Case: 23-10078        Document: 90-1        Page: 1    Date Filed: 12/16/2024




         United States Court of Appeals
              for the Fifth Circuit                                    United States Court of Appeals
                                                                                Fifth Circuit
                               ____________
                                                                              FILED
                                                                       December 16, 2024
                                 No. 23-10078
                               ____________                              Lyle W. Cayce
                                                                              Clerk
Susan Neese; James Hurly,

                                                           Plaintiffs—Appellees,

                                     versus

Xavier Becerra, in his official capacity as Secretary of Health and Human
Services; United States of America,

                                        Defendants—Appellants.
                ______________________________

                Appeal from the United States District Court
                    for the Northern District of Texas
                          USDC No. 2:21-CV-163
                ______________________________

Before Jones, Haynes, and Douglas, Circuit Judges.
Per Curiam:
       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 for lack of jurisdiction.




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                                         No. 23-10078


        The Notification at issue states that “[c]onsistent with the Supreme
Court’s decision in Bostock[ 1] and Title IX, beginning today, OCR will
interpret and enforce Section 1557’s prohibition on discrimination on the
basis of sex[ 2] to include: (1) [d]iscrimination on the basis of sexual
orientation; and (2) discrimination on the basis of gender identity.”
Notification of Interpretation and Enforcement of Section 1557 of the
Affordable Care Act and Title IX of the Education Amendments of 1972, 

, 27985 (May 25, 2021) (to be codified at 45 C.F.R. pts. 86,
92). Plaintiffs filed this case in August 2021 to challenge the Notification.
        Both Plaintiffs are doctors in Amarillo, Texas. Dr. Neese practices
general internal medicine for patients from age 16 to 105 years old. Dr. Hurly
is a pathologist who diagnoses patients based on laboratory analyses. They
both claim to be “unwilling to provide gender-affirming care, in at least some
situations, to patients who assert a gender identity that departs from their
biological sex.” 3 For Dr. Neese, these situations include: (1) her categorical
unwillingness to assist minors with transitioning or prescribe them puberty
blockers or hormone therapy (which she explained is not within her medical
specialty); and (2) her insistence that transgender patients or patients with
gender dysphoria obtain preventive care consistent with their biological sex,
such as a biological female who identifies as a man (but whose body remains
female) undergoing a pelvic examination to check for cervical or ovarian
cancer. For Dr. Hurly, these situations include informing a biological male
who identifies as a woman of her prostate cancer diagnosis and need for


        _____________________
        1
            Bostock v. Clayton Cnty., 

 (2020).
        2
            See 

(a); 

(a).
        3
          The parties agree that Plaintiffs only assert an injury caused by the portion of the
Notification that prohibits discrimination based on gender orientation.




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                                  No. 23-10078


treatment. Put another way, the doctors want to be sure that the physical
bodies of their patients are cared for properly.
       Neither Plaintiff believes that their medical practices constitute
gender-identity discrimination. However, they are fearful that HHS will
view their practices as violating the Notification. Plaintiffs fear that HHS will
bring an enforcement proceeding against them and terminate their federal
funding if they do not “provide everything a transgender patient might
demand” (even if it is not doable in their body) or “unconditionally play
along with a patient’s asserted gender identity.” The Government disagrees
with the assertion that it would prosecute a doctor who, under the
circumstances presented in this case, treated a biological male or female
according to the medical needs of the physical body.
       We always have jurisdiction to determine jurisdiction. United States
v. Ruiz, 

 (2002). Questions of standing are reviewed de
novo. N.A.A.C.P. v. City of Kyle, 

 (5th Cir. 2010). In order
to have standing, a plaintiff must have suffered an injury that is “concrete
and particularized” and “actual or imminent, not conjectural or
hypothetical.” Lujan v. Defs. of Wildlife, 

 (1992) (quotation
omitted). The right to pre-enforcement review is qualified and permitted
only “under circumstances that render the threatened enforcement
sufficiently imminent.” Susan B. Anthony List v. Driehaus, 

, 159
(2014); see Whole Woman’s Health v. Jackson, 

, 49 (2021).
       Plaintiffs have not met their burden to establish standing in this case
because they have not shown how their conduct constitutes gender-identity
discrimination under any plausible reading of the Notification. Plaintiffs
themselves do not view their conduct as gender-identity discrimination, nor
do they offer any evidence that HHS will view it as such. They have valid,
non-discriminatory reasons for their medical practices, including that acting




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                                      No. 23-10078


otherwise would be malpractice or would require them to provide services
outside of their specialty areas. Lastly, their current practices have not been
chilled or otherwise affected, and there is no evidence that an enforcement
proceeding is imminent. Cf. Braidwood Mgmt. Inc. v. EEOC, 

,
929 & n.27 (5th Cir. 2023) (holding plaintiffs had standing to bring pre-
enforcement challenge where the EEOC previously brought an enforcement
action under similar circumstances).
        Plaintiffs have thus failed to show that they are actually violating the
Notification, much less that they face a credible threat of enforcement. They
therefore do not have standing. 4 Accordingly, we VACATE the district
court’s judgment and REMAND with instructions to dismiss Plaintiffs’
claims for lack of jurisdiction.




        _____________________
        4
          Among other things, the Government challenged the district court’s conclusion
that the Notification was a final agency action and that Bostock, 

, where
the Supreme Court held that Title VII’s ban on discrimination “because of . . . sex”
prohibits an employer from firing an employee because that employee is homosexual or
transgender, does not apply to Title IX or § 1557 of the Affordable Care Act. Because we
conclude Plaintiffs lack standing, we do not reach the other issues raised in this appeal.




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                                    23-10078


Edith Hollan Jones, concurring:
       Based on representations by counsel for the government during oral
argument and in brief, I concur in dismissing plaintiffs’ case for lack of Art.
III standing. I agree with the majority’s conclusions that the plaintiffs “do
not view their conduct as gender-identity discrimination” because each of
them treats patients who “identify” as members of the opposite sex.
Further, as we hold, “[t]hey have valid, non-discriminatory reasons for their
medical practices.” I would add that the government readily affirms the
plaintiffs are not facing any “credible threat” of prosecution for treating
biological men or women according to their physical characteristics. See
Whole Woman’s Health v. Jackson, 

 (2021). Nor do they
face any credible threat of prosecution for failing to treat patients inconsistent
with their medical training and practice specialties.
       Specifically, HHS judicially admits and confirmed at oral argument
that “[P]laintiffs do not explain how a medical provider’s care based on a
transgender patient’s physiological sex characteristics could be considered
gender-identity discrimination, and HHS has never taken the position that
such conduct constitutes gender-identity discrimination.” HHS further
acknowledges that the proposed rule interpreting section 1557 [the rule was
stayed before it took effect] would not “’prohibit a covered entity from
treating an individual for conditions that may be specific to their sex
characteristics,’ such as treating a transgender man with a pregnancy test.”
[citing 87 Fed. Reg. at 47,866]. HHS also reaffirmed at oral argument that
“nothing in Section 1557 has ever been taken to mean that a physician must
provide services outside their [sic] area of specialty.” In sum, nothing in the
briefing or argument by HHS implies that the plaintiffs faced a credible threat
of investigation or losing federal funds based on their described medical
practices.




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