New York Law School

Art Leonard Observations

Federal Court Lets Transgender Employee Sue Employer for Transition Benefits Denial Under Title VII

Does a transgender employee who seeks coverage under her employer’s benefits plans for breast augmentation surgery have a legal remedy if her claims are denied? U.S. District Judge Sidney A. Fitzwater ruled on January 13 that a transgender woman employed by L-3 Communications Integrated Systems (L-3) may pursue a sex discrimination claim under Title VII of the Civil Rights Act of 1964, having alleged that she was denied such benefits because of her gender, but not under the anti-discrimination provision of the Affordable Care Act (ACA). Baker v. Aetna Life Insurance Company, 2017 U.S. Dist. LEXIS 5665, 2017 WL 131658 (N.D. Tex.).

Judge Fitzwater rejected discrimination claims against the insurance company that provides the coverage and administers the plans on behalf of the employer, finding that the ACA and President Obama’s Executive Order governing gender identity discrimination by federal contractors do not apply to this situation, and that the insurance company cannot be sued under Title VII because it is not the plaintiff’s employer. Judge Fitzwater declined to grant motions for summary judgment by either the employee or by the insurer of her claim that denial of health and short-term disability benefits violates her rights under the terms of the employee benefits plan, setting that claim down for further proceedings.

According to her Complaint filed in the U.S. District Court for the Northern District of Texas in Dallas, Charlize Marie Baker is an employee of L-3 and a participant in the company’s Health Plan and its Short-Term-Disability (STD) Plan, both of which are administered by Aetna Life Insurance Company. She began the process of transitioning in 2011, obtained a legal name change, and had her gender designation changed from male to female on all government-issued documents.  She scheduled breast implant surgery in 2015 after her doctor determined that it was medically necessary to treat her gender dysphoria.

Baker filed claims for coverage of the surgery under the Health Plan and coverage of her recovery period under the STD Plan.  She alleges that the Health Plan denied her claim to cover the surgery, because “the plan does not cover breast implants for individuals with a male birth gender designation who are transitioning to the female gender, although the plan covers individuals with a female birth designation who are transitioning to the male gender and seeking a mastectomy.”  Presumably the mastectomy would be routinely covered because the Health Plan is accustomed to covering mastectomies for female employees when their doctors state that the procedure is medically necessary.   Baker was denied STD benefits because the Plan administrator decided that surgery to treat Gender Dysphoria does not qualify as “treatment of an illness.”

In his January 13 ruling, Judge Fitzwater focused on motions by L-3 and Aetna to dismiss discrimination claims brought under Section 1557 of the ACA, the Employee Retirement Income Security Act (ERISA), and Title VII of the Civil Rights Act of 1964. Section 1557 of the ACA incorporates by reference Title IX of the Education Amendments Act of 1972, which prohibits discrimination “because of sex.”  ERISA has its own non-discrimination provision, but does not specifically ban discrimination “because of sex.”  The ERISA provision broadly prohibits discriminating against an employee to prevent them from getting benefits to which they are entitled under an employee benefit plan.  ERISA provides a vehicle for employees to sue plan administrators for the wrongful denial of benefits to which they are entitled under employee benefit plans.

None of the statutes under which Baker filed her claims explicitly prohibits discrimination because of gender identity. In resisting the motions to dismiss, she relied heavily on a regulation published by the Department of Health and Human Services last spring, providing that Section 1557 of the ACA bans discrimination because of gender identity by insurers and health care providers, tracking interpretations of Title IX by the Department of Education and the Justice Department, which in turn relied on interpretations of Title VII by some federal courts and the Equal Employment Opportunity Commission (EEOC).

Baker also relied on President Obama’s Executive Order 13672, which bans gender identity discrimination by federal contractors. Noting that L-3 is a federal contractor, Baker’s attorneys, Michael J. Hindman and Kasey Cathryn Krummel of Hindman/Bynum PC, urged the court to make “a good faith extension of existing law that the discrimination by Defendants based on her Gender Identity is also discrimination in violation of ERISA in this context and that ERISA must be read to include the prohibition of discrimination based on gender identity.”

“Baker is unable to point to any controlling precedent that recognizes a cause of action under Section 1557 [of the ACA] for discrimination based on gender identity,” wrote the judge. For one thing, he pointed out, the HHS regulation on point was to become effective on January 1, 2017, long after Baker was denied benefits, and thus was not applicable at the time of Aetna’s decision to deny the claims, and furthermore, one of Judge Fitzwater’s colleagues on the Northern District of Texas bench, Judge Reed O’Connor, has issued two rulings rejecting the argument that Title IX, which is the source of the ACA non-discrimination policy regarding sex, should be “construed broadly to protect any person, including transgendered persons, from discrimination.”

On August 21, 2016, Judge O’Connor issued a preliminary injunction against the enforcement of Title IX by the federal government in gender identity cases, and he issued a similar preliminary injunction on December 31, 2016, against the enforcement of the HHS regulation in gender identity cases under the ACA. The government appealed the August 21 ruling to the 5th Circuit Court of Appeals in Houston, and announced it would similarly appeal the December 31 ruling.  Whether those appeals will be pursued or dropped after the change of administration on January 20 is a decision for the new attorney general and secretaries of education and health.  In both of those cases, O’Connor concluded that the plaintiffs were likely to prevail on their claim that Title IX (and by extension the ACA) does not ban gender identity discrimination.

Many federal courts are grappling with the question whether federal laws and regulations banning discrimination “because of sex” should apply to gender identity or sexual orientation discrimination, but there is no consensus yet among the appellate courts. The Supreme Court has a case pending on the gender identity issue under Title IX, but it has yet to be scheduled for argument.  The closest the appeals courts have come are decisions finding that “sex stereotyping” violates Title VII and perhaps by extension other sex discrimination laws, based on a 1989 ruling by the Supreme Court in Price Waterhouse v. Hopkins.  Some courts have used the “sex stereotyping” theory to protect transgender employees in Title VII cases.  However, Judge Fitzwater was correct in observing that as of now there is no “controlling precedent” supporting Baker’s claim that gender identity discrimination, as such, violates Section 1557 of the ACA.  For this judge, a “controlling precedent” would be one coming from the 5th Circuit, which has appellate jurisdiction over federal trial courts in Texas, or the Supreme Court, and expressly addressing the issue.

Baker sought to argue that “the ‘effect’ of E.O. 13672 seems to be little more than to clarify the issue left somewhat ambiguous in Section 1557 that discrimination against transgender persons under this law is prohibited.” She argued that when the ACA was enacted in 2010, some courts had already relied on Price Waterhouse v. Hopkins to find gender identity discrimination covered by Title VII.

Fitzwater found “two fallacies” in this argument. “First,” he wrote, “the Fifth Circuit has not extended Hopkins’ Title VII reasoning to apply to any statute referenced in Section 1557,” and cited Judge O’Connor’s August 21 ruling in support of this point.  “Second, Baker is relying on an Executive Order to clarify what she characterizes as a ‘somewhat ambiguous’ legislative act.”  This was not enough to satisfy Fitzwater, who granted the motions to dismiss the ACA discrimination claim.

Aetna also moved to dismiss Baker’s ERISA claim, contending that ERISA does not ban gender identity discrimination in the administration of employee benefit plans. Fitzwater agreed with Aetna, finding that “as Baker acknowledges, this claim is not currently recognized.  It is for the Congress, not this court, to decide whether to create in ERISA a protection that the statute does not already provide.”  And because the court had already rejected her argument under Section 1557, it would not rely on that ACA provision as a basis for finding a right under ERISA.

Turning finally to the motions to dismiss the Title VII claim, Judge Fitzwater rejected Baker’s argument that Aetna should be liable to suit for sex discrimination under Title VII as an “agent” of L-3 in administering the benefits plans. Fitzwater pointed to 5th Circuit precedents holding that Title VII does not apply in the absence of an employer-employee relationship.  Baker argued that in the EEOC Compliance Manual there is a suggestion that an insurance company administering an employer’s benefit plans is acting as the employer’s agent, “but the EEOC Compliance Manual does not have the force of law,” wrote Fitzwater.  “And this circuit recognizes an agency theory of employer liability only if the alleged agent had authority ‘with respect to employment practices,’” which Baker did not allege.

