Doctors challenging HHS transgender policy win class certification

Transgender rights activist waves a transgender flag at a rally in Washington Square Park in New York, U.S., May 24, 2019. REUTERS/Demetrius Freeman
  • Doctors claim policy announced last year goes beyond text of the ACA
  • Judge says they can represent class of all providers in U.S. even though some 'may disagree'

(Reuters) - Two Texas doctors can pursue their lawsuit over the Biden administration's announcement last year that federal law bans discrimination in healthcare against transgender people on behalf of a class of all healthcare providers in the U.S., a federal judge has ruled.

U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas, said on Friday that it did not matter if many of those providers disagreed with the lawsuit or even if they would be harmed if it succeeded, rejecting the government's argument that the two doctors, Susan Neese and James Hurly, could not adequately represent the class.

"(T)hat some putative class members may disagree with plaintiffs' aims or beliefs does not defeat the adequacy-of-representation requirement," the judge wrote.

The U.S. Department of Health and Human Services and a lawyer for the doctors did not immediately respond to requests for comment.

The doctors filed their August 2021 lawsuit in response to an announcement by HHS that the agency would interpret Section 1557 of the Affordable Care Act, which prohibits discrimination in healthcare on the basis of sex by providers who receive federal funding, to extend to gender identity.

The plaintiffs said that interpretation went beyond the text of the law. They said they could be at risk of losing funding under the interpretation.

Unlike some previous challengers to the HHS policy, they did not make any claim based on religious liberty, instead saying the interpretation would interfere with their ability to practice medicine.

Neese, an internal medicine specialist, has prescribed hormone therapy for some transgender patients, but does not believe that hormones or surgery are always warranted for any patient who asks for them, and has declined to prescribe hormones or refer patients for surgery in some instances, the complaint says.

Hurly, a pathologist, has encountered situations in his practice where "he must insist that a patient acknowledge his biological sex rather than the gender identity that he asserts," according to the complaint, citing the example of a transgender woman with prostate cancer.

They are asking the court to enter a ruling that Section 1557 does not forbid discrimination on the basis of gender identity.

While the case was pending, a court ruled against the government in a different lawsuit over the same interpretation, issuing a limited injunction applying to the parties in that case. HHS has since announced a notice of proposed rulemaking to finalize its interpretation of Section 1557, which remains in progress.

In opposing class certification, HHS argued that the new proposed rule makes clear that Neese's and Hurly's anticipated conduct would not run afoul of Section 1557. Kacsmaryk, however, said that the proposed rulemaking did not withdraw the original announcement challenged by the plaintiffs.

The case is Neese v. Becerra, U.S. District Court, Northern District of Texas, No. 2:21-cv-00163.

For plaintiffs: Jonathan Mitchell of Mitchell Law

For the government: Jeremy Newman of the U.S. Department of Justice

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Reporting By Brendan Pierson in New York

Our Standards: The Thomson Reuters Trust Principles.

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at