Biden’s HHS Asks Court to Overrule Order Blocking Transgender Care 

Leon Weiler, of Cambridge, Mass., top, holds a flag while standing with other protesters in support of transgender rights beside the "Free Speech Bus," painted with the words "boys are boys" and "girls are girls," in the Harvard Square neighborhood of Cambridge, Thursday, March 30, 2017. A spokesman for the …
Steven Senne/AP Photo

President Joe Biden’s Department of Health and Human Services (HHS) asked the U.S. Court of Appeals for the Fifth Circuit to overrule a lower court order that prohibits mandated transgender care for health insurance providers.

Judge Reed O’Connor for the U.S. District Court for the Northern District of Texas issued an injunction in 2021 that prevented HHS from interpreting the Affordable Care Act’s anti-discrimination to require a health care provider involved in the legal dispute to provide health insurance for gender-transitioning procedures or abortion care.

As Judge O’Connor explained:

Here, the RFRA violation, the success on the merits, is all but conceded. No party disputes that the current Section 1557 regulatory scheme threatens to burden Christian Plaintiffs’ religious exercise in the same way as the 2016 scheme: namely, by placing substantial pressure on Christian Plaintiffs, in the form of fines and civil liability, to perform and provide insurance coverage for gender-transition procedures and abortions…

The ACLU and the government narrowly read Plaintiffs’ live pleading as challenging just the 2016 Rule and not Section 1557 itself; thus, limiting the possible scope of injunctive relief to the 2016 Rule. See Ints.’ Supp. Resp. 12, ECF No. 201. But Rule 54(c) provides no such limit.

HHS argued O’Connor’s order is moot because the agency rescinded and replaced a 2016 rule the lawsuit stems from. That 2016 HHS rule, which O’Connor largely vacated, said the Affordable Care Act’s prohibition on sex-based discrimination included gender identity, transgender status, or termination of a pregnancy.

As Bloomberg Law reported:

But O’Connor nevertheless issued a 2021 order that blocks HHS from taking future action against the providers based on rules or interpretations having the same effect as the 2016 rule, HHS said. That order was improper, the agency said.

Providers can’t “reanimate” the case by claiming that their fight against the 2016 rule implicitly included a challenge against future enforcement of Section 1557 itself, HHS said. The providers never asserted that the law, as applied in the transgender care context, would violate the Religious Freedom Restoration Act, it said.

The American Civil Liberties Union joined the case and urged the Fifth Circuit to overturn O’Connor’s injunction against the HHS rule.

The case is Franciscan Alliance v. Becerra, No. 21-11174 in the U.S. Court of Appeals for the Fifth Circuit.

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