However, at long last Fitzwater reached the only claim that he refused to dismiss in this opinion: Baker’s allegation that the denial of coverage for her surgery and recovery period under the benefits plans provided by her employer constituted sex discrimination by the employer in violation of Title VII. L-3 argued that Baker had failed to allege that she suffered an adverse employment action based on her gender, but, wrote Fitzwater, “The Court disagrees.”

“Baker plausibly alleges that she was denied employment benefits based on her sex,” he wrote. “She asserts that L-3 ‘engaged in intentional gender discrimination in the terms and conditions of employment by denying her a medically necessary procedure based solely on her gender,’” that the company’s “conduct constitutes a deliberate and intentional violation of Title VII,” and that this conduct “has cause [her] to suffer the loss of pay, benefits, and prestige.”  This was enough, concluded Fitzwater, to allow her Title VII claim against her employer to continue.  Interestingly, his opinion does not explore explicitly whether Title VII applies to gender identity discrimination claims as such, and makes no mention of the EEOC’s 2012 decision to that effect, choosing to treat this as purely a sex discrimination, presumably on the basis that Baker would have been covered for the procedure had she been identified female at birth, so clearly in that sense the denial was because of her sex.

Thus, at this point Baker continues to have a claim under ERISA against Aetna, based on her allegation that Aetna’s refusal to cover her procedure and recovery period violated the terms of the benefits plans, and a sex discrimination claim under Title VII against her employer, based on her allegation that the employer’s benefit plan discriminated against her because of her sex.

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2nd Circuit Upholds Vermont District Court’s Award of Quantum Meruit Damages to Man Who Worked in His Former Same-Sex Partner’s Business Without Salary During Their Relationship

Ruling in Cressy v. Proctor, 2016 U.S. App. LEXIS 21973, 2016 WL 7195814 (Dec. 12, 2016), the 2nd Circuit found that U.S. District Judge William K. Sessions III (D. Vt.) did not abuse his discretion in awarding equitable relief on the theory of quantum meruit to Ronald Cressy, who had worked for many years in his partner Kevin Proctor’s business without formal compensation, and who sought payment after the men’s relationship ended, or in rejecting Proctor’s equitable defenses to the claim, including that Proctor was providing Cressy’s only means of support during the relevant time period.  The court also concluded that Judge Sessions’ award of $173,685 on the claim was not clearly erroneous.  The opinion for the circuit court was by E.D.N.Y. Judge Nicholas G. Garaufis, who sat by designation as part of the 2nd Circuit panel.

Judge Garaufis’s opinion omitted any detailed recitation of facts, but they can be found in Judge Sessions’ opinion, 2015 WL 4665533 (D. Vt., Aug. 6, 2015). Proctor began his business, Synergy Advertising, in Long Beach, California, in 1990 as a sole proprietorship, following a successful career in the advertising business, with one primary client. At its height, the business had five employees, although the staff fluctuated in size.  The business operated at first out of Proctor’s den, then out of an office in his garage.  Before meeting Proctor, Cressy, who was married to a woman, worked for a women’s clothing company as a manager, eventually attaining an annual salary of more than $90,000.  Cressy’s married ended when he came out as gay and his wife filed for divorce in 1993.  During that process, Cressy cashed out his retirement savings and paid off debts, being left with a small amount of cash which he used to pay for some of his personal expenses during his courtship with Proctor, which led to a romantic relationship in 1993, when Cressy moved into Proctor’s house and took paid mental health leave from his employer.  He subsequently quit his job and took time off to recuperate.  At that point, Proctor owned his business, his home (without a mortgage), and a collection of antiques, and had substantial personal savings.

The men’s relationship continued for almost two decades. They considered themselves domestic partners. Proctor supported Cressy financially throughout the relationship.  Cressy began working in Proctor’s business on a part-time basis, but over time his responsibilities increased and he eventually took over the responsibilities of a paid employee who left the business.  The paid employee had been earning $40,000.  After that employee left, a neighbor who was working part-time and Cressy were the only employees aside from Proctor in the business, and eventually the part-timer cut back substantially.  In 1996, Proctor decided to relocate to Vermont.  Proctor claimed that Cressy begged him to take him to Vermont, but the court found that Proctor always intended to take Cressy with him, and involved Cressy in the selection of their new home over an 18 month period during which they traveled to New England together.  Proctor decided to buy a farm in Ryegate, Vermont, using the proceeds from sale of his Long Beach house, personal savings, and profits from his business.  Cressy made no financial contribution to the purchase and his name is not on the deed.  Only Proctor signed the sales documents and was present at closing. The court found Cressy’s testimony that Proctor promised to put Cressy’s name on the deed as not credible.  They moved to the farm over Labor Day weekend in 1998, prior to which they disposed of “a significant amount of Synergy records.”  A home office in the farmhouse contained the remaining business records.  Proctor eventually bought six additional adjoining properties over the next three years, but Cressy was not on the title for any of those purchases and did not contribute to them.  Judge Sessions found that whatever he said to Cressy about the properties beings “ours,” Proctor never intended to give Cressy a half interest in them as Cressy alleged.  All the properties together had an assessed value of nearly a million dollars, and at trial Cressy’s real estate expert testified they were worth $1.5 million.  Cressy helped with farm chores together with Proctor.  Eventually Cressy moved the Synergy records to another building, which subsequently burned down, so at the time of trial there were no business records to confirm testimony about Cressy’s role in the business.

The business continued for some time after the move, becoming mainly an on-line business. Proctor’s father became ill and moved to the property, with Proctor taking primary responsibility for his care and Cressy taking over more responsibility for operating the business, in approximately 2004.  By 2008, Proctor wound down the business and they lived off Proctor’s savings and remaining funds from the business.  By 2012, “these reserves were depleted and Proctor asked Cressy to pay for some household bills out of his own savings.  Shortly after, Cressy left Ryegate and their relationship ended after nineteen years of cohabitation.”  Judge Sessions found that Proctor’s total assets “are worth well over $1 million,” and that “a substantial portion of Proctor’s personal and real property were purchased with Synergy funds.  When Cressy left he had less than $500 in his bank account and no other assets.”

During the course of their relationship, the men never took any steps to formalize their relationship in a civil union, which they could have done in Vermont after the civil union law was enacted. They never registered as domestic partners, as they could have done in California before they moved to Vermont.  They never adopted wills or trusts designating the other as a trustee or beneficiary.  Even after same-sex marriage became legal in Vermont, they did not marry, although Cressy proposed that to Proctor.  “Proctor did make Cressy the beneficiary of a small IRA when Cressy told Proctor that he was feeling insecure about his financial position,” wrote Sessions, “but this was the only time Proctor made any provision for Cressy.”  Since Cressy moved out, Proctor took out a home equity loan to supplement his savings and cover living expenses.  Cressy, who lives with his parents in California, works part-time in a travel agency.

Judge Sessions found that Cressy worked full-time for many years in Proctor’s business without pay, despite Proctor’s claim that Cressy was only part-time and a volunteer who did not expect compensation. In the absence of the destroyed records, this conclusion rested on testimony from family members and former co-workers.  Proctor claimed that Cressy’s work was in exchange for his room and board and expenses all being covered by Proctor for the duration of their relationship.  Although Cressy testified that “he was glad to help Proctor out and it was a ‘natural thing’ for him to help out with his ‘partner’s business,” Sessions found that “by the time he became a full-time employee, however, it was understandable that he expected to receive some benefit for his labor other than room and board,” but that he never received any direct compensation for his work in the business.

Wrote Sessions, “the court is persuaded that, regardless of the reason why, Cressy contributed a significant amount of labor to Synergy without pay and with a reasonable expectation that he was building something with Proctor for their mutual benefit. Even though Cressy was in a precarious financial situation, he never confronted Proctor to insist that he be paid or to disrupt his assumption that the business would ultimately be shared because of Proctor’s ‘very strong personality.’  Cressy, more timid and quiet, tended to avoid confrontation.  While Cressy might have spared himself some surprise and disappointment by confronting Proctor earlier and clarifying whether Proctor had the same expectations, it appears to be consistent with the nature of their relationship for Cressy to defer to Proctor and avoid raising potentially controversial topics.”  The court also found that Proctor’s antique collection, which predated the relationship, continued to grow as they invested Synergy funds and went antiquing together.  Cressy testified that Proctor told him that “these are our retirement.”  They intended to start an antique business and Proctor got a resale license from the state of Vermont so he could acquire antiques without paying sales tax, but the business never got started.

