IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TENNESSEE
`AT CHATTANOOGA
`
`AMERICAN COLLEGE OF
`PEDIATRICIANS, on behalf of its
`members;
`CATHOLIC MEDICAL ASSOCIATION,
`on behalf of its members; and
`JEANIE DASSOW, M.D.,
`
`Civil Action No. 1:21-cv-195
`
`Plaintiffs,
`
`COMPLAINT
`
`v.
`
`XAVIER BECERRA, in his official capacity
`as Secretary of the United States Department
`of Health and Human Services; UNITED
`STATES DEPARTMENT OF HEALTH
`AND HUMAN SERVICES; ROBINSUE
`FROHBOESE, in her official capacity as
`Acting Director and Principal Deputy of the
`Office for Civil Rights of the U.S. Department
`of Health and Human Services; and OFFICE
`FOR CIVIL RIGHTS OF THE U.S.
`DEPARTMENT OF HEALTH AND
`HUMAN SERVICES,
`
`Jury Trial Demanded
`
`Defendants.
`
`PLAINTIFFS’ COMPLAINT
`
`Plaintiff American College of Pediatricians, on behalf of its members; Plaintiff
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`Catholic Medical Association, on behalf of its members; and Plaintiff Jeanie Dassow,
`
`M.D. (collectively, Plaintiffs), for the complaint against Defendants, state as follows:
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`INTRODUCTION
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`1. This case challenges whether the federal government can make medical
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`doctors perform gender-transition surgeries, prescribe gender-transition drugs, and
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`speak and write about patients according to gender identity, rather than biological
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`reality—regardless of doctors’ medical judgment or conscientious objections.
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`2. The U.S. Department of Health and Human Services (HHS) has re-
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`interpreted Section 1557 of the Affordable Care Act (ACA), which prohibits sex
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`discrimination, to require doctors to perform such interventions by prohibiting
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`discrimination on the basis of gender identity. Under the government’s
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`overreaching interpretation, doctors now face an untenable choice: either act
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`against their medical judgment and deeply held convictions by performing
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`controversial and often medically dangerous gender-transition interventions, or
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`succumb to huge financial penalties, lose participation in Medicaid and other
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`federal funding, and, as a practical matter, lose the ability to practice medicine in
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`virtually any setting.
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`3. Federal statutes do not support the imposition of this gender identity
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`mandate. As a result, the mandate violates the Administrative Procedure Act, and
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`is also a violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1,
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`the First Amendment’s Free Speech and Free Exercise of Religion Clauses, and
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`other constitutional doctrines.
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`4. Plaintiffs are two medical associations, which together represent three
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`thousand physicians and health professionals, and one medical doctor in
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`Chattanooga, Tennessee. Unless the court issues injunctive and declaratory relief
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`halting this mandate, they will incur irreparable harm to their practices. Two
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`courts have already recognized that this mandate is illegal and enjoined it in favor
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`of plaintiffs in those cases. Franciscan Alliance, Inc. v. Becerra, No. 7:16-cv-00108-O
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`2021 WL 3492338 (N.D. Tex. Aug. 9, 2021); Religious Sisters of Mercy v. Azar, 513
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`F. Supp. 3d 1113, 1139 (D.N.D. 2021). But both injunctions protect only the
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`plaintiffs in those cases, not the plaintiffs or their members here. Therefore a
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`preliminary and permanent injunction under the Administrative Procedure Act and
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`the Religious Freedom Restoration Act are needed to shield Plaintiffs from the
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`federal government’s crippling penalties that threaten to drive thousands of doctors
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`out of practice.
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`JURISDICTION & VENUE
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`5. This Court has subject-matter jurisdiction under 28 U.S.C. § 1331 because
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`this action arises under the U.S. Constitution and federal law.
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`6. This Court also has jurisdiction under 28 U.S.C. § 1346(a) because this is a
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`civil action against the United States.
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`7. Additionally, this Court has jurisdiction under 28 U.S.C. § 1361 to compel
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`an officer of the United States or any federal agency to perform his or her duty.
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`8. This Court has jurisdiction to review Defendants’ unlawful actions and
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`enter appropriate relief under the APA, 5 U.S.C. §§ 553, 701–706, and the
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`Regulatory Flexibility Act, 5 U.S.C. § 611.
