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Biden Administration Proposes New Anti-Discrimination Regulations Restoring Protection for LGBTQ Individuals Under the Affordable Care Act

Posted on: July 27th, 2022 by Art Leonard No Comments

The Biden Administration’s Department of Health and Human Services (HHS) proposed new regulations on July 25 to replace the Trump Administration’s regulations issued in 2020 under the anti-discrimination provision of the Affordable Care Act (ACA), Section 1557.  The proposed regulations will not become effective until after a public comment period and subsequent possible revisions in light of the comments received, as required under the Administrative Procedure Act (APA).  The proposed regulations build upon regulations adopted by the Obama Administration in 2016, but they propose new coverage that is even more extensive than those regulations provided.  The Trump Administration regulations sharply cut back on the Obama regulations, including removing protection against discrimination because of gender identity and exempting insurance companies from the anti-discrimination requirements.

The ACA was adopted on a very close party-line vote in 2010, shortly before Republicans gained control of Congress as a result of the mid-term elections during President Obama’s first term.  Because of the complexities of the lengthy and detailed statute, it took several years until the Obama Administration finished finalizing regulations in 2016. One of the most controversial elements of the 2016 regulations was the interpretation of the anti-discrimination provision to ban gender identity discrimination by entities subject to Section 1557, although the regulation was ambiguous about whether this meant that health insurers were required to cover gender-affirming surgery in order to meet the coverage requirements posed by the ACA.  Litigation against the regulation quickly resulted in a preliminary injunction and it never actually went into effect.

The Trump Administration was determined to remove gender identity from the list of prohibited grounds of discrimination, but it took until the spring of 2020 for HHS to published a new proposed regulation to displace the 2016 regulation.  This proposed regulation was published shortly before the Supreme Court ruled in June 2016 in Bostock v. Clayton County that the ban on employment discrimination because of sex under Title VII of the Civil Rights Act of 1964 extended to claims of discrimination because of sexual orientation or gender identity.  The explanatory material accompanying the Trump Administration’s proposed regulation asserted that the inclusion of gender identity in the 2016 regulation was not supported by Section 1557, but noted that a ruling in Bostock was pending.  However, after the Bostock decision was announced, the Trump Administration insisted that its reasoning applied only to Title VII, not to Section 1557.

Section 1557 does not directly list forbidden grounds of discrimination under the ACA.  Instead, it provides that “an individual shall not, on the grounds prohibited under title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, or section 794 of title 29, 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 this title.”

Title VI of the Civil Rights Act refers to discrimination because of race, Title IX of the Education Amendments refers to discrimination on account of sex, the Age Discrimination Act’s purpose is obvious from its title, and Section 794 of title 29 prohibits discrimination because of disability.  Thus, Section 1557 prohibits discrimination on the basis of race, sex, age, or disability to the extent such discrimination is prohibited under those statutes.

The Trump Administration contended that because the prohibition of sex discrimination under Section 1557 was derived from Title IX of the Education Amendments rather than from Title VII of the Civil Rights Act, the Bostock decision did not apply to it, which was consistent with the Trump Administration’s position that Bostock did not apply to any federal sex discrimination laws except Title VII, and then only in a limited way.  The Department of Education under Trump also maintained that Title IX does not ban educational institutions receiving federal funds from discriminating based on sexual orientation or gender identity, and took that position in litigation under Title IX.  Most, but not all, federal courts that have considered these questions have rejected the Trump Administration’s position.  Thus, although the Education Department under Secretary Betsy Devos stopped processing sexual orientation or gender identity claims by students against educational institutions, individual plaintiffs were filing suit and achieving court victories addressing such discrimination during the Trump Administration, although some conservative judges (especially those appointed by Trump) were rejecting such claims.

When the ACA was enacted in 2010, some federal courts had already begun to recognize gender identity discrimination claims under Title VII, but it was only afterwards that some courts began to recognize gender identity discrimination claims under Title IX as well.  The Obama Administration took an affirmative position on that issue a few years after the ACA was enacted by sending a letter of interest to the U.S. District Court in Virginia that was considering a lawsuit by Gavin Grimm, a transgender boy whose high school refused to let him use the boys’ restroom facilities, so it was not surprising that HHS’s proposed regulations in 2016 took the position that Section 1557 prohibited gender identity discrimination by health care providers and insurers who were subject to Section 1557.  (Gavin Grimm eventually won his case in the U.S. Court of Appeals for the 4th Circuit, whose ruling the Supreme Court refused to review.)

