Susan Neese and Jems Hurly v. Xavier Becerra

Dallas, Texas civil rights lawyer represented the Plaintiffs who contested the constitutionality of the Affordable Care Act.



Section 1557 of the Affordable Care Act provides "an individual shall not, on the ground[s] prohibited under” any of four civil rights statutes, "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, ... or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments).” 42U.S.C. § 18116(a) (citing 20 U.S.C. § 1681 et seq., 29 U.S.C. § 794, 42U.S.C. § 2000d et seq., and 42 U.S.C. § 6101 et seq.). In 2020, the Supreme Court decided Bostock v. Clayton County, 140 S.Ct. 1731 (2020). Bostock involved sex-discrimination claims under Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment "because of [an] individual's . .. sex.” 42 U.S.C. § 2000e-2. The Supreme Court held Title VII's prohibition on discrimination "because of' sex prohibits employers from firing or refusing to hire individuals "for being homosexual or transgender.”



On May 10, 2021, Defendant Becerra announced the Department of Health and Human Services ("HHS”) will "interpret and enforce” Section 1557 to prohibit: (1) "discrimination on the basis of sexual orientation”; and (2) "discrimination on the basis of gender identity.” See ECF No. 1-1. Plaintiffs Susan Neese, M.D., and James Hurly, M.D., allege Defendant Becerra's announced interpretation of Section 1557 inflicts immediate, present-day injury on them. ECF No. 11 at 8. This is because they "can only wonder whether they or their practices will lose federal money if they ever refuse to provide gender-affirming care to a transgender patient.” Id. Plaintiffs allege Defendant Becerra's notification is "not in accordance with law” under Section 706(2)(A) of the Administrative Procedure Act because it wrongfully equates discrimination on account of sexual orientation and gender identity with "sex discrimination.” Id. at 10. Plaintiffs also seek declaratory relief under 28 U.S.C. § 2201 and ask the Court to declare Section 1557 does not prohibit discrimination based on sexual orientation and gender identity. Id. Plaintiffs now move this Court to certify a class of all healthcare providers subject to Section 1557 of the Affordable Care Act under Federal Rule of Civil Procedure 23(b)(2).

Dr. Susan Neese and Dr. James Hurly (“Plaintiffs”) brought a pre-

enforcement challenge to the Notification of Interpretation and Enforcement

of Section 1557 of the Affordable Care Act and Title IX of the Education

Amendments of 1972 (“Notification”), which was issued by the Department

of Health and Human Services (“HHS”) in May 2021. The district court

granted summary judgment for Plaintiffs. Because Plaintiffs lack Article III

standing, we VACATE the district court’s judgment and REMAND with

instructions to dismiss Plaintiffs’ claims f