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`9. This Court has inherent jurisdiction to review and enjoin ultra vires or
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`unconstitutional agency action through an equitable cause of action. Larson v.
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`Domestic & Foreign Com. Corp., 337 U.S. 682, 689–71 (1949).
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`10. This case seeks declaratory and other appropriate relief under the
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`Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, 5 U.S.C. § 705 & 706, Federal
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`Rule of Civil Procedure 57, and the Court’s inherent equitable powers.
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`11. This Court may award costs and attorneys’ fees under the Religious
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`Freedom Restoration Act, 42 U.S.C. 1988(b) and the Equal Access to Justice Act, 28
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`U.S.C. § 2412.
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`12. Venue is proper in this Court under 28 U.S.C. § 1391 because a substantial
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`part of the events or omissions giving rise to the claims occurred in this district, and
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`a substantial part of property that is the subject of the action is situated here,
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`because this district is where Plaintiffs American College of Pediatricians and Dr.
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`Jeanie Dassow are situated and are regulated by Defendants’ actions. Defendants
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`are United States agencies or officers sued in their official capacities. A substantial
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`part of the events or omissions giving rise to the Complaint occur within the
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`Eastern District of Tennessee.
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`PARTIES
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`I.
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`American College of Pediatricians (ACPeds)
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`13. Plaintiff American College of Pediatricians (ACPeds) is a national
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`organization of pediatricians and other healthcare professionals.
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`14. ACPeds is a nonprofit organization founded in 2002, incorporated in the
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`State of Tennessee, and has its registered agent in Tennessee.
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`15. ACPeds has members in Tennessee.
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`16. Most ACPeds members provide medical care in health programs and
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`activities receiving federal financial assistance under 42 U.S.C. § 18116.
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`17. ACPeds seeks relief on behalf of its current and future members.
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`II. Catholic Medical Association
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`18. Plaintiff the Catholic Medical Association (CMA) is the largest association
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`of Catholic individuals in healthcare.
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`19. CMA is a nonprofit organization incorporated in Virginia, and its
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`registered agent is in Virginia.
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`20. CMA has three member guilds in Tennessee: in Clarksville, the
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`Immaculate Conception Catholic Medical Guild; in Memphis, the Catholic Medical
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`Association of Memphis Guild; and in Nashville, the Nashville Guild. It hosted its
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`annual national conference in 2019 in Nashville.
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`21. CMA has individual members in Tennessee.
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`22. Most CMA members provide medical care in health programs and
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`activities receiving federal financial assistance under 42 U.S.C. § 18116.
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`23. CMA seeks relief on behalf of its current and future members.
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`III. Jeanie Dassow, M.D.
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`24. Plaintiff Jeanie Dassow, M.D., is a board-certified obstetrician and
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`gynecologist in Chattanooga, Tennessee.
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`25. Dr. Dassow serves as the Clerkship Director and Assistant Professor of
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`Obstetrics and Gynecology at the University of Tennessee Chattanooga – College of
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`Medicine.
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`26. Dr. Dassow practices medicine in Chattanooga at UT Erlanger Women’s
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`Health, a medical clinic, and also travels to rural clinics to treat patients.
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`27. Dr. Dassow provides medical care in health programs and activities
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`receiving federal financial assistance under 42 U.S.C. § 18116.
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`IV. Defendants
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`28. Defendant Xavier Becerra is the Secretary of the U.S. Department of
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`Health and Human Services. Defendant Becerra is sued in his official capacity.
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`Defendant Becerra is responsible for the overall operations of HHS, including the
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`Department’s administration of Section 1557 of the ACA. E.g., 42 U.S.C. § 18116.
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`His address is 200 Independence Ave SW, Washington, DC 20201.
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`29. Defendant U.S. Department of Health and Human Services (HHS) is a
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`federal cabinet agency within the executive branch of the U.S. government and is
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`an agency under 5 U.S.C. § 551 and 701(b)(1). Its address is 200 Independence Ave
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`SW, Washington, DC 20201. HHS is responsible for implementing and enforcing 42
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`U.S.C. § 18116.
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`30. Defendant Robinsue Frohboese is the Acting Director and Principal Deputy
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`for the Office for Civil Rights (OCR) at the U.S. Department of Health and Human
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`Services. As head of OCR, Defendant Frohboese is responsible for enforcing 42
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`U.S.C. § 18116 on behalf of HHS. Her address is 200 Independence Ave SW,
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`Washington, DC 20201.