The Equal Employment Opportunity Commission (EEOC) began recognizing gender identity discrimination claims under Title VII in 2012, ruling on a discrimination claim by Mia Macy, a transgender woman, who was denied a job by the Bureau of Alcohol, Tobacco, Firearms and Explosives, a unit of the U.S. Department of Justice.  In 2015, the EEOC first recognized a sexual orientation discrimination claim against the Department of Transportation in a case brought by David Baldwin, a gay air traffic controller.  By the time the Supreme Court ruled in Bostock in 2020, several federal circuit courts had overruled old precedents to hold that sexual orientation and gender identity claims could be brought under Title VII, although the circuit courts were not unanimous on the issue.

The Trump Administration went ahead and published its proposed 2020 regulation, withdrawing coverage of gender identity claims, despite the Supreme Court’s ruling in Bostock.  Although technically Bostock was decided only under Title VII, Justice Neil Gorsuch’s opinion for the Supreme Court employed reasoning that was obviously applicable to all sex discrimination laws.  He proclaimed that it was impossible to discriminate “because of” a person’s sexual orientation or gender identity without taking account of their biological sex, because the very definitions of those concepts necessarily referred to the biological sex of the individual.  He exclaimed that it would be impossible to describe the concepts of “sexual orientation” or “gender identity” without mentioning sex, so discrimination on those grounds necessarily involved taking account of an individual’s sex.  Because Title VII prohibited discriminating “because of” a person’s sex, taking account of a person’s sex in deciding to discharge them (which was the issue in the cases from three circuit courts that the Supreme Court was deciding in Bostock) potentially violated the statute.  Title VII does allow an employer to discriminate based on sex when sex is a “bona fide occupational qualification” for the job in question, but the Supreme Court has ruled that this is a narrow exception to the general rule, and it would not have applied to any of the cases then pending before the Supreme Court in Bostock.

On January 20, 2021, President Biden issued an Executive Order directing federal agencies that enforce sex discrimination laws to follow the reasoning of the Bostock decision, and to issue new guidelines or regulations as necessary to prevent discrimination against LGBTQ people.  A few months later, the Education Department and the Health and Human Services Department had given notice that they would follow the Bostock ruling in enforcing Title IX and Section 1557, and the EEOC has never waivered from its prior rulings under Title VII in the Macy and Baldwin cases.  However, litigation challenging these positions has been filed in federal courts, and preliminary injunctions issued to block enforcement actions by the agencies while the cases are pending. The 2016 regulation adopted by the Obama Administration under Section 1557 was not enforced by the Trump Administration, which had informed the courts that it would not be enforced while they worked on proposing a new regulation to replace it.

Removing gender identity protection was not the only change effected by the Trump Administration’s 2020 regulation.  It also adopted a narrow interpretation of Section 1557, under which it asserted that insurance companies were not covered by the anti-discrimination requirement because they did not deliver health care directly.  It asserted that various exceptions contained in Title IX, for example for religious educational institutions, should be interpreted to carry over as exceptions under Section 1557. It asserted that Section 1557 applied only to entities covered by the ACA, giving a narrow reading to the somewhat ambiguous part of Section 1557 dealing with its scope of application to all health care programs that receive federal money.  The 2020 regulation also repealed various procedural requirements that the 2016 regulation imposed on employers and insurance companies to designate individuals charged with enforcing the anti-discrimination requirements, undertaking training of staff, giving formal notice to individuals about their rights, and setting up formal procedures for dealing with discrimination complaints.

Under the regulations proposed by the Biden Administration, the existing regulations will be amended to explicitly list sexual orientation and gender identity wherever discrimination because of sex is addressed, the Trump Administration’s narrow definition of covered entities and Title IX exception is replaced by a broad reading including insurance companies and going beyond programs established under the ACA, the procedural requirements imposed by the Obama Administration’s 2016 regulation are reinstated, and for the first time HHS is taking the position that Section 1557 applies to Medicare Part B, the health insurance program covering Americans age 65 and older.  It already applies to Medicaid, as well as the health insurance programs adopted by state and local governments for their employees. The regulation does acknowledge, however, that its application is subject to the requirements of the Religious Freedom Restoration Act, which provides an affirmative defense against enforcement by the government that burdens the free exercise of religion, so it is questionable whether the requirement that insurance plans cover gender-affirming treatment will ultimately extend to health care institutions operated by those religious bodies which reject such treatments.

