LGBTQ-rights organization lacks standing to challenge hostile Trump-era regulation

Not just anyone can sue the government over its policies. You need standing to sue the government, which means the plaintiff needs to have a concrete interest in the case and not a general interest in striking down the policy. This case, involving an organization that supports LGBTQ-identifying people, is dismissed because the plaintiff lacks standing to challenge the federal government's policy that would allow federal grant recipients to discriminate against people on the basis of sexual orientation or gender identity. 

The case is Family Equality v. Becerra, a summary order issued on February 14. In 2019, the Trump administration announced that it would no longer enforce a rule prohibiting HHS grant recipients from discriminating on the basis of sexual orientation or gender identity. 

This case is brought by several advocacy organizations who provide education and training to partner organizations that serve the LGBTQ community. They also lobby the government to promote anti-discrimination policies. Here is how plaintiffs describe their interest in bringing this lawsuit:

On appeal, Appellants argue that they have organizational standing because the 2019 Notice “perceptibly impaired” their organizational activities. Specifically, Appellants contend that the 2019 Notice made their education and advocacy activities more costly because they were no longer able to rely on HHS’s regulation prohibiting grant recipients from discriminating against LGBTQ people. Instead, they had to devote staff time to identifying for HHS grant recipients alternative antidiscrimination protections, encouraging grant recipients themselves not to discriminate, educating partner organizations about the effects of the 2019 Notice, and lobbying state governments to fill the gap left by the 2019 Notice. The significant time that staff spent responding to the 2019 Notice, Appellants claim, diverted resources away from their other organizational activities.

This does not confer standing to sue. The Court of Appeals (Parker, Lynch and Lohier) notes that "To allege injury-in-fact under their theory of organizational standing, Appellants must show that the 2019 Notice imposed 'an involuntary material burden on [their] established core activities,' that impeded their 'ability to carry out [their] responsibilities' or forced them to divert money from [their] other current activities to advance [their] established organizational interests.” 

The Court holds that "It is not enough for Appellants to claim that the 2019 Notice burdened their education, outreach, and lobbying efforts because they had to spend time assessing its impact and identifying other antidiscrimination protections that would permit them to continue advocating on behalf of the LGBTQ community." The Court adds that plaintiffs "would have spent time assessing the effects of a policy change no matter the content of the 2019 Notice." Therefore, "In the absence of 'any restrictions on [their] ability to perform the[ir] core activities,' Appellants cannot establish that they have suffered an injury sufficient to create standing."