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`31. Defendant the Office for Civil Rights is a component of the U.S.
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`Department of Health and Human Services. Its address is 200 Independence Ave
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`SW, Washington, DC 20201. OCR is responsible for implementing and enforcing 42
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`U.S.C. § 18116 on behalf of HHS.
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`FACTUAL ALLEGATIONS
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`I.
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`Section 1557 of the Affordable Care Act
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`32. Section 1557 of the Affordable Care Act (ACA), 42 U.S.C. § 18116, states in
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`paragraph (a) that: “Except as otherwise provided for in this title (or an amendment
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`made by this title), an individual shall not, on the ground prohibited under title VI
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`of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education
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`Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975
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`(42 U.S.C. 6101 et seq.), or section 794 of title 29, be excluded from participation in,
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`be denied the benefits of, or be subjected to discrimination under, any health
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`program or activity, any part of which is receiving Federal financial assistance,
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`including credits, subsidies, or contracts of insurance, or under any program or
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`activity that is administered by an Executive Agency or any entity established
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`under this title (or amendments). The enforcement mechanisms provided for and
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`available under such title VI, title IX, section 794, or such Age Discrimination Act
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`shall apply for purposes of violations of this subsection.”
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`33. Paragraph (c) of Section 1557 states, “The Secretary may promulgate
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`regulations to implement this section.”
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`34. Among the statutes cited in Section 1557, the only one that prohibits
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`discrimination on the basis of sex is Title IX of the Education Amendments of 1972
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`(Title IX).
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`35. Title IX states, inter alia, that “[N]o person in the United States shall, on
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`the basis of sex, be excluded from participation in, be denied the benefits of, or be
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`subjected to discrimination under any education program or activity receiving
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`Federal financial assistance.” 20 U.S.C. § 1681.
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`36. Title IX states it does not apply to covered entities “controlled by a
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`religious organization if the application of this subsection would not be consistent
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`with the religious tenets of such organization.” 20 U.S.C. § 1681(a)(3).
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`37. Title IX states it cannot be construed to require any person or entity to
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`“provide or pay for any benefit or service, including the use of facilities, related to
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`an abortion.” 20 U.S.C. § 1688.
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`38. To the extent an action is encompassed by the religious exemption or
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`abortion neutrality language in Title IX, it is not prohibited under the sex
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`discrimination ban of Section 1557.
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`39. Many provisions in the ACA show that Congress understood “sex” to mean
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`the biological binary of male and female, and not to encompass the concept of
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`gender identity. See, e.g., 124 Stat. at 261, 334, 343, 551, 577, 650, 670, 785, 809,
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`873, 890, 966. For example, the ACA requires the provision of “information to
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`women and health care providers on those areas in which differences between men
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`and women exist.” Id. at 536–37.
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`40. Likewise, language throughout Title IX reflects that Congress understood
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`“sex” as a biological binary and not as including gender identity. See, e.g., 20 U.S.C.
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`§§ 1681(a)(2); 1681(a)(8), 1686.
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`II. Effects of the 2016 Rule
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`41. In 2016, HHS used its rulemaking authority under Section 1557 to
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`promulgate a final rule entitled Nondiscrimination in Health Programs and
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`Activities, 81 Fed. Reg. 31,375 (May 18, 2016) (codified at 45 C.F.R. pt. 92) (referred
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`to here as the 2016 Rule).
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`42. The 2016 Rule interpreted discrimination “on the basis of sex” to include
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`discrimination on the basis of gender identity and sex stereotypes, and its preamble
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`specified multiple ways by which this meant the rule would require medical
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`providers to offer gender identity interventions and procedures, and to engage in
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`speech affirming gender identities and transitions. 81 Fed. Reg. at 31,467, 31,468
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`(45 C.F.R. § 92.4).
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`43. The 2016 Rule forbade “discrimination” based on “gender identity,” which
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`HHS defined to mean an individual’s “internal sense of gender, which may be male,
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`female, neither, or a combination of male and female.” Id. HHS said that, “The way
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`an individual expresses gender identity is frequently called ‘gender expression,’ and
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`may or may not conform to social stereotypes associated with a particular gender.”