The proposed regulations run to more than 300 very detailed pages in the pdf file released by HHS, which helps to explain why it took 18 months for the Department to come up with this comprehensive proposal.  It will definitely attract litigation, most likely from the same states and associations that attacked the 2016 regulations.  If such litigation eventually rises to the level of the Supreme Court, it will test the willingness of the Court to treat Bostock as a broadly binding precedent.  That case was decided by a 6-3 vote, with Chief Justice John Roberts joining Justice Gorsuch’s opinion, which was also supported by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.  If Roberts and Gorsuch do not back away from the logical extension of Bostock’s reasoning, there would still be at least a 5-4 majority assuming that Justice Ketanji Brown Jackson, the Court’s newest member, and Justices Sotomayor and Kagan would also vote to reaffirm and apply Bostock to Title IX and thus by extension to Section 1557.

U.S. Education Department to Publish Official Interpretation of Title IX Covering Sexual Orientation and Gender Identity Discrimination

Posted on: June 16th, 2021 by Art Leonard No Comments

Following up on President Joe Biden’s Executive Orders of January 20 and March 8, 2021, and a March 26 Memorandum by the Civil Rights Division of the Department of Justice, the U.S. Department of Education announced on June 16 that it is publishing a “Notice of Interpretation” in the Federal Register confirming that Title IX of the Education Amendments of 1972, which prohibits educational institutions that received federal funding from discriminating against students “on the basis of sex,” applies to discrimination because of sexual orientation or gender identity (transgender status).

The announcement came just a year after the Supreme Court interpreted Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of sex,” to include discrimination because of sexual orientation or transgender status, in Bostock v. Clayton County, Georgia.  In Bostock, the Court combined cases from the 2nd, 6th and 11th Circuit Courts of Appeals involving two gay men and a transgender woman, and voted 6-3 that any discrimination against an employee because they are gay, lesbian or transgender is necessarily at least in part because of their sex.  President Donald J. Trump’s first appointee to the Court, Justice Neil Gorsuch, wrote the opinion for the Court by assignment from Chief Justice John Roberts, who joined the opinion together with Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor.

Although the Bostock decision directly interpreted only Title VII, its reasoning clearly applied to any law that prohibits discrimination “because of sex” or “on the basis of sex,” as the Education Department’s Acting Assistant Secretary for Civil Rights, Suzanne B. Goldberg, wrote in the Notice issued on June 16.  In his January 20 Executive Order, President Biden directed all Executive Branch agencies to consider the implications of the Bostock decision for their policies and programs, and to apply the reasoning of that decision to the extent it was consistent with purposes of the particular policies and programs.  His March 8 Executive Order explicitly referenced sexual orientation and gender identity in “guaranteeing an educational environment free from discrimination on the basis of sex.”

“After reviewing the text of Title IX and Federal courts’ interpretation of Title IX,” wrote Goldberg, “the Department has concluded that the same clarity [that the Supreme Court found under Title VII] exists for Title IX.  That is, Title IX prohibits recipients of Federal financial assistance from discrimination based on sexual orientation and gender identity in their education programs and activities.  The Department has also concluded for the reasons described in this Notice that, to the extent other interpretations may exist, this is the best interpretation of the statute.”

The Notice listed “numerous” lower federal court decisions that were issued over the past year taking this position, including the most recent ruling by the 4th Circuit Court of Appeals in the Gavin Grimm case, concerning a transgender boy who was denied access to restroom facilities at a Virginia high school.  The school board in that case filed a petition seeking Supreme Court review on February 24, which would present the Supreme Court with a ready vehicle to weigh in on this issue if it wants to do so.

Reversing the position taken by the Education Department during the Trump Administration, the Notice announces that the Department will investigate sexual orientation and gender identity discrimination allegations by students.  “This includes allegations of individuals being harassed, disciplined in a discriminatory manner, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity,” wrote Goldberg.  She pointed out that a determination whether Title IX was violated will depend on the facts of individual cases, and of course Title IX applies only to schools that receive federal funds.

