Trans healthcare anti-discrimination rule blocked nationwide as other LGBTQ rule challenges proceed

Some aspects of the rule enforcing Section 1557 of the Affordable Care Act go into effect on Friday. Also: Another Title IX rule injunction.

A senior federal district court judge in Mississippi issued a nationwide injunction on Wednesday blocking the Biden administration’s rule banning sex discrimination in several federal healthcare programs from including protections against discrimination on the basis of gender identity.

The opinion from U.S. District Judge Louis Guirola Jr. came one business day before some aspects of the final rule interpreting the Section 1557 nondiscrimination provision of the Affordable Care Act are set to go into effect on Friday. The Department of Health and Human Services’s final rule was published in May.

In summary, the rule states that Section 1557’s definition of sex, which relies upon the definition of sex in Title IX of the Education Amendments Act of 1972, would be interpreted as the U.S. Supreme Court did under Title VII of the Civil Rights Act of 1964 in Bostock v. Clayton County. As such, sex discrimination would include sexual orientation discrimination and gender identity discrimination. (This is, then, essentially a follow-on debate to the Title IX rule challenges — which I have described at length here. More on those cases below. Here, though, is a great KFF briefing on the Section 1557 rule itself.)

Guirola, a 73-year-old George W. Bush appointee, found that the HHS rule violated the Administrative Procedure Act (APA) because “the Court has found no basis for applying Bostock’s Title VII analysis to Section 1557’s incorporation of Title IX” and that, as such, “HHS exceeded its statutory authority” by doing so.

The lawsuit, filed in Mississippi, with Tennessee as the lead plaintiff, was brought on behalf of Alabama, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Virginia, and West Virginia.

The rule is stayed nationwide “in so far as this final rule is intended to extend discrimination on the basis of sex to include discrimination on the basis of gender identity,“ and the federal government is enjoined from enforcing the rule on those grounds.

A 15-state lawsuit, in other words, led to a national injunction. Notably, the court only blocked the rule as to “gender identity.” By my read, then, the rule will still go into effect on Friday, and it will apply the HHS definition of sex to include discrimination on the basis of sexual orientation.

There are two caveats to that, though.

A federal judge in Florida also issued a Wednesday ruling blocking enforcement of HHS’s “interpretation of discrimination ‘on the basis of sex’” in the rule — but only as to Florida. This injunction also appears, in contrast, to block the application of the Section 1557 rule as to both sexual orientation and gender identity discrimination.

In his 50-page opinion, U.S. District Judge William Jung, a Trump appointee, noted in limiting his order to Florida, “A nationwide injunction issuing from a District Court ought to be the rare exception, not routine.”

Guirola, apparently, did not get the memo. He justified the nationwide injunction as to the gender identity protections by ignoring recent Supreme Court statements questioning the propriety of lower courts granting nationwide relief and relying on one strand of rulings from the U.S. Court of Appeals for the Fifth Circuit while downplaying the importance of a more recent case in which the Fifth Circuit denied nationwide relief in an APA challenge.

In a third challenge to the rule, brought in Texas on behalf of Texas and Montana, U.S. District Judge Jeremy Kernodle, a Trump appointee in the Eastern District of Texas, blocked enforcement of the entirety of the rule — writing that the problems he found with the rule “permeate” it and concluding with a quote from an earlier challenge to another administration rule, “[I]t is not the judiciary’s duty or role to write or rewrite regulations or rules, especially those that substantively contravene existing legislation.”

His order, however, also noted the importance of “geographic limits” — including a citation to the case downplayed by Guirola — and is limited to Montana and Texas.¹

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The latest Title IX rule ruling

Also this week, another federal judge sided with conservative challengers to the Biden administration’s Title IX education rule — in a potentially expansive order that purports to have some nationwide effect.

U.S. District Judge John Broomes, a Trump appointee in Kansas, is the third federal judge to issue a preliminary injunction blocking enforcement of the final rule, which is set to go into effect on August 1 and, among other provisions, interprets sex under Title IX’s nondiscrimination protections to include sexual orientation and gender identity and changes obligations for addressing sexual harassment complaints.

The injunction Broomes issued on July 2, however, is broader in scope than the others and could lead to substantial confusion in the coming months.

In addition to blocking the rule as to enforcement in the states challenging the law — Alaska, Kansas, Utah, and Wyoming — he also purported to block the enforcement of the rule in any school nationwide attended by any “members of Young America’s Foundation or Female Athletes United, as well as the schools attended by the children of the members of Moms for Liberty,” three organizations that were a part of the lawsuit.

In addition to the nationwide scope — potentially setting up conflicts with other courts’ rulings, not to mention creating indirect conflicts with other states’ policies implementing and/or enforcing the new rule in their states — another problem with the injunction as it stands is that Broomes, and the schools subject to it, don’t even know at this point whether they are subject to it.

Despite issuing an injunction of nationwide scope on July 2, Broomes has no list of what schools are covered by it. Instead, the injunction states, “Plaintiff Organizations are directed to file a notice in the record identifying the schools which their members or their members’ children, as applicable, attend on or before July 15, 2024.”

In other words, there are schools that are, technically, the subject of this injunction currently yet have no notice of such. Yes, it’s an injunction against the federal government and regarding a rule that doesn’t go into effect until August 1. Nonetheless, it goes to show how slipshod this order is that there could be countless schools whose legal obligations were altered by the order and yet the judge doesn’t even know what schools they are. Further, those schools were provided no notice that the litigation was even happening, let alone that their obligations could be affected by it. The same goes for the states responsible for overseeing those schools.

Putting those important questions to the side for the moment, however, with his injunction the final rule is currently and preemptively blocked in 14 states: Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Utah, Virginia, West Virginia, and Wyoming.

The two other injunctions against enforcement of the final rule have already been appealed, with stay requests being briefed currently.

The Justice Department asked the U.S. Court of Appeals for the Sixth Circuit to stay the injunction in the Tennessee-led Title IX case (not to be confused with the Section 1557 case discussed above), and the states have already filed their opposition. DOJ’s reply is due by Tuesday, July 9.

DOJ is also seeking a stay of the injunction in the Louisiana-led case at the Fifth Circuit, which ordered a response to that request to be filed by the challengers by 4 p.m. CT Wednesday, July 10.

1. These final two paragraphs were added after initial publication at 6:20 p.m.