Courtly Doings

The ACLU filed a motion yesterday for a stay on the national court order preventing the federal government from enforcing an ACA regulation that protects women and gender-variant people from discrimination in healthcare. The ACLU also asked the court to issue a formal ruling on its request to intervene in the lawsuit.

The case is Franciscan Alliance v. Burwell. On the last day before the anti-discrimination regulations were to go into effect, a federal judge in Texas halted the enforcement of the regulation in Section 1557 of the ACA.

The nationwide injunction restrains the government from enforcing the regulation to prevent public and private healthcare providers, including hospitals and healthcare centers, from discriminating against transgender people and women. Such discrimination may include harassment, refusal to perform essential healthcare services like reproductive or gender-affirming care, and denials of insurance coverage for essential healthcare services.

Religious liberty does not mean the right to discriminate or harm others. No one should live in fear of being turned away at a hospital because of who they are, and we’re ready to fight this decision sanctioning discrimination. We won’t sit idly by while women and transgender people continue to see their rights come under assault.

--Louise Melling, ACLU

The judge’s court order is a direct attack on the transgender community’s right to function normally and safely in everyday life. Our access to medically necessary health care treatment is being restricted simply because of who we are.

--Kate Parrish, River City Gender Alliance

The ACLU's motion is here.

Meanwhile the US DOJ has asked the Court of Appeals for the 5th District in New Orleans to vacate a nationwide injunction issued by the same federal judge in Texas which blocked the federal guidance asking schools to respect the rights of transgender students in an application of Title IX.

In its 5th Circuit brief, the Justice Department says the appeals court should not take up the question of whether the Education Department's Title IX interpretation is correct because the U.S. Supreme Court is weighing that question in a pending case, Gloucester County School Board v. G.G.

The 5th Circuit court "nonetheless should not await the Supreme Court's decision, because the preliminary injunction should be vacated on grounds entirely independent of the district court's misinterpretation of the Title IX regulation," says the Justice Department's brief in State of Texas v. United States.

The brief argues that the Title IX guidance, as well as other transgender guidance put forth by the Justice Department and other federal agencies under Title VII of the Civil Rights Act of 1964, did not require a notice-and-comment rulemaking process under the Administrative Procedures Act.

'None of the six guidance documents at issue here constitutes 'final agency action'—a prerequisite for APA review—because the guidance documents carry no legal force, but rather simply advise the public of the agencies' understanding of the law.

If a federal agency ever brought an enforcement action against any plaintiff, that action would rest on the statutes, not on the non-binding guidance.. As to Title IX, such enforcement action would generally occur through multi-stage administrative proceedings, followed by an opportunity for judicial review in the court of appeals.

--The Brief

The brief also argues that O'Connor overstepped his authority by making his preliminary injunction against the guidance a nationwide injunction. While Texas and 10 other states, along with school districts from two other states, filed the lawsuit and sought the injunction, 12 other states and the District of Columbia filed a brief in the district court stating that they welcome the transgender guidance, the department points out.

Texas cannot seek to enjoin the federal government's interactions with New York any more than New York may seek to enjoin the federal government's interactions with Texas.

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