In a footnote, Goldberg pointed out that “educational institutions that are controlled by a religious organization are exempt from Title IX to the extent that compliance would not be consistent with the organization’s religious tenets,” citing 20 U.S.C. section 1681(a)(3).  There is a pending federal lawsuit against the Education Department by a group of students from such religious schools claiming that this section violates the 1st Amendment Establishment Clause.  Religious schools have moved to intervene as parties in that lawsuit, claiming that the government may not sufficiently defend their exemption.  The Justice Department has opposed their motion in a recent court filing, asserting that the government will “vigorously” defend the challenged provision.  The religious exemption was a politically necessary compromise to get Title IX adopted by Congress.

While the June 16 Notice states that its interpretation of Title IX “supersedes and replaces any prior inconsistent statements made by the Department regarding the scope of Title IX’s jurisdiction over discrimination based on sexual orientation or gender identity,” it goes on to say that this “interpretation does not reinstate any previously rescinded guidance documents.”  This comment is significant, because during the Obama Administration the Education Department issued guidance documents on Title IX compliance requirements that took positions on many of the controversial issues that have been subject to litigation.  Those guidance requirements were cited by school boards and administrators in defending actions they took, even after the guidances were formally rescinded by the Education Department shortly after Betsy DeVos was confirmed as Secretary of Education.  DeVos took the position, later bolstered by a memorandum by Attorney General Jeff Sessions in October 2017, that Title IX did not cover sexual orientation or gender identity discrimination.

Miguel Cardona, Biden’s Secretary of Education, told The New York Times in an interview published on June 16 that “Students cannot be discriminated against because of their sexual orientation or their gender identity,” but left unclear the question whether his Department would be challenging state laws that ban transgender girls from competing in school sports.  He stated, “We need to make sure we are supporting all students in our schools,” but he did not get specific about particular challenged policies.  Making clear that “all” really means “all,” the Notice says that the Department’s Office of Civil Rights “carefully reviews allegations from anyone who files a complaint, including students who identify as male, female or nonbinary; transgender or cisgender; intersex; lesbian, gay, bisexual, queer, heterosexual, or in other ways.”

The U.S. Court of Appeals for the 9th Circuit recently heard arguments in the State of Idaho’s appeal from a district court decision finding that the state’s ban on transgender girls playing sports, the first such ban to be enacted, violates the constitutional rights of the transgender girls.  If this issue ends up in the Supreme Court, the Biden Administration will have to take a position one way or the other, just as it will be pressed to take a position if the Court grants the petition by the Gloucester County School Board in the Gavin Grimm case.  A federal court in Connecticut recently dismissed a lawsuit by a group of cisgender female high school athletes challenging a state policy of allowing transgender girls to compete, finding that the plaintiffs lacked standing to bring the issue to the court.

The Education Department’s interpretation of Title IX is not binding on the federal courts, but is entitled to some degree of deference under principles of administrative law.   After DeVos and Sessions “rescinded” the Obama Administration’s interpretation and guidance documents, many federal courts continued to rule in favor of transgender students and school administrators who had adopted policies allowing transgender students to use restroom facilities.  The lower federal courts have been united up to now in rejecting claims by parents and students that allowing transgender students to use restroom and locker room facilities violates the constitutional privacy rights of non-LGBTQ students, and the Supreme Court has so far refrained from hearing those cases.

As President Biden has boasted about how many LGBTQ people he has appointed, it is worth noting that both the Justice Department Civil Rights Division March 26 Memo and the June 16 DOE Notice were authored by out lesbian appointees, Pamela Karlan and Suzanne Goldberg.

Federal Court Enjoins HHS & EEOC From Requiring Catholic Plaintiffs to Perform or Provide Gender Transition Services

Posted on: January 23rd, 2021 by Art Leonard No Comments

Ruling on the last full day of the Trump Administration, one of the federal trial judges appointed by the outgoing president ruled that the Religious Freedom Restoration Act (RFRA) bars the federal government from enforcing the non-discrimination requirement of the Affordable Care Act (ACA) Section 1557 or Title VII of the Civil Rights Act of 1964 against Catholic plaintiffs to require them either to fund or perform gender transition procedures.  Religious Sisters of Mercy v. Azar, 2021 WL 191009, 2021 U.S. Dist. LEXIS 9156 (D.N.D., January 19, 2021).  Chief Judge Peter D. Welte denied summary judgment to co-plaintiff the State of North Dakota, which sought a declaration that it is not required to provide such procedures in its state health institutions or to its employees or through its Medicaid program, and found that the Plaintiffs lacked standing on their claims concerning performance of abortions and sterilizations, as the court found that various provisions of the ACA and other federal laws already relieved them of obligations in that regard.

