Feds Must Answer ACLU Motion in Transgender Bias Case

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By Matthew Loughran

The HHS must reply to an effort by the ACLU to intervene in defense of a federal rule prohibiting health-care discrimination against transgender individuals ( Franciscan Alliance Inc. v. Burwell , N.D. Tex., No. 7:16-cv-108, 1/24/17 ).

Judge Reed C. O’Connor of the U.S. District Court for the Northern District of Texas ruled Jan. 24 that he needed input from the U.S. Department of Health and Human Services in order to determine whether the American Civil Liberties Union should be allowed to step into the federal government’s shoes and defend the rule. The court ordered the HHS to reply by Feb. 8.

The court’s order comes as the ACLU has imposed a Jan. 30 deadline for a ruling to allow it to get involved in the case, which has resulted in a nationwide ban on enforcement of a portion of the rule. The group earlier threatened to go to the U.S. Court of Appeals for the Fifth Circuit and seek an order forcing O’Connor to rule on the motion if he doesn’t meet that deadline.

Brian Hauss, an ACLU staff attorney in New York, told Bloomberg BNA that his group is still evaluating whether it will pursue that action.

The court’s order also declined an ACLU request to lift the nationwide ban on the rule while it considers the issue.

HHS and the U.S. Department of Justice declined to comment, citing the pending litigation.

ACLU Efforts

The ACLU asked to intervene in the case in September in an effort to defend its members from discrimination. But the court granted an injunction in the case Dec. 31, blocking enforcement of a section of the rule, without ruling on the ACLU’s motion for intervention.

The nationwide injunction blocked a part of the rule that would include gender identity and termination of pregnancy in the sex discrimination prohibitions of Section 1557 of the Affordable Care Act.

After the court entered its injunction, the ACLU filed a motion for the court to rule on its intervention request by Jan. 20 and warning that it could move to the Fifth Circuit for an order directing the court to act if necessary ( 08 HCDR, 1/12/17 ). The group later pushed that deadline to Jan. 30 to accommodate O’Connor’s trial schedule.

Permissive Intervention

The court determined in its Jan. 24 order that the ACLU didn’t have an absolute right to intervene in the case because it hadn’t clearly articulated why the HHS would be unable to defend the group’s members’ interests. The case was originally brought as a challenge to the HHS regulation by a group of religiously affiliated health-care providers and state attorneys general.

However, the court did say the ACLU could be allowed to intervene in the case as long as that didn’t create any undue delay or prejudice to the original parties. Such an action by the court would be known as permissive intervention. While the representatives for the groups challenging the rule have expressed their disagreement with the ACLU’s efforts, the HHS said it wouldn’t take a position.

The court said it needed the HHS to take a position on permissive intervention in order to rule on the motion and ordered the HHS to respond by Feb. 8. The court further deferred any action on the motion until the ACLU had a chance to respond to HHS filings by Feb. 15.

The Becket Fund for Religious Liberty, which represents the challengers to the rule, agreed with the court’s overall opinion. “The court got it right in saying that the ACLU doesn’t have the right to intervene because the government is already defending the regulation,” Luke Goodrich, deputy general counsel of the Becket Fund told Bloomberg BNA.

“The court’s decision puts the ACLU in the normal place that all nonparties are in a litigation, on the sidelines,” he added.

Injunction Effect Disputed

Goodrich also defended the court’s decision to keep the injunction in place. “It is a good common-sense ruling because the regulations would force doctors to perform gender reassignment procedures on any patients, even children, and even when the doctors would consider the procedures harmful or against their best medical judgment,” he said.

He added that the court’s injunction “makes sure that this decision stays between the doctor and the patient without government bureaucrats getting involved.”

The ACLU’s Hauss however, said the court’s opinion could have a devastating effect on his group’s members. “We are obviously disappointed with the court’s decision,” he said. “We sought to get involved in order to protect all transgender individuals and women seeking reproductive care from discrimination with respect to their health-care needs, and we will continue to fight for that,” he added.

“We continue to believe that no one should be turned away from a hospital or denied access to needed health care because of who they are,” he said.

The religiously affiliated health-care organizations are represented by the Becket Fund for Religious Liberty in Washington. The HHS is represented by the DOJ. The ACLU is represented by its in-house attorneys in Houston and New York.

To contact the reporter on this story: Matthew Loughran in Washington at mloughran@bna.com

To contact the editor responsible for this story: Peyton M. Sturges at PSturges@bna.com

For More Information

The court's opinion is at http://src.bna.com/lGN.

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