While Judge Sessions found that these facts would not support Cressy’s claim that the men had an implied contract under which he had an ownership share in the business and property and thus was entitled to be compensated on that basis, and that the lack of express promises by Proctor undermined Cressy’s claim under a theory of “promissory estoppel,” he decided that Cressy’s alternative quantum meruit claim was substantiated. Sessions found that “the professional aspect of the relationship is, in this case, entirely severable from the domestic aspects of the relationship.”  He found that Cressy’s household contributions cannot form the basis of equitable claims, because services between living-together partners are not compensable but just part of their relationship.  On the other hand, he found that services in the business should be compensable, and rejected Proctor’s argument that “Cressy’s work should be presumed to have been performed gratuitously.”  Sessions credited Cressy’s testimony that he considered what he was doing in the business as his contribution towards a joint investment in their future.

Sessions found the equities sufficiently in Cressy’s favor to determine that he should be paid for the reasonable value of the services he provided in the business, and decided to calculate those with reference to the salary of the full-time employee in California whose work Cressy had taken over when she left the business, $40,000 a year. On the other hand, he rejected Proctor’s argument that offset against this should be the significant amount he spent on trips, clothes, and other personal expenses for Cressy, finding that “there can be no claim for household services between domestic partners.” Ultimately, he performed a calculation, following the suggestions of Cressy’s economic expert witness, the concluded that “the present value of Cressy’s lost annual savings, including interest, added up to $173,685.  He rejected various equitable defenses by Proctor, including the failure of Cressy ever to demand compensation while he was working in the business and Cressy’s enjoyment of living tax free all those years by not receiving a salary.  Sessions also rejected an argument that Cressy should be estopped from asserting these claims after having left the relationship.  “Cressy is not estopped from bringing his quantum meruit claim now because he had no notice that Proctor did not actually consider him a partner until after their personal relationship ended,” wrote Sessions.  “Neither Cressy nor Proctor sought outside work after the close of Synergy and the domestic life of the parties after 2008 is not relevant to Cressy’s quantum meruit claim,” he continued.  The court also rejected Proctor’s attempt to assert a counterclaim for the value of the room, board, clothing, travel expenses, health insurance, recreational expenses and other sundry goods, services and provisions, as to which Proctor sought restitution, having concluded that these were considered gratuitous within the personal relationship of the two men.

In finding that Sessions did not abuse his discretion in reaching these conclusions, Judge Garaufis wrote, “The court heard conflicting testimony regarding the materiality of Cressy’s labor at Synergy, and, in its role as fact finder at a bench trial, resolved these factual conflicts with its findings that Cressy was a full-time employee with administrative and clerical responsibilities who ran the day-to-day operations of the company. The evidence adduced at trial permitted this interpretation.  It was not clear error for the district court to find that Cressy’s labor rendered a material benefit to Proctor.”  The 2nd Circuit upheld Sessions’ finding that one could separate out the personal and the professional in the relationship, and treat the benefits Cressy enjoyed from Proctor’s support of his “lifestyle” during their relationship as completely apart from the value Proctor derived from Cressy’s work in the business.  “As Proctor’s domestic partner,” wrote Garaufis, “Cressy would have expected to enjoy these sorts of lifestyle benefits, regardless of whether he contributed to Proctor’s business.  By contrast, Cressy’s labor as a full-time employee of Synergy was not within the scope of the normal exchange of domestic benefits; Proctor could not have reasonably expected to enjoy the benefits of Cressy’s labor as a matter of course by virtue of the fact of their relationship alone.”  The court cited to a Vermont Supreme Court case, Harman v. Rogers, 510 A.2d 161 (1986), which reached a similar conclusion regarding an unmarried couple, “one of whom ran the day-to-day operations of a business owned by the other and was not compensated.”  Cressy lives in California and sued Proctor in Vermont under diversity jurisdiction, so Vermont law on these questions is controlling.

The 2nd Circuit panel also saw no “clear error” in Sessions’ calculation of damages, finding that the evidence presented at trial provided a sufficient basis for Sessions’ conclusions. The court also rejected Proctor’s argument that it was “clear error” for Sessions to fail to credit Proctor in this calculation for the value of his support for Cressy’s lifestyle expenses during the relationship.

Cressy was represented in the litigation by Cevin McLaughlin of the Middlebury firm of Langrock, Sperry & Wool LLP. Proctor was represented at trial by Richard Thomas Cassidy of the Burlington firm Hoff Curtis.  Mark Scherzer of New York brought Proctor’s appeal to the 2nd Circuit.

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Federal Judge Issues National Preliminary Injunction against ACA Regulation Banning Gender Identity Discrimination

In an eleventh-hour action, U.S. District Judge Reed O’Connor (N.D. Texas, Wichita Div.) issued a nationwide preliminary injunction on December 31, barring the federal government from enforcing part of a new regulation that was scheduled to go into effect on January 1, 2017, which interpreted the prohibition on discrimination because of sex under the Affordable Care Act to extend to discrimination because of “gender identity” and “termination of pregnancy.” Franciscan Alliance v. Burwell, Civ. Action No. 7:16-cv-00108-O.  Judge O’Connor’s action echoed his earlier issuance, on August 21, 2016, of a nationwide preliminary injunction against the enforcement by the federal government of Title IX of the Education Amendments of 1972 to protect transgender schoolchildren from discrimination, in State of Texas v. United States of America, 2016 WL 4426495 (N.D. Texas, August 21, 2016).  In both opinions, O’Connor rejected the Obama Administration’s position that discrimination because of gender identity or expression is a form of “sex discrimination” that is illegal under federal laws, a question that the U.S. Supreme Court may address if it gets to the merits in G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir.), cert. granted, 136 S. Ct. 2442 (No. 16A52)(2016).  Judge O’Connor’s analytical task was “simplified” because the ACA anti-discrimination provision, Section 1557, incorporates by reference the sex discrimination ban in Title IX that was the subject of the judge’s prior preliminary injunction ruling.

The ACA authorizes the Department of Health and Human Services (HHS) to adopt regulations through the procedures of the Administrative Procedure Act (APA) to give detailed substance to the broad terms of the statute. The ACA provides in Section 1557 that health programs or activities receiving federal financial assistance not discriminate on grounds prohibited by four federal statutes.  Title IX, which bans sex discrimination in educational programs receiving federal money, was one of the listed statutes and thus incorporated by reference into the ACA.  (Others deal with discrimination because of race, national origin or disability.)  The Title IX regulations adopted by the Education Department in the 1970s include an express religious exemption provision, so that religiously-controlled educational institutions are exempt from Title IX compliance to the extent that compliance would violate their religious tenets.  After the ACA was enacted in 2010, the Department of Health and Human Services began the APA process, drafting proposed regulations, publishing them for comment, and publishing a final regulation that, with respect to the provisions in dispute in this case, was to go into effect on January 1, 2017.  During the Obama Administration, several different federal agencies responsible for interpreting and enforcing sex discrimination bans have been working through the issue of how these relate to gender identity.  The Equal Employment Opportunity Commission (EEOC) was the first to issue a ruling, in the context of adjudicating a federal job applicant’s complaint, that gender identity discrimination was actionable under Title VII’s sex discrimination ban, but in so doing it was actually following earlier case law, most specifically from the 6th Circuit, which used sex stereotyping analysis first accepted by the Supreme Court in 1989 in Price Waterhouse v. Hopkins, a Title VII case.  The HHS regulation drafters adopted similar reasoning to include “gender identity” in their proposed regulation, and included gender identity in the final Rule published in the federal register on May 18, 2016.  81 Fed. Reg. 31376-31473 (codified at 45 CFR Sec. 92).  By the time of that publication, the Education Department had taken the position that Title IX bans gender identity discrimination, in the context of a restroom access dispute in the %Gloucester County School District% case and a subsequent “Dear Colleague” letter published on its website and distributed to school districts nationwide.  However, HHS did not include in its proposed or final rule the religious exemption language from Title IX.

