New York Law School

Art Leonard Observations

Posts Tagged ‘Gloucester County School District v. G.G.’

Supreme Court Will Not Decide Transgender Title IX Case This Term

Posted on: March 7th, 2017 by Art Leonard No Comments

The Supreme Court will not decide this term whether Title IX of the Education Amendments of 1972 and an Education Department regulation, 34 C.F.R. Section 106.33, require schools that receive federal money to allow transgender students to use restrooms consistent with their gender identity. Gloucester County School Board v. G.G., No. 16-273 (Summary Disposition, March 6, 2017).  Title IX states that schools may not discriminate because of sex if they get federal money, and the regulation allows schools to provide separate restroom and locker room facilities for boys and girls so long as they are “equal.”

Responding to a February 22 letter from the Trump Administration, advising the Court that the Education and Justice Departments had “withdrawn” two federal agency letters issued during the Obama Administration interpreting the statute and regulation to require allowing transgender students to use facilities consistent with their gender identity, the Court announced on March 6 that it was “vacating” the decision by the 4th Circuit Court of Appeals in the case of transgender high school student Gavin Grimm, which it had previously agreed to review, and sending the case back to the 4th Circuit for “further consideration in light of the guidance document issued by the Department of Education and Department of Justice.”  The case had been scheduled for argument on March 28.

This result was not unexpected, although both parties in the case, Grimm and the Gloucester County, Virginia, School District, had asked the Court to keep the case on the docket and decide whether Title IX and the bathroom regulation required the district to let Grimm use boys’ restrooms at the high school. Represented by the ACLU LGBT Rights Project, Grimm urged the Court to hold the previously scheduled hearing.  The school district urged the Court to delay the hearing, in order to give the Trump Administration an opportunity to weigh in formally, but then to hear and decide the case.  Had the Court granted the school district’s request, the case might have been argued before the end of the Court’s current term or delayed to next fall.

The case dates back to 2015, when Grimm and his mother had met with school administrators during the summer prior to his sophomore year to tell them about his gender transition and they had agreed to let him use the boys’ restrooms, which he did for several weeks with no problems. Complaints by parents led the school board to adopt a resolution requiring students to use restrooms consistent with the sex indicated on their birth certificates – so-called “biological sex” – regardless of their gender identity.  The school also provided an alternative, unacceptable to Grimm, of using a single-user restroom that he found inconvenient and stigmatizing.

Grimm sued the school district, alleging a violation of his rights under Title IX and the 14th Amendment. The Education Department sent a letter at the request of the ACLU informing the district court that the Department interpreted Title IX and the bathroom regulation as “generally” requiring schools to let transgender students use facilities consistent with their gender identity.  Following the lead of several federal courts and the Equal Employment Opportunity Commission interpreting other federal statutes that forbid sex discrimination, the Obama Administration took the position that laws against sex discrimination protect people from discrimination because of their gender identity.

The district judge, Robert Doumar, rejected the Obama Administration’s interpretation and granted the school district’s motion to dismiss the Title IX claim on September 17, 2015 (132 F. Supp. 3d 736), while reserving judgment on Grimm’s alternative claim that the policy violated his right to equal protection of the law guaranteed by the 14th Amendment.  Doumar opined that when adopting Title IX in 1972, Congress had not intended to forbid gender identity discrimination, notwithstanding the Obama Administration’s more recent interpretation of the statute.

The ACLU appealed Doumar’s ruling to the Richmond-based 4th Circuit, where a three-judge panel voted 2-1 on April 19, 2016 (822 F.3d 709), to reverse Judge Doumar’s decision.  The panel, applying a Supreme Court precedent called the Auer Doctrine, held that the district court should have deferred to the Obama Administration’s interpretation of the bathroom regulation because the regulation was ambiguous as to how transgender students should be accommodated and the court considered the Obama Administration’s interpretation to be “reasonable.”  A dissenting judge agreed with Judge Doumar that Title IX did not forbid the school district’s policy. The panel voted 2-1 to deny the school district’s motion for rehearing by the full 4th Circuit bench on May 31 (824 F.3d 450).

