in health-care coverage as result of action); Am. Wild

Horse, 873 F.3d at 932 (faulting agency for “brush[ing] aside critical facts” and not “adequately

analyz[ing]” consequences of decision).

To be sure, Defendants identify other factors that HHS considered in deciding to import

Title IX’s religious exemption into Section 1557. In particular, they point to the agency’s

consideration of 1) the fact that Title IX has been interpreted to apply outside of core educational

institutions; 2) the Religious Freedom Restoration Act; 3) Franciscan Alliance’s invalidation of

the 2016 Rule’s definition of sex discrimination in part because of HHS’s not incorporating Title

IX’s religious exemption; and 4) the need to “protect . . . providers’ medical judgment and their

consciences.” Def. Opp. at 29–31; 85 Fed. Reg. at 37,206–08. The Court need not address the

legitimacy of these considerations today. For even if HHS could properly consider such factors,

its “wholesale failure” to adequately address a “salient factor” — namely, access to care —

renders its decision arbitrary and capricious. Humane Soc’y v. Zinke, 865 F.3d 585, 607 (D.C.

Cir. 2017). That is not to say, of course, that HHS could never promulgate a rule under Section

1557 incorporating Title IX’s religious exemption. “Rather, [the Court] holds today only that

[HHS] must adequately consider the effect of” a blanket religious exemption on the ability for

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individuals to access care on a prompt and nondiscriminatory basis. See Stewart v. Azar, 313 F.

Supp. 3d 237, 272 (D.D.C. 2018). It never did so here.

In closing this particular area of discussion, the Court notes that nothing in this decision

renders religiously affiliated providers devoid of protection. Far from it. To name a few

safeguards: the ACA instructs that no provision “shall be construed to have any effect on Federal

laws regarding (i) conscience protection; (ii) willingness or refusal to provide abortion; and (iii)

discrimination on the basis of the willingness or refusal to provide, pay for, cover, or refer for

abortion or to provide or participate in training to provide abortion.” 42 U.S.C. § 18023(c)(2).

The 2020 Rule, moreover, explicitly acknowledges that Section 1557 is subject to RFRA’s

protections of religious conscience from government-imposed burdens, see 45 C.F.R. § 92.6(b)

— protections the Supreme Court has confirmed are “very broad.” Burwell v. Hobby Lobby

Stores, Inc., 573 U.S. 682, 693 (2014). Nothing in the Court’s decision today implicates in any

fashion the applicability of these independent statutory safeguards.

3. Elimination of Prohibition on Categorical Coverage Exclusions

Plaintiffs encounter less success in their challenge to HHS’s elimination of the 2016

Rule’s prohibition on “categorical coverage exclusion[s] or limitation[s] for all health services

related to gender transition.” 81 Fed. Reg. at 31,471–72 (formerly codified at 45 C.F.R. §

92.207(b)(4)). Although they no doubt have ardent policy objections to the agency’s removal of

such prohibitions on insurers’ having or implementing categorical coverage exclusions, the sole

question before the Court is whether HHS “examine[d] the relevant data and articulate[d] a

satisfactory explanation for its action including a ‘rational connection between the facts found

and the choice made.’” State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines, 371 U.S. at

168). At least at the present juncture, Plaintiffs have not shown otherwise. Mindful of the

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“narrow” scope of arbitrary-and-capricious review — a standard that bars courts from

“substitut[ing] [their] judgment for that of the agency” — the Court finds that Plaintiffs have not

demonstrated a likelihood of success on this aspect of their case. Id.

As an initial matter, Defendants contend that HHS exceeded its authority under the 2016

Rule when it prohibited categorical coverage exclusions of gender-affirming care, including sex-

reassignment procedures. See Def. Opp. at 19. As the agency asserted in the 2020 Rule, “There

is no statutory authority to require the provision or coverage of such procedures under Title IX

protections from discrimination on the basis of sex.” 85 Fed. Reg. at 37,198; see also id. at

37,199. Plaintiffs, somewhat puzzlingly, never argue to the contrary; nor do they maintain that

Section 1557 compels the inclusion of a prohibition on coverage exclusions. Instead, Plaintiffs

simply contend that HHS “did not offer a reasonable explanation” for its policy change, which

ran “counter to the evidence” and “was not the product of reasoned decision-making.” Pl. Reply

at 13. In light of this more limited argument, the Court need not resolve the precise limits of

HHS’s authority to implement Section 1557’s prohibition on sex discrimination. Even assuming

that the 2016 Rule’s prohibition on categorical coverage exclusions of gender-affirming care was

lawful, the Court cannot presently conclude that the agency’s decision to remove that prohibition

was arbitrary and capricious.