Several states and some religious health care providers joined together to challenge the new HHS Rule, not in its entirety but in a focused attack on the inclusion of “gender identity” and “termination of pregnancy” in the non-discrimination provisions. Blatantly forum shopping, they filed their suit in the U.S. District Court in Wichita Falls, an outpost of the Northern District of Texas where Judge O’Connor, the only judge assigned to that courthouse, sits a few days every month. (O’Connor’s chambers are in Fort Worth, the location of his home courtroom.)  Filing in a major city would subject the plaintiffs to a random assignment of a judge; filing in Wichita Falls guaranteed that their case would be heard by Judge O’Connor. O’Connor, who was appointed by President George W. Bush, has a propensity to issue nationwide injunctions against regulatory actions of the Obama Administration on grounds that they exceed executive branch authority.  His August 21 preliminary injunction in the Title IX case was not his first.  There is no logical reason why this case should have been filed in the Wichita Falls court, but plaintiffs can claim proper venue there by pointing to local members of the co-plaintiff Christian Medical & Dental Association (CMDA), a national organization, who may reside within the geographical confines of the Wichita Falls court, or to local Texas state agencies whose operation in that area would be affected.  (The court does not engage in a venue analysis, despite the obvious forum-shopping.)  Other private plaintiffs are Franciscan Alliance, Inc. and its wholly owned entity Specialty Physicians of Illinois LLC.  The public plaintiffs are the states of Texas, Wisconsin, Nebraska, Kansas, Louisiana, Arizona, Kentucky and Mississippi.  The heavy hand of Texas Attorney General Ken Paxton looms over the litigation, since Paxton has said, in effect, that his job is to sue the federal government every day on behalf of the right of Texas to operate free of federal regulatory constraints. Plaintiffs moved for partial summary judgment or, in the alternative, a preliminary injunction, on October 21, 2016, and the court agreed to expedite briefing and hearing so as to be able to rule, at least on the preliminary injunction, before the Rule could go into effect on January 1.

There is a basic argument between the parties as to the requirements imposed by the Rule. The plaintiffs argue that under the rule they would be required to provide gender transition surgery and abortions or suffer liability to patients and potential loss of federal funding eligibility.  They claim that this would violate their rights under the Religious Freedom Restoration Act, and that the government’s interpretation of the ban on sex discrimination to cover “gender identity” and “termination of pregnancy” went beyond regulatory authority.  HHS argues that the rule does not compel either procedure in every case, merely banning discrimination on these bases.  Thus, for example, it could be argued, if a health care provider/institution performs mastectomies, it may not take the position that it will perform a mastectomy for a woman as a treatment for breast cancer but will not perform a mastectomy for a transgender man as part of his transition process, as this would be sex discrimination. Both women and transgender men are entitled to mastectomies.  Similar arguments are made for a variety of the component parts of procedures, including, for example, hormone therapy, sterilization procedures and the like.  A woman suffering an estrogen deficiency can receive hormone therapy, and so can a transgender woman; depriving the transgender woman of estrogen therapy because she was identified male at birth is sex discrimination.  In effect, argue the private plaintiffs, the non-discrimination requirement would inevitably require them to perform procedures that violate their religious views, and, argue the public plaintiffs, would require them to violate various state laws and regulations, such as banning the termination of pregnancies in state facilities or the use of state Medicaid funds for gender transition or pregnancy termination procedures.  Judge O’Connor agreed with the private plaintiffs that however the dispute over interpretation is resolved, there is a likelihood that their exercise of religion would be substantially burdened.

A portion of the decision, not detailed here, goes through the analysis of jurisdiction, ripeness and administrative exhaustion, finding that none of those doctrines would require a finding against the court’s jurisdiction to grant the requested relief on this motion. Proceeding to the merits, Judge O’Connor provided a detailed discussion of the tests for issuing a preliminary injunction.

First, as to likelihood of success on the merits, he found that Title IX does not on its face ban discrimination because of “gender identity” or “termination of pregnancy.” Most of the discussion focuses on the “gender identity” issue, and channels the discussion accompanying his August 21 preliminary injunction against Title IX enforcement in gender identity cases.  The discussion regarding the abortion issue focuses on the failure of HHS to incorporate in its new regulation the religious and abortion exemptions in existing Title IX regulations, arguing that Congress’s wording of the Section 1557 non-discrimination provision led to the conclusion that such incorporation was intended by Congress.

“The precise question at issue in this case is: What constitutes Title IX sex discrimination?” he wrote. “The text of Section 1557 is neither silent nor ambiguous as to its interpretation of sex discrimination.  Section 1557 clearly adopted Title IX’s existing legal structure for prohibited sex discrimination.  42 U.S.C. sec. 18116(a).  For the reasons set out more fully below, this Court has previously concluded: the meaning of sex in Title IX unambiguously refers to ‘the biological and anatomical differences between male and female students as determined at their birth.’  Texas v. United States, No. 7:16-cv-00054, 2016 WL 4426495, at *14 (N.D. Tex. Aug. 21, 2016).”  Judge O’Connor reinforced this reference with a citation to the federal district court ruling in %Johnston v. Univ. of Pittsburgh of Com. Sys. of Higher Educ.%, 97 F. Supp. 3d 657, 674 (W.D. Pa. 2015), %appeal dismissed% (Mar. 30, 2016), rejecting a Title IX gender identity discrimination claim by a transgender college student with restroom access issues, but omits reference at this point to the contrary ruling the 4th Circuit in the Gloucester County case.  Because he finds Title IX unambiguous on this point, he concludes that the HHS Rule is not entitled to Chevron deference that would normally be accorded a regulation adopted under the APA, and proceeds to apply his own interpretation of the statute, in which he finds Congress’s “binary definition of sex” to be shown by references in the statute to “students of one sex,” “both sexes,” and “students of the other sex.”  He also appeals to “ordinary meaning,” to the failure of Congress to spell out any intent to cover “gender identity,” and to the fact that as of the time the ACA was enacted, federal agencies had not yet begun to treat “gender identity” discrimination as cognizable under sex discrimination statutes.

He wrote that “even if, as Defendants argue, the definition of sex discrimination was determined in 2010 when the ACA incorporated Title IX’s prohibition of sex discrimination, the Court is not persuaded it was passed with the Rule’s expansive scope in mind because: (1) Congress knew how but did not use language indicating as much, and (2) in 2010 no federal court or agency had interpreted Title IX sex discrimination to include gender identity.” (To this point he quoted a Washington Post article from 2015 stating that the new HHS Rule “for the first time includes bans on gender identity discrimination as a form of sexual discrimination, language that advocacy groups have pushed for and immediately hailed as groundbreaking.”)  And, of course, he notes that before the ACA was passed and “for more than forty years after the passage of Title IX in 1972, no federal court or agency had concluded sex should be defined to include gender identity” in a Title IX case.  In a footnote, he rejected the government’s attempt to bolster its case by reference to Price Waterhouse, pointing out that it was Title IX, not Title VII, which was incorporated by reference into the ACA.

As to the failure of the Rule to incorporate Title IX’s religious exemption language, he wrote, “The text of Section 1557 prohibits discrimination ‘on the ground prohibited under Title IX of the Education Amendments Act of 1972 (20 U.S.C. 1681 et seq.).’ . . . That Congress included the signal ‘et seq.’, which means ‘and the following,’ after the citation to Title IX can only mean Congress intended to incorporate the entire statutory structure, including the abortion and religious exemptions.  Title IX prohibits discrimination on the basis of sex, but exempts from this prohibition entities controlled by religious organizations when the proscription would be inconsistent with religious tenets.  20 U.S.C. sec. 1681(a)(3).  Title IX also categorically exempts any application that would require a covered entity to provide abortion or abortion-related services. 20 U.S.C. sec. 1688.  Therefore, a religious organization refusing to act inconsistent with its religious tenets on the basis of sex does not discriminate on the ground prohibited by Title IX,” and any attempt by HHS to impose the non-discrimination requirement without including the religious exemption violates Congressional intent.  O’Connor bolstered this point by invoking the Supreme Court’s Hobby Lobby decision, finding that the Rule “places substantial pressure on Plaintiffs to abstain from religious exercise” by forcing them to provide services contrary to their religious tenets, and that the government’s desire to expand access to “transition and abortion procedures,” even if deemed a “compelling interest” for purposes of the federal Religious Freedom Restoration Act, was not the least restrictive alternative for providing such access, and thus failed under Hobby Lobby.  Taking his cue from Justice Samuel Alito’s opinion in that case, O’Connor pointed out that the government could offer to pay for transition and abortion services to be provided by those who did not have religious objections to them in order to avoid burdening the Plaintiff’s religious rights.