Shortly after the 4th Circuit issued its decision, the Education and Justice Departments sent a “Dear Colleague” letter to school administrators nationwide, advising them that the government would interpret Title IX to protect transgender students and providing detailed guidance on compliance with that requirement.  The letter informed recipients that failure to comply might subject them to Education Department investigations and possible loss of eligibility for federal funding.  This letter stirred up a storm of protest led by state officials in Texas, who filed a lawsuit joined by ten other states challenging the Obama Administration’s interpretation as inappropriate.  Subsequently another lawsuit was filed in Nebraska by state officials joined by several other states making the same argument.

Judge Doumar reacted quickly to the 4th Circuit’s reversal of his ruling, issuing a preliminary injunction on June 23 requiring the school district to allow Grimm to use boys’ restrooms while the case proceeded on the merits (2016 WL 3581852).  The 4th Circuit panel voted on July 12 to deny the school district’s motion to stay the preliminary injunction, but on August 3 the Supreme Court granted an emergency motion by the school district to stay the injunction while the district petitioned the Supreme Court to review the 4th Circuit’s decision (136 S. Ct. 2442).

It takes five votes on the Supreme Court to grant a stay of a lower court ruling pending appeal. Usually the Court issues no written opinion explaining why it is granting a stay.  In this case, however, Justice Stephen Breyer issued a one-paragraph statement explaining that he had voted for the stay as a “courtesy,” citing an earlier case in which the conservative justices (then numbering five) had refused to extend such a “courtesy” and grant a stay of execution to a death row inmate in a case presenting a serious 8th Amendment challenge to his death sentence.  Justices Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan indicated that they would have denied the motion, so all four of the conservative justices had voted for the stay.  Since it takes five votes to grant a stay but only four votes to grant a petition for certiorari (a request to the Court to review a lower court decision), it was clear to all the justices that the school district’s subsequent petition for review would be granted, and it was, in part, on October 28 (137 S. Ct. 369).

Meanwhile, however, U.S. District Judge Reed O’Connor in Wichita Falls, Texas, had granted a “nationwide” preliminary injunction later in August in the Texas case challenging the Obama Administration guidance, blocking federal agencies from undertaking any new investigations or initiating any new cases involving gender identity discrimination claims under Title IX. Texas v. United States, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016).  The Obama Administration filed an appeal with the Houston-based 5th Circuit Court of Appeals, asking that court to cut down the scope of O’Connor’s injunction to cover just the states that had joined that lawsuit, pending litigation on the merits in that case.

The Gloucester school district’s petition for certiorari asked the Supreme Court to consider three questions: whether its doctrine of deferral to agency interpretations of regulations should be abandoned; whether, assuming the doctrine was retained, it should be applied in the case of an “unpublished” letter submitted by the agency in response to a particular lawsuit, and finally whether the Obama Administration’s interpretation of Title IX and the regulation were correct.  The Court agreed only to address the second and third questions.

Donald Trump was elected a week later. During the election campaign, he stated that he would be revoking Obama Administration executive orders and administrative actions, so the election quickly led to speculation that the Gloucester County case would be affected by the new administration’s actions, since the Guidance had been subjected to strong criticism by Republicans.  This seemed certain after Trump announced that he would nominate Senator Jeff Sessions of Alabama to be Attorney General, as Sessions has a long history of opposition to LGBT rights.  The announcement that Trump would nominate Betsy DeVos to be Secretary of Education fueled the speculation further, since her family was notorious for giving substantial financial support to anti-LGBT organizations.  It seemed unlikely that the Obama Administration’s Title IX Guidance would survive very long in a Trump Administration.