Judge Welte issued his opinion just a few days after hearing oral argument on the summary judgment motions, but the case has been pending for a long time and it is likely that he had most of the lengthy, analytical opinion drafted well in advance of the argument, on the basis of the suit papers.

The case was complicated by the history of the federal government’s positions on the issue in question, which changed to the extent of the Trump Administration withdrawing an Obama Administration regulation from  2016 and replacing it with a new regulation, formally announced just days before the Supreme Court’s Bostock v. Clayton County decision.  In Bostock, 140 S. Ct. 1731 (June 15, 2020), the Court determined that Title VII’s ban on discrimination because of sex necessarily extended to claims of discrimination because of sexual orientation and transgender status.

The final regulation announced days before Bostock acknowledged that the case had been argued and indicated that its outcome could affect the scope of the ACA’s non-discrimination requirement.  In its explanatory Prologue to the regulation, HHS reiterated the Trump Administration’s view – presented to the Court in Bostock by the Solicitor General – that discrimination because of sex does not encompass discrimination because of gender identity.  Confident that they were going to win, their new regulation, intended to supplant the Obama Administration’s regulation, removed the earlier regulation’s definition of “sex” so that it no longer specified “gender identity.”  They went ahead and officially published the new regulation as previously schedule in the Federal Register a few days after Bostock was decided, making no effort to delay publication in order to take account of that decision.  The result was peculiar: a regulation formally published just days after a Supreme Court decision that admittedly could affect the substance of the regulation, but utterly failing to grapple with that effect.

The Trump Administration’s brazen decision to go ahead with final publication without taking Bostock into account persuaded several other federal district courts to conclude that the final regulation’s definition of sex violated the Administrative Procedure Act as being inconsistent with the ACA statute’s non-discrimination requirement and/or because it was adopted arbitrarily by failing to consider the Bostock decision.  Other district courts have also criticized HHS’s assertion in the regulation that Title IX’s religious entity exemption was relevant to the ACA, inasmuch as the ACA’s non-discrimination provision specifies that entities covered by it were subject to the kinds of discrimination prohibited by Title IX, which exempts religious schools from its sex discrimination requirements.  The Trump Administration had also persisted in rejecting arguments that Bostock’s interpretation of Title VII necessarily applied to Title IX and other federal sex discrimination laws.

The day after Judge Welte issued his decision, President Biden included among his first Executive Orders one instructing the Executive Branch to apply Bostock to all federal sex discrimination laws.  While EO’s are not interpretively binding on the courts, they are binding on how Executive Branch agencies interpret and enforce their statutory mandates, so the new leadership in HHS and, eventually, the EEOC (where the president gets to appoint one new member of the Commission each year, relatively quickly tipping the balance to the new Administration’s viewpoint regarding the definition of sex discrimination.

But that is neither here nor there regarding the central question in this case, at least as framed by Judge Welte in response to the Catholic plaintiffs, which is whether the government is precluded from enforcing any such non-discrimination requirement against the plaintiffs according to their religiously-based objections, in light of the Religious Freedom Restoration Act.

In Bostock, Justice Neil Gorsuch referred to RFRA as a “super statute” that may override non-discrimination requirements of Title VII (and by extension Title VII and the ACA) in an “appropriate case.”  Is this such an appropriate case?  That turns on whether application of the non-discrimination requirement imposes a substantial burden on the free exercise of religion by the Catholic plaintiffs, in which case Judge Welte characterizes the level of judicial review to be applied to the government’s policy as “strict scrutiny” such that the policy can only be applied if it is the least intrusive way to achieve a compelling government interest.

The court found that “compliance with the challenged laws would violate the Catholic Plaintiffs’ religious beliefs as they sincerely understand them. . .  In meticulous detail, the Catholic Plaintiffs have explained that their religious beliefs regarding human sexuality and procreation prevent them from facilitating gender transitions through either medical services or insurance coverage.”