In another point worth noting, O’Connor cited to an HHS study showing that the medical community is not unanimous on the value and necessity of performing transition procedures, particularly on minors, undermining the “compelling interest” that the government must show under RFRA to justify substantially burdening health care providers with sincere religious objections to performing such procedures.

Having concluded that the plaintiffs were likely to succeed on the merits of their attack, O’Connor found that they easily satisfied the other requirements for preliminary injunctive relief, noting in particular that an ongoing investigation of the state of Texas’s practices made the potential of harm to the Plaintiffs more than hypothetical, as did the looming requirement for the private Plaintiffs to change the range of services they offer or risk loss of federal funding. More significantly, as to the scope of the injunction, he cited authority that “the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class,” and that “a nationwide injunction is appropriate when a party brings a facial challenge to agency action under the APA.”  In this case, he pointed out, “CMDA’s membership extends across the country and the Rule applies broadly to ‘almost all licensed physicians,’” quoting the HHS description published in the Federal Register.  “Accordingly, the Rule’s harm is felt by healthcare providers and states across the country, including all of CMDA’s members, and the Court finds a nationwide injunction appropriate.”  Noting a severability provision in the Rule, he observed that the injunction only applied to the inclusion of “gender identity” and “termination of pregnancy” under the definition of sex discrimination, and did not bar enforcement of any other part of the Rule.  A preliminary injunction stays in effect until the court issues a ruling on the merits, unless it is reversed on appeal.  As of December 31, the Obama Administration had barely three weeks left in office, to be succeeded by an administration much less likely to defend the Rule, so while this is merely preliminary relief for the Plaintiffs, it signals a major and probably long-term setback to efforts by transgender people to obtain non-discriminatory health care, including coverage for medically-necessary transition procedures.

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Missouri Appeals Court Reverses Conviction of HIV-Infected College Wrestler

The Missouri Eastern District Court of Appeals has reversed the jury conviction of Michael L. Johnson, an HIV-positive African-American man, on felony charges of recklessly infecting another with HIV and exposing others to HIV, for which he was sentenced to 30 years in prison. The appeals court found in a December 20 ruling that the prosecution had violated court discovery rules by ambushing Johnson at trial with selective excerpts from recordings of telephone conversations he had in jail, thus depriving Johnson of a fair trial.  The St. Charles County prosecutor now has to decide whether to retry Johnson, who was convicted in May 2015 for events that occurred in 2013.  State of Missouri v. Johnson, No. ED103217.

Johnson, a championship high school wrestler from Indianapolis, moved to St. Charles, Missouri, in 2012 to attend Lindenwood University, where he had had been recruited for the wrestling team. On January 7, 2013, he went to the student clinic complaining of perianal warts and seeking STD testing.  He tested positive for gonorrhea and HIV.

A few weeks later, Johnson had unprotected oral and anal sex with another Lindenwood student whom he had met through social media. That student testified at the trial that Johnson had not disclosed he was HIV-positive.  The student experienced symptoms a few weeks later, went to a hospital emergency room, and was diagnosed with gonorrhea and HIV.  A follow-up HIV test led doctors to inform the student that his HIV infection was recent.  The student testified that before having sex with Johnson he had not had sex with anyone else for a year, so Johnson was the only person who could have infected him.

The student contacted Johnson and they met in Johnson’s dorm room, where the student told Johnson he was HIV-positive, and they had sex again. The student maintains that Johnson still did not disclose that he was HIV positive.  When the student noticed that Johnson was still using social networking and “dating internet applications” but was not mentioning in his profile that he was HIV-positive, the student contacted the St. Charles Police Department, whose investigation turned up five other people who had sex with Johnson, all of whom claimed Johnson had not disclosed to them that he was HIV positive.

In the subsequent jury trial, Johnson admitted that he learned of his HIV diagnosis on January 7, 2013, so the critical issue at trial was whether he disclosed his HIV status to his sexual partners. Johnson testified that he had informed each of them before engaging in sex, except for one man with whom he had sex only in November 2012, before he learned of his infection.  Prosecutors impeached Johnson’s testimony by playing excerpts from the jail telephone recordings, in which Johnson had stated that he was worried that people would not want to be his friend if they learned about his HIV status, that he was “pretty sure” he had disclosed his HIV status to his sexual partners, and that he was “unsure” about how to tell people about his status.  This summary in the court’s opinion of the prejudicial statements extracted from more than 24 hours of telephone calls does not indicate who the other parties were on the calls, and whether all three statements came from the same call.

Johnson’s lawyer had objected to the introduction of these edited recordings, which were only revealed to her the Monday morning of the trial, May 11, 2015. The prosecutor claimed that the information had been sent to the lawyer’s office the previous Friday, but that was a holiday and the law office was closed.  A year and a half earlier, on November 26, 2013, the defense had filed a request for discovery as authorized by court rules, asking for “any written or recorded statements and the substance of any oral statements made by the defendant” that was relevant to the charges against him.  The court rule says that such requests shall be answered within ten days after the prosecutor receives the request, and imposes an ongoing duty on the prosecutor to supplement its response if it acquires new relevant information, and the disclosure duty extends beyond information known to the prosecutor to include any information that might be obtained through reasonable inquiry.

It is, of course, common practice that jails record prisoner calls and that prosecutors can get access to the recordings. In this case, there were more than 24 hours of recordings of Johnson’s phone calls made while he was in jail, two calls from as far back as October 17, 2013, just weeks before the defense filed its discovery request, and one call from just a few days before the request.  Yet the state waited a year and a half to turn this information over, and even then playing games to avoid defense counsel learning of them until the morning of the trial by sending them over on a holiday before a weekend.  Defense counsel objected, but the trial judge reserved ruling on the objection, since the evidence would not be presented until later in the trial, and then the judge overruled the objection, stating that the defense had a few days in possession of the recordings and so was not prejudiced.

The jury convicted Johnson on every count except the charge involving the man with whom he had sex in November 2012 – an instance of classic overcharging by the prosecution, since Johnson did not know he was HIV positive at the time. He was sentenced to 30 years for infecting the other student, 14 years for recklessly exposing another person, and 5-1/2 years on each of three charges of “attempting” to expose other people, with the sentences to run concurrently.

Johnson raised two issues on appeal. First, he challenged the fairness of his trial because of the state’s “ambush” tactics with the recording.  Second, he claimed that the prison sentence was “grossly disproportionate” to the offenses, in violation of the 8th Amendment ban on cruel and unusual punishment.  Because the appeals court agreed with his first issue, it did not rule on the 8th Amendment claim.

The State candidly admitted on the record before the appeals court that it “intentionally withheld the recordings from the defense to gain a strategic advance,” wrote Presiding Judge James M. Dowd for the appellate panel. “The State explained: ‘If we disclose to the defense they’ll tell their client.  And I’m not impugning anyone’s integrity, I’d do the same thing: Hey, they’re listening to your conversations, shut up.  So we don’t disclose them until towards the end.”

Judge Dowd pointed out that the state’s strategy was exactly what the discovery rule was intended to avoid. “We find that this discovery violation likely resulted in Johnson’s genuine surprise at learning on the first day of trial that the State had prepared to use the untimely-disclosed recordings against him, since at no earlier point had Johnson learned that the State [that is, the prosecutors]—and not just the county jail – had the recordings in its possession, nor had he learned that the State planned to use them at trial.”