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`Id. The “gender identity spectrum includes an array of possible gender identities
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`beyond male and female,” and individuals with “non-binary gender identities are
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`protected under the rule.” Id. at 31,375, 31,392, 31,384. The 2016 Rule mandated
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`that “a covered entity shall treat individuals consistent with their gender identity.”
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`Id. at 31,471 (formerly codified at 45 C.F.R. § 92.206).
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`Mandatory Gender Interventions
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`44. The 2016 Rule states, in the context of physicians offering “health services”
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`or medical advice, that a “categorization of all transition-related treatment, for
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`example as experimental, is outdated and not based on current standards of care.”
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`81 Fed. Reg. at 31,435; see also id. at 31,429. The 2016 Rule also relies for the
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`applicable standard of care upon a transgender advocacy group’s document, which
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`states that “Mental health professionals should not impose a binary view of gender.”
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`Id. at 31,406 n.263 (citing World Professional Association for Transgender Health
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`(WPATH), Standards of Care for the Health of Transsexual, Transgender, and
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`Gender-Nonconforming People at 16 (7th ed. 2012)).
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`45. The 2016 Rule required doctors to perform (or refer for) sex or gender-
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`transition procedures, including hysterectomies, mastectomies, hormones, drugs,
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`and plastic surgery, if the doctor performs analogous services in other, non-
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`transition medical practices, for example, to biological females seeking cancer
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`treatment. Id. at 31,455.
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`46. The 2016 Rule provides, “A provider specializing in gynecological services
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`that previously declined to provide a medically necessary hysterectomy for a
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`transgender man would have to revise its policy to provide the procedure for
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`transgender individuals in the same manner it provides the procedure for other
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`individuals.” 81 Fed. Reg. at 31,445. HHS also explained such procedures would be
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`“medically necessary to treat gender dysphoria” and would be required even if they
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`were not “strictly identified as medically necessary or appropriate.” Id. at 31,429.
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`47. Under the 2016 Rule, many providers thus would have to perform
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`hysterectomies, even if the provider sincerely believed such a procedure would not
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`be in the patients’ best interest or if doing so conflicted with the providers’ religious
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`beliefs.
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`Requirements to Offer and Recommend Gender Interventions
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`48. Under the 2016 Rule, a doctor must advise patients about these procedures
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`in ways that suggest they are appropriate for gender dysphoria and may not deter
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`patients away from them.
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`49. The 2016 Rule similarly requires a provider to prescribe, offer to prescribe,
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`or refer for puberty blocking drugs and cross-sex hormones to patients with gender
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`dysphoria.
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`50. The 2016 Rule requires that providers not raise concerns about gender-
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`transition regret or about permanent, irreversible damage, and instead, requires
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`them to affirm patients’ state gender identities and to provide gender-transition
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`interventions on demand.
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`51. The 2016 Rule compels doctors to say that transition-related procedures
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`and interventions are medically necessary and appropriate. 81 Fed. Reg. at 31,429.
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`Under the 2016 Rule, healthcare providers may not offer a view contrary to HHS in
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`their medical advice to patients, or even to other healthcare providers in their
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`practices or at medical conferences.
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`52. The 2016 Rule bans a policy, procedure, and practice of not performing,
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`offering, or referring these interventions.
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`53. The 2016 Rule mandates revisions to healthcare professionals’ written
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`policies, censoring speech declining to provide transition-related interventions and
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`requiring policies to expressly affirm that transition-related procedures will be
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`provided. 81 Fed. Reg. at 31,455.
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`54. The 2016 Rule not only requires providers to perform these interventions
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`but to offer them or provide them whether or not requests have been made.
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`55. And the 2016 Rule requires providers to amend their written policies to
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`expressly endorse gender-transition procedures, even if these policies would not
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`reflect their medical judgment or ethical, conscientious, and religious positions. Id.
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`at 31,455.
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`56. The 2016 Rule requires that covered entities, “as a condition of any
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`application for Federal financial assistance, submit an assurance, on a form
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`specified by the Director of the Department’s Office for Civil Rights, that the
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`entity’s health programs or activities will be operated in compliance with section
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`1557 and this part,” meaning the HHS regulations including the operative portions
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`of the 2016 Rule. 45 C.F.R. § 92.4(a); 81 Fed. Reg. at 31,392, 31,442.
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`57. Covered entities must post notices about compliance with the 2016 Rule in
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`conspicuous locations, and HHS provided a sample notice to be posted. 81 Fed. Reg.
