The deadline for the U.S. Justice Department to appeal U.S. District Judge Reed O’Connor’s preliminary injunction was midnight at March 1, but that time has passed and the department hasn’t filed a notice of appeal.
O’Connor’s order bars enforcement of a Department of Health & Human Services regulation against discrimination against women who have had abortions or transgender people in health care, including the refusal of gender reassignment surgery. The regulation is based on Section 1557 of the Affordable Care Act, which prohibits discrimination in health care on the basis of sex.
Instead of appealing the injunction, the Justice Department on Friday sought an extension of the time to answer the complaint as the underlying case proceeds in the district court to “provide opportunity for new leadership at the Department of Health and Human Services to become familiar with the issues in this case.” The deadline for that response was also March 1 at midnight. O’Connor granted the Justice Department’s request Tuesday night, giving the Justice Department until May 2 to respond.
Defying the the broadly accepted interpretation in the courts of “sex” to include transgender people. O’Connor issued the preliminary injunction Dec. 31 as a result of a lawsuit filed by Texas Attorney General Ken Paxton filed the lawsuit against the rule on behalf of eight states, including Texas, Wisconsin, Nebraska, Kentucky and Kansas. The Becket Fund for Religious Liberty was co-counsel in the race and represented religious-affiliated health providers who object to the regulation on religious grounds.
Declining to appeal the order to the U.S. Fifth Circuit of Appeals is consistent with the Justice Department’s recent decision to withdraw a request to halt an order from the same the judge barring enforcement of Obama administration guidance barring schools from refusing to allow transgender kids to use the restroom consistent with their gender identity.
That move from the Justice Department was a precursor to the decision from the Justice and Education Departments ultimately to withdraw the guidance last week with a related case filed by transgender Gavin Grimm pending before the U.S. Supreme Court.
But the Justice Department’s refusal to appeal the order may not be the end of the case or the regulation assuring non-discrimination for transgender people in health care. The American Civil Liberties Union of Texas and River City Gender Alliance have placed a request in with the Fifth Circuit seeking to stay O’Connor’s injunction.
Further, the organizations have sought to intervene in the case with two kinds of intervention under the Federal Rule of Civil Procedure. Intervention as of right and, in the alternative, permissive intervention. On January 24, O’Connor issued an order denying intervention as of right and ordering furthering briefing on permissive intervention.
The ACLU appealed the denial of intervention as of right, so that is currently before the Fifth Circuit. The plaintiffs challenging the regulation have asked the Fifth Circuit to dismiss the appeal. Briefing is complete on permissive intervention, but the district court hasn’t yet issued a ruling.
Even with the injunction on regulation in place, transgender advocates have maintained the underlying prohibition on gender discrimination in the Affordable Care Act is still intact and transgender people can still sue if they feel they’ve experienced discrimination in health care.