The court rejected the State’s argument that because everybody knows that their prison phone calls are being recorded, there is no fundamental unfairness in failing to disclose them before trial. Judge Dowd pointed out that there were prior Missouri court rulings directly addressing this point.  It is not enough to show that the defendant knows the jail is recording the phone conversations. The relevant knowledge would be that the prosecution has the recordings and is planning to use them at trial, with an opportunity for the defense to learn what recordings were going to be used.  Furthermore, the court rejected the trial judge’s conclusion that the problem was cured because a few days went by before the recordings were offered in evidence.

“Johnson was forced to make critical strategic decisions – such as whether to seek to avoid trial by pursuing a plea bargain, whether to waive his right to silence and testify, and what particular defense to raise – without being timely furnished highly prejudicial, properly-requested discovery,” wrote Dowd. “The State had more than a year and half to prepare its case with the benefit of its chosen excerpts of Johnson’s jail phone recordings but failed, in violation of Rule 25.03, to disclose to Johnson before the morning of the first day of the trial any part of the more than 24 hours of recordings. Even as an inadvertent mistake, such untimely disclosure would be suspect under Missouri law, but here the State admitted that it purposely withheld the recordings from Johnson so as not to tip off the defense counsel that her client was being recorded making incriminating statements.”

Dowd said that the “pretty sure” statement was “profoundly prejudicial” when it was used out of context to impeach Johnson’s testimony that he had disclosed his HIV status to his sexual partners. Thus, concluded Dowd, the state’s tactic had likely “prevented Johnson from preparing a meaningful defense – i.e., one that was not sabotaged by the State’s deliberate untimely disclosure of highly prejudicial evidence – and that timely disclosure of the statement would have affected the result of Johnson’s trial.”

Dowd also rejected the argument that Johnson’s counsel had enough time to deal with the recordings during the first three days of trial before Johnson’s testimony. “The solution to the State’s blatant discovery violation should not be to put the defense at an additional disadvantage by forcing the defense to spend its time during trial analyzing improperly-withheld discovery instead of preparing for the next witness, next day of trial, or the other work-intensive matters a trial lawyer must deal with,” wrote Dowd.  This violation, he said, “is inexcusable, should not be repeated, and supports a finding of fundamental unfairness in this case,” calling it a “bad faith strategy” that “clearly was intended to disadvantage Johnson.”  In other words, they were out to get him!

Thus, it was an abuse of discretion for the trial judge to let the State use this evidence, and the conviction was reversed and sent back to the county Circuit Court for a new trial. It is up to the prosecutor to decide whether to go forward.  Since Johnson has served but a small fraction of the 30 year sentence, there may be local pressure to have a new trial.  In light of the evidence, which would be admissible the second time around now that it has been disclosed, it is possible that Johnson will seek to strike a plea bargain for a shorter sentence rather than risk another trial.

In the meantime, this case, which has attracted lots of attention, shows that Missouri’s HIV-exposure law requires reconsideration, especially in light of the developments in medical treatment that have changed the calculus of risk in terms of HIV transmission and the consequences of infection from what they were when the law was passed in 1988. Laws on HIV exposure passed before these medical developments are now inadequately sensitive to evidence that people on PREP may be infected without presenting a risk of transmission, and of course the mortality and morbidity issues have changed drastically since protease inhibitors became part of the standard treatment regimen for HIV in the mid-1990s.

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Louisiana Court Finds Governor Edwards’ Civil Rights Executive Order Unconstitutional

A trial judge in Louisiana ruled on December 14 that an Executive Order by Governor John Bel Edwards, forbidding anti-LGBT discrimination in the executive branch of the state government and by state contractors, violates the Louisiana constitution and laws. 19th Judicial District Judge Todd W. Hernandez, in the Parish of East Baton Rouge, said that this Order violates the separation of powers established by the Louisiana Constitution, is outside the governor’s authority to “faithfully execute the laws,” and should be enjoined.  Governor Edwards promptly announced that he would appeal this ruling.  Louisiana Department of Justice v. Edwards, No. 652,283 (19th Judicial District).

Hernandez’s decision came in a lawsuit filed by the Louisiana Department of Justice and Attorney General Jeff Landry, who challenged the authority of the governor to extend anti-discrimination rules to categories not already covered by state statutes. At the same-time, Hernandez ruled on a countersuit filed by the governor as part of his response to Landry’s lawsuit, in which Gov. Edwards challenged Landry’s refusal to approve attorneys who were being retained by executive branch agencies to represent them in litigation.

Landry argued that JBE 16-11, the order signed by Edwards shortly after he took office early in 2016, inappropriately creates “a newly created protected class of persons not recognized by current law.” He also contended that the restrictions placed on state contractors violated the Commerce Clause of the U.S. Constitution and “certain First Amendment rights and privacy interest rights established by the Louisiana and United States Constitutions,” according to Judge Hernandez.  Landry’s reference to “class of persons” mischaracterizes the Executive Order, which does not create protected classes, but rather, in the general approach of civil rights laws, forbids discrimination because of particular characteristics, in this case sexual orientation and gender identity.  Thus, everybody is protected from discrimination because of those characteristics, including non-gay people and cisgender people.

Hernandez declared that the Executive Order “constitutes an unlawful ultra-vires act because, regardless of the defendant’s intent, the effect of its adoption and implementation, creates new and/or expands upon existing Louisiana law as opposed to directing the faithful execution of the existing laws of this state pursuant to the authority granted unto [sic] the office of the Governor to issue executive orders.” Hernandez proclaimed that the governor was improperly exercising legislative authority, which is “an unlawful usurp [sic] of the constitutional authority vested only in the legislative branch of the government.”

Judge Hernandez did not cite any prior Louisiana court decisions to support his ruling. One suspects the state courts have never before addressed this question, or at least not in a way that would support the court’s ruling.  Instead, the judge embraced his literalistic reading of the state constitution, which “declares the office of the Governor as the ‘Chief Executive Officer’ of the State of Louisiana and he/she shall see that the laws of this state are faithfully executed,” and goes on to cite a statute that says, according to the judge, that “the sole purpose for the issuance of an executive order is to provide the office of the Governor with a mechanism to ‘faithfully execute the laws of the State of Louisiana.’”

Hernandez was not accurately quoting the statute, LRS 49:215, which says: “The authority of the governor to see that the laws are faithfully executed by issuing executive orders is recognized.” This is not, on its face, restricted to the laws of Louisiana, and the oath of office of the governor, together with all other state elected officials, requires them to support both federal and state laws, including the federal and state constitutions, both of which provide “equal protection of the laws” to all people in the state.

The U.S. Supreme Court established in 1996 in Romer v. Evans that anti-gay discrimination violates “equal protection of the laws” under the 14th Amendment to the U.S. Constitution, unless the state has a rational basis to treat people differently because of their sexual orientation. Thus, an Executive Order banning anti-gay discrimination in the executive branch of the state government is consistent with the governor’s obligation to see that the laws are faithfully executed, although there might be some controversy about extending this to “gender identity” in the absence of U.S. Supreme Court authority. The 11th Circuit U.S. Court of Appeals, whose jurisdiction covers Alabama, Florida and Georgia, is so far the only federal appeals court that has recognized a constitutional equal protection claim by a transgender public employee, but the logic of Romer v. Evans would surely cover such a claim as well.

Hernandez found that the Executive Order “extends beyond the lawful parameters of executive order authority and its adoption and implementation is found to be either a creation of new law and/or an expansion of existing law. In either case,” he continued, “this is a violation of the separation of powers doctrine of the Louisiana Constitution and is an infringement upon the constitutional authority vested solely upon the Legislature of the State of Louisiana.”

However, Hernandez rejected without explanation Landry’s claim that other federal or state constitutional provisions were violated by the executive order.

Turning to the governor’s counterclaim, Hernandez found that Louisiana statutes specifically authorize the attorney general to approve or disapprove lawyers whose engagement is sought by executive branch agencies, but that once those lawyers have been engaged, the attorney general has no supervisory authority over them and cannot dictate what positions they take in their representation.

