ith the main action but does not require the disposition of each as a whole.” A party seeking
permissive intervention must establish three elements: “(1) timeliness, (2) an interest in the
subject matter of the litigation, and (3) a basis for granting the motion that is recognized by
Rule 24(b).” Wal-Mart Stores, Inc., 834 F.3d at 567 (quoting In re Air Crash Disaster at Dallas/Fort
Worth Int’l Airport, 190 F.R.D. 363, 366 (N.D. Tex. 1999)). “The decision to grant or deny a
motion for permissive intervention is within the sound discretion of the district court.” Id. (citing
Espy, 18 F.3d at 1207).
III.
ANALYSIS
A.
Putative Intervenors’ Motion to Intervene as of Right
The Court first addresses Putative Intervenors’ motion to intervene as of right. The proposed
intervenors—the American Civil Liberties Union of Texas and River City Gender Alliance—assert
that they have a direct, substantial interest in the outcome of this case because the Rule “imposes
a significant burden on their ability to provide legal services to transgender individuals.” Putative
Intervenors’ Mem. Supp. Mot. Intervene 4, ECF No. 129-2 (citing 45 C.F.R. § 92(b)(1)). They
allege that the Rule “imposes a significant burden on their ability to provide legal services to
transgender individuals” and that they have been unable to represent transgender clients in certain
areas of law because of the Rule. Id. at 4–5. Putative Intervenors also argue that Defendants do
not adequately represent their interests, citing as evidence the fact that Defendants have not
sought to amend or repeal the Rule despite ongoing criticism from various groups and experts in
the field. Id. at 7–8. They further assert that they will be impaired by a judgment in this case
because it could “preclude them from challenging the [Rule] in future litigation.” Id. at 9.
The Court finds that Putative Intervenors have failed to satisfy all four elements required for
intervention as of right. First, while their application is timely, see Joint Mot. Lift Stay 10, ECF No.
125 (noting that the case has been pending since 2016), the other three elements are not met.
Second, Putative Intervenors do not have an interest in this litigation because they are not a party
to the contract at issue and are not subject to the Rule. The Rule does not apply to them; it applies
only to “health care providers” who receive federal funding. 45 C.F.R. § 92(a). Putative
Intervenors do not qualify as health care providers under the Rule’s definition, which requires that
they be a “public or private entity . . . primarily engaged in providing health care services.” Id.
§ 92(f)(1). Putative Intervenors are non-profit organizations that provide legal services to
transgender individuals; they do not provide health care services. See Putative Intervenors’ Reply
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Ex. A (Affidavit of Sarah D. Cooper) ¶¶ 6–7, ECF No. 144-1; Putative Intervenors’ Mem. Supp.
Mot. Intervene 2, ECF No. 129-2. Thus, they do not have an interest in the subject matter of this
litigation and are not bound by a judgment in this case.
Third, Putative Intervenors cannot show that disposition of this action may impair or impede their
ability to protect their interests because they are not subject to the Rule. As discussed above,
Putative Intervenors do not qualify as health care providers under the Rule’s definition and thus
are not affected by it. Even if they were, Putative Intervenors have not shown that a judgment in
this case would prevent them from challenging the Rule in future litigation. They cite no legal
authority for this proposition, and their argument is speculative at best.
Fourth, Putative Intervenors’ interests are adequately represented by Defendants because
Defendants have taken steps to amend or repeal the Rule. See Joint Mot. Lift Stay 10 (noting that
HHS has been actively working on amending the Rule). The fact that Defendants have not yet
amended or repealed the Rule does not mean they do not adequately represent Putative Intervenors’
interests. In fact, it demonstrates that Defendants are actively considering changes to the Rule and
are taking steps to address concerns raised by various groups, including Putative Intervenors.
For these reasons, the Court finds that Putative Intervenors have not satisfied all four elements
for intervention as of right and denies their motion accordingly.2
B.
Putative Intervenors’ Motion for Permissive Intervention
The Court next addresses Putative Intervenors’ motion for permissive intervention. The Fifth
Circuit has held that “[w]hen a proposed intervenor’s interest is not sufficiently aligned with the
main parties, or when the main action does not raise issues central to the proposed intervenor’s
interest, permissive intervention should be denied.” Wal-Mart Stores, Inc., 834 F.3d at 567 (quoting
Espy, 18 F.3d at 1207). “The decision to grant or deny a motion for permissive intervention is
within the sound discretion of the district court.” Id. (citing Espy, 18 F.3d at 1207).
Putative Intervenors argue that they should be allowed to intervene because their interests are not
fully represented by Defendants and because this case raises issues central to their interest in
ensuring equal access to health care for transgender individuals. Putative Intervenors’ Mem. Supp.
Mot. Intervene 10–12, ECF No. 129-2. They assert that the Rule “imposes a significant burden on
their ability to provide legal services to transgender individuals” and that they have been unable to
represent transgender clients in certain areas of law because of the Rule. Id. at 4–5. Putative
Intervenors also argue that Defendants do not adequately represent their interests, citing as
evidence the fact that Defendants have not sought to amend or repeal the Rule despite ongoing
criticism from various groups and experts in the field. Id. at 7–8.
The Court finds that Putative Intervenors’ motion for permissive intervention should be denied.
First, as discussed above, Putative Intervenors do not have an interest in this litigation because
they are not a party to the contract at issue and are not subject to the Rule. The Rule does not
apply to them; it applies only to “health care providers” who receive federal funding. 45 C.F.R.
§ 92(a). Putative Intervenors do not qualify as health care providers under the Rule’s definition,
and thus they are not affected by it.
Second, even if Putative Intervenors had an interest in this litigation, their interests are adequately
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represented by Defendants. As noted above, Defendants have taken steps to amend or repeal the
Rule and are actively considering changes to it. See Joint Mot. Lift Stay 10 (noting that HHS has
been actively working on amending the Rule). The fact that Defendants have not yet amended or
repealed the Rule does not mean they do not adequately represent Putative Intervenors’ interests.
In fact, it demonstrates that Defendants are actively considering changes to the Rule and are taking
steps to address concerns raised by various groups, including Putative Intervenors.
Third, this case does not raise issues central to Putative Intervenors’ interest in ensuring equal
access to health care for transgender individuals. The main issue in this case is whether Defendants
may enforce the Rule against Plaintiffs and other similarly situated entities that provide health care
services to transgender individuals. See Pls.’ Mem. Supp. Mot. Summ. J. 1–2, ECF No. 132-1;
Defendants’ Resp. 1, ECF No. 141