The other shoe dropped on February 22, just days before the deadline for submission of amicus curiae (“friend of the court”) briefs on behalf of Gavin Grimm.   The Solicitor General’s office had not filed a brief in support of the school district at the earlier deadline, and there had been hope that the government would file a brief on behalf of Grimm or just stay out of the case.  According to numerous press reports, Secretary DeVos, who reportedly does not share her family’s anti-gay sentiments, had not wanted to withdraw the Guidance, but Attorney General Sessions insisted that the Obama Administration letters should be withdrawn, and Trump sided with Sessions in a White House showdown over the issue.

The February 22 “Dear Colleagues” letter was curiously contradictory, however. While announcing that the prior letters were “withdrawn” and their interpretation would not be followed by the government, the letter did not take a position directly on whether Title IX applied to gender identity discrimination claims.  Instead, it said that further study was needed on the Title IX issue, while asserting that the question of bathroom access should be left to states and local school boards and that schools were still obligated by Title IX not to discriminate against any students, regardless of their sexual orientation or gender identity.  The letter was seemingly an attempt to compromise between DeVos’s position against bullying and discrimination and Sessions’ opposition to a broad reading of Title IX to encompass gender identity discrimination claims.  White House Press Secretary Sean Spicer said that the question of Title IX’s interpretation was still being considered by the administration.

In any event, the Obama Administration interpretation to which the 4th Circuit panel had deferred was clearly no longer operative, effectively rendering moot the first question on which the Supreme Court had granted review.  Although the parties urged the Court to continue with the case and address the second question, it was not surprising that the Court decided not to do so.

The usual role of the Supreme Court is to decide whether to affirm or reverse a ruling on the merits of a case by the lower court. In this case, however, the 4th Circuit had not issued a ruling on the merits as such, since the basis for its ruling was deference to an administrative interpretation.  The 4th Circuit held that the Obama Administration’s interpretation was “reasonable,” but not that it was the only correct interpretation of the regulation or the statute.  The only ruling on the merits in the case so far is Judge Doumar’s original 2015 ruling that Grimm’s complaint failed to state a valid claim under Title IX.  Thus, it was not particularly surprising that the Supreme Court would reject the parties’ request to hear and decide the issue of interpretation of Title IX, and instead to send it back to the 4th Circuit to reconsider in light of the February 22 letter.  The Court usually grants review because there are conflicting rulings in the courts of appeals that need to be resolved. Here there are no such conflicting rulings under Title IX and the bathroom regulation, since the only other decisions on this question are by federal trial courts.

After issuing its February 22 letter, the Justice Department abandoned its appeal of the scope of Judge O’Connor’s preliminary injunction in the Texas case and asked the 5th Circuit to cancel a scheduled argument, which it did.  Furthermore, withdrawal of the Obama Administration Guidance rendered the Texas v. U.S. case moot, since the relief sought by the plaintiffs was a declaration that the Guidance was invalid, so Judge O’Connor will dissolve his injunction and the case will be withdrawn, as will be the Nebraska case.

In the meantime, there are several other relevant cases pending. The Cincinnati-based 6th Circuit and the Philadelphia-based 3rd Circuit will be considering appeals from district court rulings on transgender student rights from Ohio and Pennsylvania, there are cases pending before trial courts elsewhere, and there are multiple lawsuits pending challenging North Carolina’s H.B. 2, which among other things mandates that transgender people in that state use public restrooms consistent with their birth certificates.  One case challenging H.B. 2 was filed by the Obama Justice Department and may be abandoned by the Trump Administration.  But the 4th Circuit is shortly to hear arguments on an appeal filed by three transgender plaintiffs who are students or staff members at the University of North Carolina, who won a preliminary injunction when the trial judge in their case, filed by the ACLU and Lambda Legal, deferred to the Obama Administration Guidance as required by the 4th Circuit’s ruling in Grimm’s case, but declined to rule on the plaintiffs’ claim that H.B. 2 also violated their constitutional rights.  Carcano v. McCrory, 2016 WL 4508192 (M.D.N.C. Aug. 26, 2016). The appeal is focused on their constitutional claim and their argument that the preliminary injunction, which was narrowly focused on the three of them, should have been broadly applied to all transgender people affected by H.B. 2.  The case pending in the 3rd Circuit also focuses on the constitutional claim, as a trial judge in Pittsburgh ruled that a western Pennsylvania school district violated the 14th Amendment by adopting a resolution forbidding three transgender high school students from using restrooms consistent with their gender identity. Evancho v. Pine-Richland School District, 2017 U.S. Dist. LEXIS 26767, 2017 WL 770619 (W.D. Pa. Feb. 27, 2017).