When an agency changes a policy position, “it need not demonstrate to a court’s

satisfaction that the reasons for the new policy are better than the reasons for the old one.” Fox,

556 U.S. at 515. Instead, “it suffices that the new policy is permissible under the statute,” and

“that there are good reasons for it.” Id. Here, HHS expressly confronted its prior policy

regarding prohibitions on categorical coverage exclusions and delivered a sufficiently reasoned

explanation for its new position. In promulgating the 2020 Rule, the agency consulted scientific

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studies, government reviews, and comments from a host of medical professionals regarding

treatment for gender dysphoria. See 85 Fed. Reg. 37,187, 37,196–98. The upshot, according to

HHS, was that “the medical community is divided on many issues related to gender identity,

including the value of various ‘gender-affirming’ treatments for gender dysphoria (especially for

minors).” Id. at 37,187. That division counseled against a blanket prohibition on categorical

coverage exclusions of gender-affirming care. According to the agency, eliminating the

prohibition would enable providers and insurers “to use their best medical judgment” when

delivering and covering care, as informed by “ongoing medical debate and study” regarding

gender-affirming treatment. Id. at 37,187.

In the 2020 Rule, HHS acknowledged the 2016 Rule’s assumption that entities offering

categorical coverage exclusions for gender-affirming care were relying on medical judgments

that were “outdated and not based on current standards of care.” Id. at 37,187 (quoting 81 Fed.

Reg. at 31,429). The agency, however, concluded that this earlier assertion was “erroneous” and

that there was “a lack of scientific and medical consensus to support” it. Id. Plaintiffs take issue

with three pieces of evidence HHS cited in support of that conclusion. Without entering the

merits of the debate, the Court is satisfied that each was valid for HHS to consider, and that each

reinforced the agency’s ultimate determination.

First, HHS pointed to a 2016 CMS decision declining to issue a National Coverage

Determination that would have mandated coverage for sex-reassignment surgery for Medicare

beneficiaries with gender dysphoria. See 85 Fed. Reg. at 37,187. There, CMS determined,

“[b]ased on an extensive assessment of the clinical evidence,” that “there is not enough high

quality evidence to determine whether gender reassignment surgery improves health outcomes

for Medicare beneficiaries with gender dysphoria and whether patients most likely to benefit

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from these types of surgical intervention can be identified prospectively.” CMS, Decision Memo

for Gender Dysphoria and Gender Reassignment Surgery (CAG-00446N) (Aug. 30, 2016),

https://perma.cc/9S73-4WQB. Plaintiffs emphasize that CMS’s decision did not mean there

would be national non-coverage for gender-affirming care, but only that coverage determinations

would occur on a case-by-case basis. See Pl. Mot. at 17. That point, however, is non-

responsive, as HHS invokes the CMS decision only as evidence for the “lack of scientific and

medical consensus” regarding such treatment. See 85 Fed. Reg. at 37,187.

Second, HHS referenced a 2018 Department of Defense report, which found that there is

“considerable scientific uncertainty and overall lack of high quality scientific evidence

demonstrating the extent to which transition-related treatments . . . remedy the multifaceted

mental health problems associated with gender dysphoria.” Id. (quoting Department of Defense,

Report and Recommendations on Military Service by Transgender Persons at 5 (Feb. 22, 2018),

https://perma.cc/7369-K2VC). Plaintiffs attempt to blunt the force of this report by pointing out

that it summarized recommendations “based on each Panel member’s independent military

judgment.” DOD Report at 4 (emphasis added). As HHS noted, however, the report also

included input from civilian medical professionals with experience treating gender dysphoria.

See 85 Fed. Reg. at 37,187; DOD Report at 18. In any event, even assuming that the military

context in which the report was issued counsels against unguarded acceptance of all of its

conclusions in the context of civilian health care, the report’s factual finding regarding the

“scientific uncertainty and overall lack of high quality scientific evidence” surrounding gender-

affirming treatment ultimately echoes CMS’s similar finding two years earlier — which

Plaintiffs do not and cannot dispute was tailored to civilians.