As to the governor’s request for a ruling that the office of the governor is superior to the office of the attorney general when a dispute about legal policy arises, Hernandez declined to rule, finding that without the presentation of an actual dispute between the two officers, the question was not “ripe” for judicial consideration. “There is no evidence of a justiciable controversy concerning which constitutionally created officer of this state should prevail if a dispute were to arise between them relating to a legal matter concerning the legal interest of the State of Louisiana,” he wrote.  To express a view in the abstract would be akin to rendering an “advisory opinion” beyond the authority of the court.

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Federal Court Upholds Dismissal of Deputy Clerk Who Refused to Process Same-Sex Marriage License

A deputy clerk in Harrison County, Indiana, lost her Title VII challenge to her discharge on December 15, when U.S. District Judge Richard L. Young ruled that she was not privileged by her religious beliefs to refuse to process a marriage license application from a same-sex couple. Incidentally, it was Judge Young who ruled in 2014 that Indiana’s ban on same-sex marriage was unconstitutional.  Summers v. Whitis, 2016 WL 7242483, 2016 U.S. Dist. LEXIS 173222 (S.D. Indiana, Dec. 15, 2016).

 

Linda Summers worked as a deputy clerk in the Harrison County Clerk’s office, where her elected boss was County Clerk Sally Whitis. Part of Summers’ duties was to process marriage licenses.  This consists of pulling up on the office computer the application that the couple would already have filled out on-line before coming to the Clerk’s Office, verifying that it was complete, collecting a fee, and then printing out the license and recording it in a book.  She did not perform marriages or actually sign licenses.

 

The U.S. Court of Appeals for the 7th Circuit in Chicago affirmed Judge Young’s ruling striking down the Indiana ban on September 4, 2014.  His injunction was “on hold” while the state sought Supreme Court review.  On October 6, 2014, the Supreme Court denied the state’s petition, making the 7th Circuit’s ruling final.  “On that same day,” wrote Judge Young, “the Office of the Indiana Attorney General issued a memorandum to all elected Clerks,” informing them that as soon as the 7th Circuit issued its final mandate to the state, Judge Young’s injunction would go into effect.  “As soon as that mandate is issued – and it could be as early as today – county clerks will be prohibited from denying marriage licenses to same sex couples so long as all other marriage license requirements are met,” said the memorandum.  “It would be advisable to start making necessary preparations to process marriage license applications and issue licenses accordingly.”

 

Whitis, who was on vacation when this happened, followed up on October 22, sending an email to all her employees, including Summers, informing them that “the Supreme Court has ordered Indiana to proceed with gay marriages. Therefore, it is our duty in the Clerk’s Office to process those applications. The process in Incite2 [the office software] has been modified to accommodate these filings.  Even though it may be against your personal beliefs, we are required by state law to process their applications.  We are only doing the paperwork and not performing their ceremony.  I expect everyone to comply.  Thanks.”

 

When a same-sex couple came to the office on December 8, 2014, to request their marriage license from Summers, she didn’t notice at first that both were women. Wrote Judge Young, “She went to her computer, opened the Incite system, and pulled up the couple’s application.  She then realized that the individuals requesting the marriage license were both the same sex.  Summers hesitated, unsure what to do.  After a moment, she decided that she could not process the application and motioned for Whitis to come and assist.”

 

Summers testified: “I told her this is a same-sex marriage license, and I can’t do it. She said, ‘You are not marrying them; you’re just providing them with the license.’  And I said, ‘I don’t feel that way.’  And I said, ‘I can’t do it.’  And she says, you’re required to do it, you have to do it – some of that order.  And I said, ‘I’m sorry.  I can’t do it.’  And she – that’s when she jerked the paper out of my hand and she took it and sat down at her desk and took the couple.’”  Whitis processed the license herself and told told Summers that such a refusal “could not happen again, because it was her job to do those.”

 

After reviewing the County Personnel Policies, which provide that insubordination “by refusing to perform assigned work or to comply with written or verbal instructions of supervisors” was ground for discharge, Whitis made the decision to discharge Summers and she consulted with the County Attorney. Whitis testified that “Summers’ religious beliefs did not play any part in the decision to terminate her.”

 

The next day, Summers placed a letter on Whitis’s desk asking that Whitis, as her employer, “accommodate my sincerely held religious belief by not requiring me to perform the task of processing marriage licenses for same sex couples.” Whitis read the letter when she got to work later that morning, and then gave Summers a letter notifying her that she was terminated “due to insubordination, as is defined in the Handbook on page 64.”  Whitis testified that Summers was insubordinate because “she refused to do a task that she was asked to do.”

 

Summers testified that she identifies as a Christian and could not process marriage licenses for same-sex couples because it was “against God’s law” to do so, and God’s law is “above legal law.” She cited some passages from the Bible in support of her position.  Whitis testified that she did not treat Summers any differently because of her religious beliefs and applied the same policies to her as to all other employees.

 

Judge Young noted that under Title VII of the Civil Rights Act of 1964 it is unlawful for an employer to discharge any individual because of their religion. According to the most recent Supreme Court precedent from 2015, he found that there are now two elements for a plaintiff to state a potential religious discrimination claim: (1) her religious belief or practice conflicted with an employment requirement, and (2) her need for an accommodation of that religious belief or practice was a motivating factor in the employer’s adverse employment decision.

 

Young found that Summers “cannot satisfy the first element of her claim.” He found that “the court must be able to conduct a limited, objective inquiry into the purported conflict.  Here, the court finds no objective conflict between Summers’ duties as a deputy clerk and her religious opposition to same-sex marriage.  When it came to marriage licenses, Summers’ job merely required her to process the licenses by entering data and handing out information.  Specifically, she had to pull up the application, verify that certain information was correct, collect a statutory fee, print a form, and record the license in a book for public record.  At bottom, she was simply tasked with certifying – on behalf of the state of Indiana, not on her own behalf – that the couple was qualified to marry under Indiana law.  The duties were purely administrative.”

 

Young emphasized that Summers was not performing marriage ceremonies or personally signing licenses or certificates. “She was not required to attend ceremonies, say congratulations, offer a blessing, or pray with couples.  Her employer did not make her express religious approval or condone any particular marriage.  Summer remained free to practice her Christian faith and attend church services.  She was even free to maintain her belief that marriage is a union between one man and one woman.  Thus, she was not forced to ‘choose between religious convictions and job.’”

 

Young found support for his conclusion in the ruling by U.S. District Judge David Bunning against Rowan County, Kentucky, Clerk Kim Davis last year, and quoted from that decision. Although Davis had tried to rely upon the 1st Amendment rather than Title VII, this would not lead to any different result.

 

“To be clear,” wrote Young, “the court does not question the sincerity of Summers’ beliefs. She maintains that ‘it’s not God’s law to have [same-sex couples] marry,’ and has pointed to select verses from the Bible in support.  That is fine; she has every right to believe that.  However, that belief, no matter how sincerely espoused, does not objectively conflict with the purely administrative duty to process marriage licenses.  Summers’ desire to avoid handling forms related to activities of which she personally disapproves is not protected by federal law.  Title VII is not a license for employees to perform only those duties that meet their private approval.”

 

Young wrote that Summers’ conflict was with “federal law,” not with “an employment requirement.” “While Whitis may have instructed Summers to process same-sex marriage licenses,” he wrote, “that directive was merely an effort to comply with the Seventh Circuit’s mandate, which expressly forbids the state of Indiana from enforcing its same-sex marriage ban.  In other words, the requirement that Summers process same-sex marriage licenses was one imposed by a federal court and merely implemented by Defendants.” Thus, it could not be the basis for an employment discrimination charge.

 

“In the end,” wrote Young, “Summers should have put her personal feelings aside and heeded the command of her employer.” While she was free to disagree with the federal courts, “that did not excuse her from complying” with their decisions, and so Whitis and the County were “within their rights” to terminate her employment.

 

Judge Young was appointed to the court by President Bill Clinton in 1997 and unanimously confirmed by the Senate. He was chief judge of the district when he struck down Indiana’s same-sex marriage ban in 2014, and just stepped down from the chief judge position this November.