Meanwhile, Gavin Grimm is scheduled to graduate at the end of this spring semester, which may moot his case since he was seeking injunctive relief to allow him to use the boys’ restrooms, unless the court is convinced that a live controversy still exists because the school district’s policy continues in effect and will still prevent Grimm from using the boys’ restrooms if he come to the school to attend alumni events.

It seems likely that whatever happens next in the Gavin Grimm case, the issue of transgender people and their access to gender-identity-consistent public facilities will continue to be litigated in many federal courts in the months ahead, and may be back to the Supreme Court soon, perhaps as early as its 2017-18 Term. By then, the Court is likely to be back to a five-member conservative majority, assuming the Senate either confirms Trump’s nomination of Judge Neil Gorsuch or, if that stalls, another conservative nominee.  It is even possible that Trump may have a second vacancy to fill before this issue gets back to the Court, in which case the plaintiffs may face very long odds against success.

 

 

Federal Judge Issues National Preliminary Injunction against ACA Regulation Banning Gender Identity Discrimination

Posted on: January 1st, 2017 by Art Leonard No Comments

In an eleventh-hour action, U.S. District Judge Reed O’Connor (N.D. Texas, Wichita Div.) issued a nationwide preliminary injunction on December 31, barring the federal government from enforcing part of a new regulation that was scheduled to go into effect on January 1, 2017, which interpreted the prohibition on discrimination because of sex under the Affordable Care Act to extend to discrimination because of “gender identity” and “termination of pregnancy.” Franciscan Alliance v. Burwell, Civ. Action No. 7:16-cv-00108-O.  Judge O’Connor’s action echoed his earlier issuance, on August 21, 2016, of a nationwide preliminary injunction against the enforcement by the federal government of Title IX of the Education Amendments of 1972 to protect transgender schoolchildren from discrimination, in State of Texas v. United States of America, 2016 WL 4426495 (N.D. Texas, August 21, 2016).  In both opinions, O’Connor rejected the Obama Administration’s position that discrimination because of gender identity or expression is a form of “sex discrimination” that is illegal under federal laws, a question that the U.S. Supreme Court may address if it gets to the merits in G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir.), cert. granted, 136 S. Ct. 2442 (No. 16A52)(2016).  Judge O’Connor’s analytical task was “simplified” because the ACA anti-discrimination provision, Section 1557, incorporates by reference the sex discrimination ban in Title IX that was the subject of the judge’s prior preliminary injunction ruling.

