Walking Dead: Obamacare gender identity mandate stalks doctors despite Trump orders, they say

When the Supreme Court agreed to review Idaho's ban on males in girls' sports after transgender athlete Lindsay Hecox got it blocked at both trial and appeals courts, the male track star who competes as a woman tried and failed to dismiss Hecox's own case, which the trial judge deemed "somewhat manipulative" to avoid SCOTUS review. 

A federal judge did the same thing of his own volition in a challenge to the Biden administration's rewrite of "sex" to include "gender identity" in the Affordable Care Act, deeming the case by Florida and the Catholic Medical Association moot despite President Trump's executive orders against gender ideology having no effect on the regulation.

Now the Sunshine State and Catholic physicians are asking the 11th U.S. Circuit Court of Appeals to revive the suit and hear oral argument because the case "presents recurring issues relating to principles of mootness in challenges to executive agency action," which give federal agencies cover to bring back challenged policies when the legal threat has cleared.

It's just the latest awkward example of the Trump administration tacitly protecting its predecessor's policy at odds with President Trump's own executive orders, as it also did by unsuccessfully opposing female prisoners' legal effort to keep male inmates who identify as women out of "female-only privacy area[s]" such as showers and housing.

The Department of Health and Human Services' regulation on Section 1557 of the ACA promptly drew legal challenges when it was finalized a year and half ago, with Republican attorneys general arguing it would "impose a new national standard of care for addressing gender dysphoria" and threaten doctors for asking patients sex-relevant questions.

A federal judge in Mississippi blocked the regulation shortly before it was to come into force, claiming HHS expanded the Supreme Court's Bostock ruling on employment discrimination by gender identity beyond its scope and was owed no leeway by courts under the brand-new SCOTUS ruling eliminating so-called Chevron deference.

The conflation of sex with gender identity goes back to the Obama administration's 2016 regulation, the Biden administration's "refusal to disavow" enforcement of the president's analogous executive order in 2021 when CMA first sued, and HHS's "notice and guidance" on so-called gender affirming care in March 2022, the doctors argued two years ago.

The 2024 regulation, which remains live, creates a regulatory regime "meant to strong-arm funding recipients into allowing males into private female spaces and providing and funding" cross-sex hormones and surgeries "meant to align an individual’s sex characteristics" with subjective gender identity, says the Florida and CMA Nov. 24 opening brief.

Yet nearly a year after blocking the regulation only in Florida, saying it was predictable "we will have another sudden about-face by HHS" if Donald Trump returned to the White House via the 2024 election, U.S. District Judge William Jung "took a strange turn" by writing the regulation out of existence and "bury[ing] this case alive," the plaintiffs say.

The Trump nominee claimed '[t]here is no case or controversy presently pending" and that it was "moot and not capable of repetition within any reasonable time frame," in two "unreasoned" docket entries, as the plaintiffs called them.

If Jung had allowed briefing on mootness, he might have realized "the Final Rule remained fully on the books, Plaintiffs were still threatened with harm, including through potential exposure to civil penalties," and that he could fix the problem by vacating the regulation, blocking HHS enforcement and binding the agency "in subsequent cases," the brief says.

While U.S. District Judge Louis Guirola last month vacated provisions of the regulation that "expand Title IX’s definition of sex discrimination to include gender-identity discrimination," the Republican AGs didn't ask the President George W. Bush nominee to touch its ban on discrimination on the basis of "sex characteristics" and "sex stereotypes." 

Those provisions thus remain binding on Florida and the CMA, and in any case "another district court’s partial vacatur cannot moot this case until it is no longer possible" the decision will be overturned on appeal and because the state and doctors can still get broader relief from Jung, who could have paused the case to manage his "crowded" docket, the plaintiffs argue. 

Repeal 'could take years' and HHS never disavowed regulation

Judges quickly recognized how sweeping the redefinition of sex to include gender identity would be on the American healthcare system at all levels, the brief says.

Section 1557 covers anyone receiving HHS financial assistance, such as through Medicaid and the Children’s Health Insurance Program. These estimated 266,000 entities, from state agencies and health-insurance exchanges to hospitals, physician offices, pharmacies and insurers, accept "an implied right of action" against them for discrimination.

They also face criminal penalties and treble damages for "filing knowingly false assurances" of compliance with HHS regulations and "risk immediate termination" if they refuse to file assurances, the plaintiffs say.

The brief calls Section 1557 "a perfect example" of a "regulatory pendulum" that swings wildly between administrations, with regulatory changes in 2016, 2020 and now 2024 that prompt courts to block everyone's rules at some level, "leaving regulated entities in a fog of uncertainty," as Judge Jung noted.

The first-term Trump administration's repeal of the 2016 rules, followed days later by the Bostock decision that President Biden invoked as the basis of his executive order conflating sex and gender identity, is still in litigation, the plaintiffs noted. A federal judge this summer ruled the legality of the 2020 regulation "remains a live controversy" since the 2024 one is blocked.

Jung gave Florida everything it wanted before the switch in administrations, finding it was likely to succeed because the regulation is "stillborn and a nullity" if Title IX excludes gender identity, which the 11th Circuit has already decided it does, only withholding a nationwide injunction for non-Florida CMA members "for jurisprudential reasons."

When Jung asked for a "short status update" after the 2024 election on how to proceed in light of appeals and the pending second Trump administration, the plaintiffs emphasized the latter "may move to repeal" the 2024 regulation but that "could take years" – itself requiring a regulatory process – and a court could still strike down the repeal.

Trump's executive orders against "gender ideology extremism" and "chemical and surgical castration" for children, and for "biological truth" in federal government, were not followed by HHS proposing repeal of the challenged Section 1557 provisions or a public announcement of "any plans to do so by any date certain," the brief says.

Trump's HHS simply "moved to dismiss its interlocutory appeal" and Jung interpreted CMA's response as dismissing its own cross-appeal, but Jung's April 9 "full closure" order sparked confusion. 

Though HHS agreed Jung's preliminary injunction has "not been dissolved," it claimed the plaintiffs face "no credible threat of enforcement" due to the executive orders, while neither asking Jung to dismiss the case as moot nor saying it planned a repeal, the brief says.

The judge's subsequent docket entries closing the case violated the plaintiffs' due process rights, giving them no notice or "opportunity to be heard," and botched the law by ignoring that he could grant them "effectual relief" as the prevailing parties, Florida and CMA say.