Case: 20-10093 Document: 00515822785 Page: 1 Date Filed: 04/15/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 15, 2021
No. 20-10093 Lyle W. Cayce
Clerk
Franciscan Alliance, Incorporated; Christian Medical
and Dental Society; Specialty Physicians of Illinois,
L.L.C.,
Plaintiffs—Appellants,
versus
Xavier Becerra, Secretary, U.S. Department of Health and Human
Services; United States Department of Health and Human
Services,
Defendants—Appellees,
versus
American Civil Liberties Union of Texas; River City
Gender Alliance,
Intervenors—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:16-CV-108
Case: 20-10093 Document: 00515822785 Page: 2 Date Filed: 04/15/2021
Before Elrod, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Religious medical providers challenged a Department of Health and
Human Services 2016 rule prohibiting discrimination on the basis of
“termination of pregnancy” and “gender identity.” 1 The providers claimed
that the rule violated the Administrative Procedure Act by defining “sex
discrimination” inconsistently with Title IX, the statutory basis for the rule.
They also claimed that the rule violated the Religious Freedom Restoration
Act by forcing them to perform abortions and gender-transition surgeries
against their sincerely held religious beliefs. The district court agreed. It
vacated the offending provisions of the rule but declined to enter a permanent
injunction. The providers timely appealed the denial of injunctive relief.
Since then, the legal landscape has shifted significantly: HHS
repealed the 2016 rule and finalized a new rule in 2020; 2 the Supreme Court
interpreted Title VII’s prohibition of “sex discrimination” to include gender
identity in Bostock v. Clayton County; 3 applying Bostock’s reasoning to Title
IX, two district courts entered preliminary injunctions against the 2020 rule
and purported to restore certain provisions of the 2016 rule at the center of
this case; 4 President Biden issued an executive order declaring that his
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
1
Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,375, 31,467
(May 18, 2016) (formerly codified at 45 C.F.R. § 92.4 (2016)).
2
Nondiscrimination in Health and Health Education Programs or Activities,
Delegation of Authority, 85 Fed. Reg. 37,160 (June 19, 2020).
3
140 S. Ct. 1731 (2020).
4
Walker v. Azar, 480 F. Supp. 3d 417, 430 (E.D.N.Y. 2020) (“As a result [of the
district court’s injunction], the definitions of ‘on the basis of sex,’ ‘gender identity,’ and
‘sex stereotyping’ currently set forth in 45 C.F.R. § 92.4 will remain in effect. In addition,
the Court preliminarily enjoins the defendants from enforcing the repeal.”); Whitman-
2
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No. 20-10093
administration would apply Bostock’s interpretation of Title VII to other
statutes prohibiting sex discrimination; 5 the Department of Justice issued
guidance specifically instructing federal agencies to apply Bostock’s definition
of sex discrimination to Title IX; 6 and HHS is again considering a new rule. 7
These developments keep us from reaching the merits of this appeal.
Whether the providers are pressing the same claim before us as they did in
the district court is unclear, as are the jurisdictional consequences of the
evolving state of the law. Indeed, the parties cannot even agree on what kind
of relief the district court granted. The Department of Justice simply calls it
a “favorable final judgment;” the ACLU calls it a “declaratory judgment;”
and the providers call it a “vacatur” of some of the 2016 rule’s provisions.
On appeal, the providers argue that the district court should have
granted them injunctive relief against the 2016 rule and the underlying
statute, that they still suffer a substantial threat of irreparable harm under the
2016 rule, and that the subsequent developments have only made it clear that
an injunction should have been granted in the first place. In response, the
Walker Clinic, Inc. v. HHS, 485 F. Supp. 3d 1, 64 (D.D.C. 2020) (“HHS will be
preliminarily enjoined from enforcing the repeal of the 2016 Rule’s definition of
discrimination ‘[o]n the basis of sex’ insofar as it includes ‘discrimination on the basis of
. . . sex stereotyping.’”). The Walker court specifically disagreed with HHS’s assertion
that, after the district court’s judgment in this case, “the sex stereotyping provision ha[s]
no real-world effect.” Walker, 480 F. Supp. 3d at 427 (internal quotation marks and citation
omitted).
5
Exec. Order No. 13,988, 86 Fed. Reg. 7023 (Jan. 20, 2021).
6
Pamela S. Karlan, Principal Deputy Assistant Att’y Gen., U.S. Dep’t of Justice,
C.R. Div., Memorandum re: Application of Bostock v. Clayton County to Title IX of the
Education Amendments of 1972 (Mar. 26, 2021).
7
See Order, Whitman-Walker Clinic, Inc. v. HHS, No. 20-5331 (D.C. Cir. Feb. 18,
2021) (staying the appeal from the preliminary injunction in light of ongoing agency
proceedings).
3
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government contends that the case is moot and that the providers never
asked the district court for relief against the underlying statute. On remand,
the district court should consider these issues, and we express no view as to
their relative merits at this time.
We REMAND for further proceedings. If a party to this case later
files a notice of appeal, the appeal shall return to this panel. 8
8
See, e.g., Dierlam v. Trump, 977 F.3d 471, 479 (5th Cir. 2020).
4