The ACA authorizes the Department of Health and Human Services (HHS) to adopt regulations through the procedures of the Administrative Procedure Act (APA) to give detailed substance to the broad terms of the statute. The ACA provides in Section 1557 that health programs or activities receiving federal financial assistance not discriminate on grounds prohibited by four federal statutes.  Title IX, which bans sex discrimination in educational programs receiving federal money, was one of the listed statutes and thus incorporated by reference into the ACA.  (Others deal with discrimination because of race, national origin or disability.)  The Title IX regulations adopted by the Education Department in the 1970s include an express religious exemption provision, so that religiously-controlled educational institutions are exempt from Title IX compliance to the extent that compliance would violate their religious tenets.  After the ACA was enacted in 2010, the Department of Health and Human Services began the APA process, drafting proposed regulations, publishing them for comment, and publishing a final regulation that, with respect to the provisions in dispute in this case, was to go into effect on January 1, 2017.  During the Obama Administration, several different federal agencies responsible for interpreting and enforcing sex discrimination bans have been working through the issue of how these relate to gender identity.  The Equal Employment Opportunity Commission (EEOC) was the first to issue a ruling, in the context of adjudicating a federal job applicant’s complaint, that gender identity discrimination was actionable under Title VII’s sex discrimination ban, but in so doing it was actually following earlier case law, most specifically from the 6th Circuit, which used sex stereotyping analysis first accepted by the Supreme Court in 1989 in Price Waterhouse v. Hopkins, a Title VII case.  The HHS regulation drafters adopted similar reasoning to include “gender identity” in their proposed regulation, and included gender identity in the final Rule published in the federal register on May 18, 2016.  81 Fed. Reg. 31376-31473 (codified at 45 CFR Sec. 92).  By the time of that publication, the Education Department had taken the position that Title IX bans gender identity discrimination, in the context of a restroom access dispute in the %Gloucester County School District% case and a subsequent “Dear Colleague” letter published on its website and distributed to school districts nationwide.  However, HHS did not include in its proposed or final rule the religious exemption language from Title IX.

Several states and some religious health care providers joined together to challenge the new HHS Rule, not in its entirety but in a focused attack on the inclusion of “gender identity” and “termination of pregnancy” in the non-discrimination provisions. Blatantly forum shopping, they filed their suit in the U.S. District Court in Wichita Falls, an outpost of the Northern District of Texas where Judge O’Connor, the only judge assigned to that courthouse, sits a few days every month. (O’Connor’s chambers are in Fort Worth, the location of his home courtroom.)  Filing in a major city would subject the plaintiffs to a random assignment of a judge; filing in Wichita Falls guaranteed that their case would be heard by Judge O’Connor. O’Connor, who was appointed by President George W. Bush, has a propensity to issue nationwide injunctions against regulatory actions of the Obama Administration on grounds that they exceed executive branch authority.  His August 21 preliminary injunction in the Title IX case was not his first.  There is no logical reason why this case should have been filed in the Wichita Falls court, but plaintiffs can claim proper venue there by pointing to local members of the co-plaintiff Christian Medical & Dental Association (CMDA), a national organization, who may reside within the geographical confines of the Wichita Falls court, or to local Texas state agencies whose operation in that area would be affected.  (The court does not engage in a venue analysis, despite the obvious forum-shopping.)  Other private plaintiffs are Franciscan Alliance, Inc. and its wholly owned entity Specialty Physicians of Illinois LLC.  The public plaintiffs are the states of Texas, Wisconsin, Nebraska, Kansas, Louisiana, Arizona, Kentucky and Mississippi.  The heavy hand of Texas Attorney General Ken Paxton looms over the litigation, since Paxton has said, in effect, that his job is to sue the federal government every day on behalf of the right of Texas to operate free of federal regulatory constraints. Plaintiffs moved for partial summary judgment or, in the alternative, a preliminary injunction, on October 21, 2016, and the court agreed to expedite briefing and hearing so as to be able to rule, at least on the preliminary injunction, before the Rule could go into effect on January 1.

