Neese v. Becerra

Neese v. Becerra

Opinion

OPINION AND ORDER

In his Bostock dissent, Justice Alito foresaw how litigants would stretch the majority opinion like an elastic blanket to cover categories, cases, and controversies expressly not decided. Justice Alito warned: "The entire [*2]  Federal Judiciary will be mired for years in disputes about the reach of the Court's reasoning." 140 S. Ct. 1731, 1783, 207 L. Ed. 2d 218 (2020) (Alito, J., dissenting); see also id. at 1781 (Alito, J., dissenting) ("Similar claims have been brought under the Affordable Care Act (ACA), which broadly prohibits sex discrimination in the provision of healthcare.").

And here we are . . . .

Before the Court is Plaintiffs Susan Neese and James Hurly's Motion for Summary Judgment ("Plaintiffs' Motion") (ECF No. 46) and Defendants' Motion for Summary Judgment ("Defendants' Motion") (ECF No. 55).¹ Having considered the pleadings and applicable law, the Court GRANTS IN PART Plaintiffs' Motion and GRANTS IN PART Defendants' Motion.

Background

Section 1557 of the Affordable Care Act prohibits discrimination "on the basis of sex." See 42 U.S.C. § 18116(a) (incorporating, among other things, Title IX's prohibition of discrimination "on the basis of sex," 20 U.S.C. § 1681(a), into Section 1557). In Bostock, the Supreme Court held Title VII's "because of . . . sex" terminology prohibits "sexual orientation" and "gender identity" discrimination in employment.² See generally 140 S. Ct. 1731, 207 L. Ed. 2d 218. Citing Bostock, the United States Department of Health and Human Services ("HHS") announced it would "interpret and enforce" Section 1557's prohibition on discrimination "on the basis of sex" [*3]  to include "on the basis of sexual orientation" and "on the basis of gender identity." See generally United States Department of Health and Human Services, Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, 86 Fed. Reg. 27,984 (May 25, 2021) ("Notification").

Plaintiffs — two Texas-based physicians — allege Defendants misread Bostock and argue that healthcare providers may continue sex-specific medical decisions relevant to "gender identity" "so long as one does not engage in 'sex' discrimination when doing so." ECF No. 11 at 5. Specifically, Plaintiffs allege neither Section 1557 nor Bostock prohibits such discrimination, "as long as they would have acted in the exact same manner if the patient had been a member of the opposite biological sex." ECF No. 17 at 16. Plaintiffs "object only to the Secretary's claim that Rostock defined 'sex' discrimination to encompass all forms of discrimination on the basis of sexual orientation or gender identity." Id. Plaintiffs state they "fully intend to comply with Bostock and its interpretation of 'sex.'" Id.

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