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`at 31,472, 45 C.F.R. § 92, App. A.1
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`58. The 2016 Rule incorporates these requirements into the HHS-690 Form,
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`which references Section 1557, through which a covered entity must certify that “no
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`person in the United States shall, on the ground of race, color, national origin, sex,
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`age, or disability be excluded from participation in, be denied the benefits of, or be
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`1 https://www.federalregister.gov/articles/2016/05/18/2016-11458/nondiscrimination-in-health-
`programs-and-activities#h-139.
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`subjected to discrimination under any health program or activity for which the
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`Applicant receives Federal financial assistance from the Department.”2
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`59. OCR can also demand that covered entities record and submit compliance
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`reports. 81 Fed. Reg. at 31,439, 31,472.
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`Compelled Speech Affirming Gender Identity as Sex
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`60. The 2016 Rule requires providers to use gender-transition affirming
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`language in all situations, regardless of circumstance. Id. at 31,406.
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`61. HHS also requires a patient to be treated and spoken about according to
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`the person’s stated gender identity, including use of the person’s preferred
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`pronouns, and it prohibits using pronouns and other sex-specific language reflecting
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`biological and medical reality. The 2016 Rule said, “refusal to use a transgender
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`individual’s preferred name and pronoun and insistence on using those
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`corresponding to the individual’s sex assigned at birth constitutes illegal sex
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`discrimination if such conduct is sufficiently serious to create a hostile
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`environment.” Id.
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`62. The 2016 Rule requires healthcare providers to use documentary codes and
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`make medical records consistent with a patient’s gender identity even if it differs
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`from a patient’s biological sex.
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`63. The 2016 Rule punishes healthcare providers for expressing to patients or
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`to fellow healthcare providers their medical, ethical, or religious views concerning
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`gender identity, gender-transition interventions, or biological differences between
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`men and women. This could include the provision of books, pamphlets, or other
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`written materials, or the posting of messages or pictures, alleged to contribute to a
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`hostile environment.
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`2 HHS, OCR, Assurance of Compliance, https://ocrportal.hhs.gov/ocr/aoc/instruction.jsf (last visited
`Aug. 23, 2021).
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`64. Under the 2016 Rule, a medical provider’s objection to referring a patient
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`for a procedure for gender-transition purposes would constitute unlawful
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`discrimination.
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`Prohibition on Single-Sex Programs and Facilities
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`65. The 2016 Rule prohibits single-sex spaces, such as single-sex medical
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`rooms and single-sex restrooms or communal shower rooms unless access is allowed
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`based on a person’s stated gender identity, even when that identity does not align
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`with the person’s biological sex.
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`66. The 2016 Rule directs that any “shower facilities” offered by providers may
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`not exclude anyone “based on their gender identity.” 81 Fed. Reg. at 31,409.
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`67. HHS denied that any “legal right to privacy” could be violated “simply by
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`permitting another person access to a sex-specific program or facility which
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`corresponds to their gender identity.” Id.
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`68. The 2016 Rule required sex-specific health programs to admit patients
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`based on gender identity. It stated that sex-specific health programs or activities
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`are unlawful unless a covered entity can “supply objective evidence, and empirical
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`data if available, to justify the need to restrict participation in the program to only
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`one sex,” and in “no case will [HHS] accept a justification that relies on overly broad
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`generalizations about the sexes. Id.
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`Mandatory Insurance Coverage for Gender Interventions
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`69. The 2016 Rule also requires health insurance plans provided by covered
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`entities to pay for and cover gender-transition interventions.
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`70. The 2016 Rule applies to health insurance plans for employees of HHS-
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`funded entities providing health services, such as hospitals and doctors’ offices, as
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`well as other health programs or activities funded by HHS. 81 Fed. Reg. at 31,437,
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`31,472 (45 C.F.R. § 92.208).
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`71. The 2016 Rule prohibits insurers, on the basis of gender identity, from
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`denying, limiting, or refusing to issue insurance plans or policies; denying or
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`limiting coverage, or imposing additional cost sharing or other limitations on
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`coverage; maintaining “discriminatory” marketing practices or benefit designs; and
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`denying or limiting coverage to transgender people both for routine and transition-
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`related healthcare. 81 Fed. Reg. at 31,471–72 (45 C.F.R. § 92.207).