There is a basic argument between the parties as to the requirements imposed by the Rule. The plaintiffs argue that under the rule they would be required to provide gender transition surgery and abortions or suffer liability to patients and potential loss of federal funding eligibility.  They claim that this would violate their rights under the Religious Freedom Restoration Act, and that the government’s interpretation of the ban on sex discrimination to cover “gender identity” and “termination of pregnancy” went beyond regulatory authority.  HHS argues that the rule does not compel either procedure in every case, merely banning discrimination on these bases.  Thus, for example, it could be argued, if a health care provider/institution performs mastectomies, it may not take the position that it will perform a mastectomy for a woman as a treatment for breast cancer but will not perform a mastectomy for a transgender man as part of his transition process, as this would be sex discrimination. Both women and transgender men are entitled to mastectomies.  Similar arguments are made for a variety of the component parts of procedures, including, for example, hormone therapy, sterilization procedures and the like.  A woman suffering an estrogen deficiency can receive hormone therapy, and so can a transgender woman; depriving the transgender woman of estrogen therapy because she was identified male at birth is sex discrimination.  In effect, argue the private plaintiffs, the non-discrimination requirement would inevitably require them to perform procedures that violate their religious views, and, argue the public plaintiffs, would require them to violate various state laws and regulations, such as banning the termination of pregnancies in state facilities or the use of state Medicaid funds for gender transition or pregnancy termination procedures.  Judge O’Connor agreed with the private plaintiffs that however the dispute over interpretation is resolved, there is a likelihood that their exercise of religion would be substantially burdened.

A portion of the decision, not detailed here, goes through the analysis of jurisdiction, ripeness and administrative exhaustion, finding that none of those doctrines would require a finding against the court’s jurisdiction to grant the requested relief on this motion. Proceeding to the merits, Judge O’Connor provided a detailed discussion of the tests for issuing a preliminary injunction.

First, as to likelihood of success on the merits, he found that Title IX does not on its face ban discrimination because of “gender identity” or “termination of pregnancy.” Most of the discussion focuses on the “gender identity” issue, and channels the discussion accompanying his August 21 preliminary injunction against Title IX enforcement in gender identity cases.  The discussion regarding the abortion issue focuses on the failure of HHS to incorporate in its new regulation the religious and abortion exemptions in existing Title IX regulations, arguing that Congress’s wording of the Section 1557 non-discrimination provision led to the conclusion that such incorporation was intended by Congress.

“The precise question at issue in this case is: What constitutes Title IX sex discrimination?” he wrote. “The text of Section 1557 is neither silent nor ambiguous as to its interpretation of sex discrimination.  Section 1557 clearly adopted Title IX’s existing legal structure for prohibited sex discrimination.  42 U.S.C. sec. 18116(a).  For the reasons set out more fully below, this Court has previously concluded: the meaning of sex in Title IX unambiguously refers to ‘the biological and anatomical differences between male and female students as determined at their birth.’  Texas v. United States, No. 7:16-cv-00054, 2016 WL 4426495, at *14 (N.D. Tex. Aug. 21, 2016).”  Judge O’Connor reinforced this reference with a citation to the federal district court ruling in %Johnston v. Univ. of Pittsburgh of Com. Sys. of Higher Educ.%, 97 F. Supp. 3d 657, 674 (W.D. Pa. 2015), %appeal dismissed% (Mar. 30, 2016), rejecting a Title IX gender identity discrimination claim by a transgender college student with restroom access issues, but omits reference at this point to the contrary ruling the 4th Circuit in the Gloucester County case.  Because he finds Title IX unambiguous on this point, he concludes that the HHS Rule is not entitled to Chevron deference that would normally be accorded a regulation adopted under the APA, and proceeds to apply his own interpretation of the statute, in which he finds Congress’s “binary definition of sex” to be shown by references in the statute to “students of one sex,” “both sexes,” and “students of the other sex.”  He also appeals to “ordinary meaning,” to the failure of Congress to spell out any intent to cover “gender identity,” and to the fact that as of the time the ACA was enacted, federal agencies had not yet begun to treat “gender identity” discrimination as cognizable under sex discrimination statutes.

He wrote that “even if, as Defendants argue, the definition of sex discrimination was determined in 2010 when the ACA incorporated Title IX’s prohibition of sex discrimination, the Court is not persuaded it was passed with the Rule’s expansive scope in mind because: (1) Congress knew how but did not use language indicating as much, and (2) in 2010 no federal court or agency had interpreted Title IX sex discrimination to include gender identity.” (To this point he quoted a Washington Post article from 2015 stating that the new HHS Rule “for the first time includes bans on gender identity discrimination as a form of sexual discrimination, language that advocacy groups have pushed for and immediately hailed as groundbreaking.”)  And, of course, he notes that before the ACA was passed and “for more than forty years after the passage of Title IX in 1972, no federal court or agency had concluded sex should be defined to include gender identity” in a Title IX case.  In a footnote, he rejected the government’s attempt to bolster its case by reference to Price Waterhouse, pointing out that it was Title IX, not Title VII, which was incorporated by reference into the ACA.