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Finally, HHS characterized a scientific study as concluding “that children who socially

transition in childhood faced dramatically increased likelihood of persistence of gender

dysphoria into adolescence and adulthood.” 85 Fed. Reg. at 37,187 (citing Thomas D. Steensma

et al., “Factors Associated with Desistance and Persistence of Childhood Gender Dysphoria: A

Quantitative Follow-Up Study,” 52(6) J. Am. Acad. of Child & Adolescent Psych. 582–90

(2013)). Plaintiffs dispute that representation, emphasizing that the study concluded only that

the intensity of early gender dysphoria appears to be an important predictor of the persistence of

gender dysphoria in later years of life. See Pl. Mot. at 18 (citing Steensma et al. at 582).

Defendants, however, correctly point out that the study found that boys who transitioned during

childhood experienced “significantly” greater gender dysphoria in later years, a finding

consistent with HHS’s characterization. See Steensma at 586–87; see also id. at 588 (explaining

that “[c]hildhood social transitions were important predictors of persistence” and that “[s]ocial

transitions were associated with more intense [gender dysphoria] in childhood”).

Beyond criticizing HHS’s reliance on these sources, Plaintiffs point to standards issued

by the World Professional Association for Transgender Health — and adopted by additional

organizations — that endorse various forms of treatment for gender dysphoria. See Pl. Mot. at

16–17. But HHS explicitly considered these standards in promulgating the 2020 Rule,

referencing submissions from various commenters who agreed with the group’s approach. See

85 Fed. Reg. at 37,196 & nn.220–25. After summarizing such evidence, the agency turned to

comments from clinicians who criticized the WPATH standards for reaching “policy conclusions

without adequate clinical evidence.” Id. at 37,197 & n.232 (citing studies). HHS also indicated

its agreement with certain commenters “that the 2016 Rule relied excessively on the conclusions

of an advocacy group (WPATH) rather than on independent scientific fact-finding” such as the

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aforementioned CMS decision that conducted an “extensive assessment of the clinical evidence”

only to find an absence of evidence sufficient “to determine whether gender reassignment

surgery improves health outcomes” for individuals with gender dysphoria. Id. at 37,187, 37,198.

Once again, it is not this Court’s place to resolve this scientific debate. Nor may it pass

judgment on the wisdom of the agency’s decision. The Court is limited, rather, to considering

whether “the agency has examined relevant data and has articulated a rational explanation for its

action.” Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 921 (D.C. Cir. 1985). The above

discussion makes clear that HHS thoroughly considered the evidence Plaintiffs raise, but

nevertheless concluded that “there is no medical consensus to support one or another form of

treatment for gender dysphoria.” 85 Fed. Reg. at 37,198. Plaintiffs cannot show that

determination to be arbitrary and capricious simply by pointing to evidence that the agency

plainly took into account. See Pl. Mot. at 16–17.

Plaintiffs also briefly contend that HHS failed to consider the “reliance” interests of

various stakeholders, including transgender patients, on the 2016 Rule’s prohibition on

categorical coverage exclusions. Id. at 18. Even assuming Plaintiffs have identified “serious

reliance interests” with the requisite particularity, Encino Motorcars, 136 S. Ct. at 2126 (quoting

Fox, 556 U.S. at 515), nowhere do they acknowledge HHS’s express statement that nothing in

the 2020 Rule “prohibits a healthcare provider from offering or performing sex-reassignment

treatments and surgeries, or an insurer from covering such treatments and procedures, either as a

general matter or on a case-by-case basis.” 85 Fed. Reg. at 37,188. Indeed, HHS went on, “The

large number of comments received from healthcare providers who perform such treatments and

procedures suggests that there is no shortage of providers willing to do so.” Id.; see also id. at

37,196 (acknowledging comments claiming that 2020 Rule’s insurance coverage provisions

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jeopardize access to gender transition services). If Plaintiffs deem that discussion insufficient to

discharge HHS’s duty to consider “legitimate reliance on prior interpretation,” they will need to

address it head on. Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996).

Plaintiffs, consequently, have not demonstrated a likelihood of success on the merits of

their challenge to HHS’s repeal of the 2016 Rule’s prohibition on categorical coverage

exclusions for gender-transition-related health services.

4. Elimination of Notice Requirements

Plaintiffs next take aim at HHS’s elimination of the 2016 Rule’s notice and tagline

requirements. Here, too, the Court finds that they have not demonstrated a likelihood of success

on their claim that such repeal was procedurally invalid.

As previously discussed, although their briefing at times references unspecified revisions

to the 2016 Rule’s language-access requirements, Plaintiffs confine their present challenge to

HHS’s repeal of the prior Rule’s notice and tagline provisions. See Hrg. Tr. at 22–23; Pl. Mot. at

24. Those provisions required covered entities to post certain notices and taglines in their

“significant publications and significant communications” with members of the public, as well as

in “conspicuous physical locations.” 81 Fed. Reg. at 31,469 (formerly codified at 45 C.F.R.

