Case: 20-10093 Document: 00515822785 Page: 1 Date Filed: 04/15/2021
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`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 20-10093
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`Franciscan Alliance, Incorporated; Christian Medical
`and Dental Society; Specialty Physicians of Illinois,
`L.L.C.,
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`April 15, 2021
`
`Lyle W. Cayce
`Clerk
`
`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
`
`
`
`
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`

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`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`repealed the 2016 rule and finalized a new rule in 2020;2 the Supreme Court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-
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`2
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`Case: 20-10093 Document: 00515822785 Page: 3 Date Filed: 04/15/2021
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`No. 20-10093
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`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
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`
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`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).
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`3
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`Case: 20-10093 Document: 00515822785 Page: 4 Date Filed: 04/15/2021
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`No. 20-10093
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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
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`8 See, e.g., Dierlam v. Trump, 977 F.3d 471, 479 (5th Cir. 2020).
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`4
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