As to the failure of the Rule to incorporate Title IX’s religious exemption language, he wrote, “The text of Section 1557 prohibits discrimination ‘on the ground prohibited under Title IX of the Education Amendments Act of 1972 (20 U.S.C. 1681 et seq.).’ . . . That Congress included the signal ‘et seq.’, which means ‘and the following,’ after the citation to Title IX can only mean Congress intended to incorporate the entire statutory structure, including the abortion and religious exemptions.  Title IX prohibits discrimination on the basis of sex, but exempts from this prohibition entities controlled by religious organizations when the proscription would be inconsistent with religious tenets.  20 U.S.C. sec. 1681(a)(3).  Title IX also categorically exempts any application that would require a covered entity to provide abortion or abortion-related services. 20 U.S.C. sec. 1688.  Therefore, a religious organization refusing to act inconsistent with its religious tenets on the basis of sex does not discriminate on the ground prohibited by Title IX,” and any attempt by HHS to impose the non-discrimination requirement without including the religious exemption violates Congressional intent.  O’Connor bolstered this point by invoking the Supreme Court’s Hobby Lobby decision, finding that the Rule “places substantial pressure on Plaintiffs to abstain from religious exercise” by forcing them to provide services contrary to their religious tenets, and that the government’s desire to expand access to “transition and abortion procedures,” even if deemed a “compelling interest” for purposes of the federal Religious Freedom Restoration Act, was not the least restrictive alternative for providing such access, and thus failed under Hobby Lobby.  Taking his cue from Justice Samuel Alito’s opinion in that case, O’Connor pointed out that the government could offer to pay for transition and abortion services to be provided by those who did not have religious objections to them in order to avoid burdening the Plaintiff’s religious rights.

In another point worth noting, O’Connor cited to an HHS study showing that the medical community is not unanimous on the value and necessity of performing transition procedures, particularly on minors, undermining the “compelling interest” that the government must show under RFRA to justify substantially burdening health care providers with sincere religious objections to performing such procedures.

Having concluded that the plaintiffs were likely to succeed on the merits of their attack, O’Connor found that they easily satisfied the other requirements for preliminary injunctive relief, noting in particular that an ongoing investigation of the state of Texas’s practices made the potential of harm to the Plaintiffs more than hypothetical, as did the looming requirement for the private Plaintiffs to change the range of services they offer or risk loss of federal funding. More significantly, as to the scope of the injunction, he cited authority that “the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class,” and that “a nationwide injunction is appropriate when a party brings a facial challenge to agency action under the APA.”  In this case, he pointed out, “CMDA’s membership extends across the country and the Rule applies broadly to ‘almost all licensed physicians,’” quoting the HHS description published in the Federal Register.  “Accordingly, the Rule’s harm is felt by healthcare providers and states across the country, including all of CMDA’s members, and the Court finds a nationwide injunction appropriate.”  Noting a severability provision in the Rule, he observed that the injunction only applied to the inclusion of “gender identity” and “termination of pregnancy” under the definition of sex discrimination, and did not bar enforcement of any other part of the Rule.  A preliminary injunction stays in effect until the court issues a ruling on the merits, unless it is reversed on appeal.  As of December 31, the Obama Administration had barely three weeks left in office, to be succeeded by an administration much less likely to defend the Rule, so while this is merely preliminary relief for the Plaintiffs, it signals a major and probably long-term setback to efforts by transgender people to obtain non-discriminatory health care, including coverage for medically-necessary transition procedures.