§ 92.8(f)–(g)). The notices were intended to inform the public that, inter alia, the covered entity

does not discriminate on the grounds incorporated into Section 1557, and that it provides various

language-assistance services and auxiliary aids. See id. (formerly codified at 45 C.F.R.

§ 92.8(a)). Covered entities also had to include short “taglines” in certain significant

communications and locations, in either fifteen languages (for larger-sized communications and

physical locations) or in two languages (for smaller communications), indicating the availability

of these language-assistance services. Id. (formerly codified at 45 C.F.R. §§ 92.4, 92.8).

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The 2020 Rule eliminated these notice and tagline requirements entirely. In reviewing

that action, the Court is once more tasked with determining whether the repeal was arbitrary and

capricious — in other words, whether HHS neglected to provide a sufficiently “reasoned

analysis” for its change in policy. State Farm, 463 U.S. at 42. Finding that the agency’s

explanation was more than adequate, the Court declines Plaintiffs’ invitation to set aside the

repeal.

By this point in the journey, the reader knows all too well that in order to justify a change

in policy, an agency must “display awareness that it is changing position” and “must show that

there are good reasons for the new policy.” Fox, 556 U.S. at 515. Here, HHS did both. It

plainly acknowledged its shift in course from the 2016 Rule, stating explicitly that it sought to

“repeal in toto the Section 1557 provisions on taglines . . . and notices of non-discrimination.”

84 Fed. Reg. at 27,868; see also 85 Fed. Reg. at 37,204. The agency likewise provided an array

of reasons for its change in position. For instance, HHS determined that the costs and burdens

imposed by the notice and tagline requirements were “substantially larger than originally

anticipated.” 84 Fed. Reg. at 27,857. The 2016 Rule had estimated that the total cost of

complying with these provisions would be $7.2 million, with expenditures declining to zero after

the first year of implementation notwithstanding covered entities’ continuing obligation to

provide the notices on all “significant publications and significant communications.” 81 Fed.

Reg. at 31,453, 31,458 (Table 5); 84 Fed. Reg. at 27,875. HHS ultimately concluded that these

projections were a “gross underestimation” of costs, and that eliminating the requirements would

save approximately $2.9 billion over a five-year period. See 85 Fed. Reg. at 37,163, 37,224.

In addition, the agency cited reports from covered entities of implementation difficulties,

largely resulting from the many different and overlapping notice and language-access

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requirements imposed by federal and state governments. See id. at 37,211 & n.281 (citing

statutes). Even when implemented correctly, stakeholders feared that the “repetitive nature” of

the notices “dilute[d] the messages contained in significant communications to the point that

some recipients may be disregarding the information entirely.” Id. at 37,211. HHS also noted

that high costs often yielded minimal benefit, both because the “vast majority of recipients of

taglines do not require translation services” and because providers were often required to print

taglines in languages that very few individuals spoke. Id. at 37,233. In Wyoming, for instance,

health-insurance issuers needed to provide translation notices in Gujarati and Navajo in every

significant communication sent to beneficiaries to account for a combined 79 speakers of those

languages. Id. HHS could validly consider these concerns in determining that a new approach

was warranted. The agency, after all, need not establish that its stated justifications are “better

than the reasons for the old” policy; it suffices that the agency “believes [the new policy] to be

better.” Fox, 556 U.S. at 515.

Plaintiffs do not address any of these justifications for HHS’s change in position, much

less contest their legitimacy. Instead, they contend that the agency neglected to explain or

sufficiently consider how individuals will become apprised of their health-care rights under

Section 1557, along with the availability of various language-assistance services, without the

notices or taglines. See Pl. Mot. at 19, 24–25. As will presently become clear, however, HHS

grappled with the precise considerations that Plaintiffs insist it ignored. Indeed, it found that

limited evidence of notice and taglines’ leading to increased access was a principal reason that

their significant costs and burdens outweighed their far more limited benefits.

An agency discharges its obligation to “consider an important aspect of the problem”

when it “g[ives] the specific reasons for which it disagree[s]” with the basis for the alleged

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problem. Am. Petroleum Inst. v. EPA, 684 F.3d 1342, 1350 (D.C. Cir. 2012) (citation omitted).

Here, in the 2020 Rule, HHS squarely considered the possibility that “[r]epealing the notice and

taglines requirement may impose costs, such as decreasing access to, and utilization of,

healthcare for

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