As to the compelling interest test, the court found that the Defendants “never attempt to make that showing here.”  Of course, Defendants are the Trump Administration’s HHS (for the ACA) and EEOC (for Title VII).  The rule HHS published in June 2020 “conceded to lacking a ‘compelling interest in forcing the provision, or coverage, of these medically controversial [gender-transition] services by covered entities.’”  By contrast, of course, when the Obama Administration opined on this in 2016, HHS specified a compelling interest in ensuring nondiscriminatory access to healthcare, and the EEOC asserted a compelling interest in ensuring non-discriminatory employee benefits plans.  But Judge Welte noted Supreme Court authority that those interests are stated at too high a level of generality to meet the RFRA test, directing courts to “scrutinize the asserted harm of granting specific exemptions to particular religious claimants and to look to the marginal interest in enforcing the challenged government action in that particular context.”  Responding to this command, wrote Welte, “Neither HHS nor the EEOC has articulated how granting specific exemptions for the Catholic Plaintiffs will harm the asserted interests in preventing discrimination. . .  In short, the Court harbors serious doubts that a compelling interest exists.  This issue need not be resolved, however,” he continued, “because the Defendants fail to meet the rigors of the least-restrictive-means test.”

The “least-restrictive means” test is the third part of the RFRA analysis.  Even if the government’s interest is compelling, the question is whether there is a way to achieve that interest without burdening the free exercise rights of the plaintiffs.  Is requiring Catholic entities to perform or finance gender transition the “only feasible means to achieve its compelling interest,” asks the court.  Here, resorting to the Supreme Court’s Hobby Lobby case, Welte suggests that “the most straightforward way of doing this would be for the Government to assume the cost of providing gender transition procedures for those unable to obtain them under their health-insurance policies due to their employers’ religious objections.” And, he opined, “if broadening access to gender-transition procedures themselves is the goal, then ‘the government could assist transgender individuals in finding and paying for transition procedures available from the growing number of healthcare providers who offer and specialize in those services,’”  quoting Franciscan Alliance, a decision from the Northern District of Texas that had preliminarily enjoined the government from bringing enforcement actions under Section 1557 against religious objectors.  (That injunction was dissolved when the Trump Administration indicated to that court that it did not intend to enforce Section 1557 against religious objectors and would replace the 2016 Obama Administration regulation with one that did not require such coverage.) And, said the court, the Defendants had not shown that “these alternatives are infeasible.”

Thus, the court granted summary judgment and issued a permanent injunction against enforcement of Sec. 1557 or Title VII against the Catholic Plaintiffs in this case.  The court did not issue a nationwide injunction, however, limiting its injunction to the plaintiff organizations in this case, and as noted finding that the state of North Dakota did not have standing on these questions, rejecting its Spending Clause argument that the government was wrongly coercing the state to fund gender transition through the Medicare and Medicaid programs.

It is worth noting that this litigation was not brought on by an actual case of a transgender individual seeking gender transition services from a Catholic health care organization, or the employee of a Catholic entity challenging the failure of the employer’s health insurance to cover the procedures, or in response to a challenge to the state’s failure to cover these procedures for its employees or Medicaid participants.  This was affirmative litigation brought by the state and the Catholic plaintiffs preemptively, seeking to establish judicial cover for their discriminatory policies.  As such, and significantly, the interests of transgender people were not directly represented in this case although the ACLU participated as amicus curiae.   (Curiously, the Westlaw report of the case did not list the ACLU among counsel, but the Lexis report did as of January 23 when this account was written.)  The Plaintiffs were represented by the North Dakota Attorney General’s Office, The Becket Fund for Religious Liberty, and private counsel for several of the Catholic institutional plaintiffs.  The government (i.e., the Trump Administration) was represented by the Justice Department and the U.S. Attorney’s Office for North Dakota, which of course was happy to let the Plaintiffs win in light of the Administration’s position opposing the Bostock ruling and their issuance of the 2020 Regulation (which the court could plausibly have found mooted the case, were it not for the fact that he was ruling the day before President Biden was to be inaugurated).  Now it is up to the Biden Administration to take over and appeal this decision to the 8th Circuit, in light of the President’s January 20 Executive Order.