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`72. The 2016 Rule required that a covered entity apply “neutral,
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`nondiscriminatory criteria that it uses for other conditions when the coverage
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`determination is related to gender transition” and “decline[s] to limit application of
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`the rule by specifying that coverage for the health services addressed in
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`§ 92.207(b)(3)–(5) must be provided only when the services are medically necessary
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`or medically appropriate.” 81 Fed. Reg. at 31,435. It refused to allow a healthcare
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`provider to decide whether such services are “medically necessary” or “medically
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`appropriate” in their professional opinion. Id. at 31,429, 31,435.
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`73. The 2016 Rule stated that the “explicit, categorical (or automatic) exclusion
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`or limitation of coverage for all health services related to gender transition is
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`unlawful on its face.” 81 Fed. Reg. at 31,429, 31,472 (45 C.F.R. § 92.207(b)(4)). Such
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`an exclusion is deemed “discriminatory on its face.” 81 Fed. Reg. at 31,456. It also
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`prohibited denying or limiting care or coverage for a transgender person for “health
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`services that are ordinarily or exclusively available to individuals of one sex.” 81
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`Fed. Reg. at 31,471 (45 C.F.R. § 92.206). Such “exclusions of coverage for all care
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`related to gender dysphoria or associated with gender transition” were “outdated
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`and not based on current standards of care.” 81 Fed. Reg. at 31,429.
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`74. The “range of transition-related services, which includes treatment for
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`gender dysphoria, is not limited to surgical treatments and may include, but is not
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`limited to, services such as hormone therapy and psychotherapy, which may occur
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`over the lifetime of the individual.” Id. at 31,435–36.
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`75. The 2016 Rule also provided for liability in any of these areas on theories
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`of harassment, hostile environment, and disparate impact. See, e.g., id. at 31,470
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`(45 C.F.R. § 92.101(b)(3)(ii)).
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`III. Current status of gender identity under HHS’s 1557 Rule
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`76. In December 2016, a district court held under the Administrative
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`Procedure Act that HHS lacked statutory authority under Section 1557 and Title IX
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`to prohibit discrimination on the basis of gender identity in its 2016 Rule, and that
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`religious healthcare providers had a substantial likelihood of success against that
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`mandate under the Religious Freedom Restoration Act. Franciscan Alliance, Inc. v.
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`Burwell, 227 F. Supp. 3d 660, 695–96 (N.D. Tex. 2016).
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`77. In October 2019, the court issued final judgment declaring that the 2016
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`Rule violated the APA and RFRA, vacating the gender identity language (and other
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`termination of pregnancy language) from the 2016 Rule, and remanding the
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`rulemaking to HHS. Franciscan Alliance, Inc. v. Burwell, 414 F. Supp. 3d 928, 945
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`(N.D. Tex. 2019).
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`78. In 2020, HHS issued a final rule substantially revising the 2016 Rule,
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`removing its gender identity language and stating that HHS interprets Section
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`1557 and Title IX to not prohibit discrimination on the basis of gender identity.
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`Nondiscrimination in Health and Health Education Programs or Activities,
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`Delegation of Authority.” 85 Fed. Reg. 37,160 (June 19, 2020) (to amend and be
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`codified at 45 C.F.R. pt. 92) (the “2020 Rule”).
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`79. The 2020 Rule stated that the 2016 Final Rule “exceeded its authority
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`under Section 1557, adopted erroneous and inconsistent interpretations of civil
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`rights law, caused confusion, and imposed unjustified and unnecessary costs.” Id. at
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`27,849. In particular, HHS stated that its prior position declining to provide these
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`procedures or interventions is “‘outdated and not based on current standards of
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`care’” was “erroneous” and lacked a “scientific and medical consensus to support” it.
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`Id. at 37,187 (quoting 81 Fed. Reg. at 31,429).
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`80. Two courts, however, issued injunctions declaring that the gender identity
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`language from the 2016 rule would remain in effect, and one of those courts also
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`blocked HHS from putting the Title IX religious exemption language in HHS’s 1557
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`regulations. Walker v. Azar, 480 F. Supp. 3d 417 (E.D.N.Y. 2020), modified by 2020
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`WL 6363970 (E.D.N.Y. Oct. 29, 2020); Whitman-Walker Clinic, Inc. v. HHS, 485 F.
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`Supp. 3d 1 (D.D.C. 2020).
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`81. As the result of Walker and Whitman-Walker Clinic, the 2016 Rule’s
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`gender identity language, and the implications of that language described in the
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`2016 Rule’s preamble, remain in effect.
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`82. Specifically, the following requirements of the 2016 Rule are in effect:
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`a. The 2016 Rule’s definition of the term sex to include “gender identity”
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`which in turn includes an individual’s “internal sense of gender”
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`among other things;
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`b. The 2016 Rule’s expansive definition of sex stereotyping to include
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`gender identity discrimination;
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`c. The 2016 Rule’s application of harassment, hostile environment, and
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`disparate impact liability to gender identity discrimination;
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`d. The 2016 Rule’s recognition of a gender identity spectrum in enforcing
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`discrimination prohibitions;
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`e. The 2016 Rule’s requirement to treat individuals consistent with their
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`gender identity,
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`f. The 2016 Rule’s prohibition on denying or limiting health services that
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`are ordinarily or exclusively available to individuals of one sex, to a
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`transgender individual because the individual’s “sex assigned at birth,”
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`gender identity, or gender otherwise recorded differs from the one to
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`which the health services are ordinarily or exclusively available;
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`g. The 2016 Rule’s forced provision of sex transition surgery, sex
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`transition hormones, puberty blockers, and other gender interventions;
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`h. The 2016 Rule’s censorship of healthcare concerns involving gender-
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`transition regret;
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`i. The 2016 Rule’s ban on a policy, procedure, and practice of not offering
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`to perform these procedures, prescribe these drugs, and conduct these
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`interventions;
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`j. The 2016 Rule’s requirements that covered entities modify their
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`policies, create compliance reports, provide the government assurances
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`of compliance and post notices of compliance in prominent physical
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`locations, 81 Fed. Reg. at 31,439, 31,472, 45 C.F.R. § 92.301;
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`k. The 2016 Rule’s speech mandates that providers treat patients by
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`gender identity, express views on gender procedures or interventions
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`that they do not share, refer to gender as non-binary and on a
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`spectrum, and use gender-affirming language, including the use of
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`preferred pronouns (as well as the 2016 Rule’s censorship of any
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`contrary forms of speech or beliefs);
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`l. The 2016 Rule’s mandate that providers create inaccurate and
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`dangerous documentary codes and medical records;
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`m. The 2016 Rule’s referral mandate;
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`n. The 2016 Rule’s bar on sex-separate facilities and programs, such as
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`showers, support groups, and other intimate areas;
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`o. The 2016 Rule’s requirements for health insurance coverage by
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`healthcare employers to pay for gender interventions; and
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`p. The 2016 Rule’s lack of incorporation of the religious exemption from
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`Title IX (formerly codified at 45 C.F.R. § 92.6(b)).
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`83. In the gender identity mandate, Defendants are imposing not merely a
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`rule, under which male treatments, if provided, must be given on demand to
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`females, and vice versa, but also a freestanding principle under which any objection
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`to providing, offering, referring for, or affirming gender-transition interventions
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`would be deemed gender identity “discrimination” in itself or by its effects.
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`84. On January 20, 2021, immediately upon taking office, President Biden
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`signed an executive order requiring that Section 1557 and Title IX be interpreted to
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`include gender identity as a protected trait.3
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`85. On May 10, 2021, HHS announced that its Office for Civil Rights (OCR)
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`“will interpret and enforce Section 1557’s prohibition on discrimination on the basis
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`of sex to include: (1) Discrimination on the basis of sexual orientation; and (2)
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`discrimination on the basis gender identity.” 86 Fed. Reg. 27,984, 27,985 (May 25,
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`2021) (May 10, 2021 Notice of Enforcement).
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`86. OCR also announced on the same day that it interprets the term sex in
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`Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681, to
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`include gender identity.4
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`87. Regarding Section 1557, HHS stated its enforcement activity would comply
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`with RFRA “and all other legal requirements,” including the various district court
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`injunctions related to Section 1557 regulations, but it did not specify how this
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`compliance would occur. 86 Fed. Reg. at 27,985.
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`3 Executive Order 13,988, Preventing and Combating Discrimination on the Basis of Gender Identity
`or Sexual Orientation, 86 Fed. Reg. 7023 (Jan. 20, 2021).
`4 Press Release, HHS OCR, HHS Announces Prohibition o