 

 

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Arkansas Supreme Court Rejects Challenge to Discriminatory Birth Certificate Statutes

Although the U.S. Supreme Court issued a sweeping ruling for marriage equality in Obergefell v. Hodges on June 26, 2015, pockets of resistance remain in the states. The latest manifestation of this phenomenon comes from Arkansas, where the state’s Supreme Court ruled on December 8 by a 4-3 vote that same-sex couples do not enjoy the same constitutional rights as opposite sex couples when it comes to listing parents on birth certificates.  In Smith v. Pavan, 2016 Ark. 437, the majority of the court rejected a constitutional challenge to two Arkansas statutes under which wives of birth mothers are denied equal treatment with husbands of birth mothers in the matter of being listed as parents on birth certificates.  Three members of the court disagreed with the majority to varying extents in separate opinions.

 

The case was brought by three lesbian couples. Two of the couples, Marisa and Terrah Pavan and Leigh and Jana Jacobs, were married out-of-state and then had a child born in their residential state of Arkansas.  The third couple, Courtney Kassel and Kelly Scott, had a child in Arkansas and married shortly thereafter.  In all three cases, the Department of Health, headed by named-defendant Dr. Nathaniel Smith, refused to list the spouse of the birth mother on the birth certificate, relying on gender-specific Arkansas statutes that provide for listing husbands but not wives of birth mothers.

 

The women, represented by attorney Cheryl Maples with amicus assistance from the ACLU of Arkansas and the national ACLU LGBT Rights Project, filed suit against Smith. Pulaski County Circuit Judge Timothy Davis Fox accepted their argument that Dr. Smith, who was also a named defendant in Wright v. Smith, the Arkansas state court marriage equality case, was bound by the decision in that earlier case, which had struck down as unconstitutional not only the state’s ban on same-sex marriage but also “all other state and local laws and regulations identified in Plaintiff’s complaint or otherwise in existence to the extent they do not recognize same-sex marriages validly contracted outside Arkansas, prohibit otherwise qualified same-sex couples from marrying in Arkansas or deny same-sex married couples the rights, recognition and benefits associated with marriage in the State of Arkansas.”

 

The case appeared clear to Judge Fox. The final court order issued in Wright v. Smith required that Arkansas treat same-sex marriages as equal to different-sex marriages in all respects under state law, and Smith was precluded from trying to re-litigate that issue in this case.  Smith’s appeal from the trial court’s ruling in Wright v. Smith was pending when the U.S. Supreme Court announced its ruling in Obergefell, after which the Arkansas Supreme Court dismissed that appeal as moot, ending a stay that it had granted on the trial court’s Order.

 

Furthermore, Judge Fox found support for his decision in favor of the women in the Obergefell opinion itself, noting that Justice Anthony Kennedy had mentioned “certificates of birth and death” as one of the benefits of same-sex marriage. Kennedy had written:

 

“The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. . . . The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”

 

To Judge Fox, this meant that married same-sex couples are entitled to the same rights of marriage as different sex couples, including the same spousal rights regarding birth certificates.

 

But a majority of the Arkansas Supreme Court insisted that the Obergefell decision, and the state court Wright decision, had not decided this issue. An opinion by Justice Josephine Linker Hart for four members of the seven-member court insisted that the only questions decided by these prior cases were whether same-sex couples could marry or have their out-of-state marriages recognized.   Viewed this way, the Wright v. Smith decision would not preclude Smith from applying Arkansas statutes to refuse to list the same-sex spouses on birth certificates unless the court were to decide independently that doing so violated the constitutional rights of the spouses.  This the court was unwilling to do.

 

Since Judge Fox had ordered Smith to issue new birth certificates listing both mothers, and that order had not been stayed, the Supreme Court decided that the case should be treated as a facial challenge to the constitutionality of the statutes. Because the plaintiffs had actually received the birth certificates they sought, any “as applied” challenge was deemed to be moot.

 

One of the challenged statutes provides that when a child is born to a married woman, her husband will be listed on the birth certificate as the child’s father unless a court has determined either that another man is the child’s biological father, or the mother, the biological father, and her husband have executed affidavits establishing that the husband is not the biological father. The other challenged statute provides that when a child is born to an unmarried woman, only she will be listed on the original birth certificate, but a new birth certificate can be issued listing the biological father if the child is “legitimated” by the biological parents subsequently marrying, or a court determines who is the biological fathers.

 

The court insisted that both statutes are clearly intended to record historical facts about the biological parents of a child, and that the state has a legitimate reason to want the original birth certificate to correctly list these historical facts. “In our analysis of the statutes presented above,” wrote Justice Hart, “it is the nexus of the biological mother and the biological father of the child that is to be truthfully recorded on the child’s birth certificate.

 

Quoting from an affidavit submitted by Melinda Allen, the state’s Vital Records Registrar, the court adopted her contention that the recordation of biological parents was “critical” to the department’s “identification of public health trends,” and she asserted that “it can be critical to an individual’s identification of personal health issues and genetic conditions.” She noted that in adoption and surrogacy situations, the biological parents are listed on original birth certificates, which are then “sealed” when new certificates are issued showing adoptive or intended parents, since the state deems it essential that a permanent record of biological parentage be preserved.

 

Justice Hart said that Judge Fox had “conflated distinct categories of marriage, parental rights, and vital records,” and that the issue in this case was not who can be a parent but rather who must be listed on a birth certificate. “On the record presented,” she wrote, “we cannot say that naming the nonbiological spouse on the birth certificate of the child is an interest of the person so fundamental that the State must accord the interest its respect under either statute.”

 

As to an equal protection challenge, the court found that the same-sex spouse is not similarly situated to the husband, and “it does not violate equal protection to acknowledge basic biological truths”. In this case, the majority found, “the challenged classification serves important governmental objectives” – the factual record of biological parentage for the reasons asserted by Melinda Allen in her affidavit.

 

The court pointed out that there was another statute that might be invoked in this situation, governing intended fathers in cases involving “artificial insemination.” In such cases, if the mother’s husband consented in writing to her insemination with donated sperm, the child would be “deemed the legitimate natural child of the woman and the woman’s husband” and he would be listed on the birth certificate.

 

At oral argument in this case, counsel for Dr. Smith conceded that this statute violated equal protection, since in this case both the husband and the same-sex spouse of the birth mother were not biologically related to the child, and thus similarly situated.   Smith’s attorney argued that if a case was brought under that statute, the court “could resolve many of the concerns raised by the [women] by amending the wording of the statute,” but Justice Hart rejected this suggestion, insisting that “this court is not a legislative body and it cannot change the wording of the statute.”  Furthermore, since the plaintiffs did not invoke the artificial insemination statute in this case – possibly because they did not have written authorization for the insemination procedure as required by the statute – the trial court did not rule on the statute’s constitutionality, so the issue of its constitutionality was not properly before the court.

 

In a concluding paragraph, the court “admonished” Judge Fox for having made a public statement that if the Arkansas Supreme Court granted a stay of his order in this case, it would be depriving people of their constitutional rights, and that the court had deprived people of their constitutional rights in a separate matter. “A remark made to gain the attention of the press and to create public clamor undermines ‘public confidence in the independence, integrity, and impartiality,’ not only of this court, but also of the entire judiciary,” wrote Hart, and Fox was formally “admonished” for “his inappropriate comments made while performing the duties of his judicial office.”

 

Chief Justice Howard Brill, in a separate opinion, agreed with the majority that Obergefell was a narrow holding that same-sex couples have a right to marry, and thus did not directly settle the question of birth certificates. However, he wrote, “The question here is the broader impact of that ruling as it affects birth certificates,” and, he wrote, “The logical extension of Obergefell, mandated by the Due Process Clause and the Equal Protection Clause, is that a same-sex married couple is entitled to a birth certificate on the same basis as an opposite-sex married couple,” because “the right to a birth certificate is a corollary to the right to a marriage license.”  He prefaced his opinion with a quote from the lyrics of Bob Dylan’s song “The Times They Are A-Changin’,” and concluded by arguing that it was up to the legislature to amend the existing laws to come into compliance with Obergefell.  “The times they are a-changin’,” he wrote.  “All three branches of the government must change accordingly.  It is time to heed the call.”

 

In her separate opinion, Justice Rhonda K. Wood joined the court in reversing the case on the ground of “prudential-mootness” because the plaintiff couples had received their revised birth certificates on the order of Judge Fox. At the same time, she wrote, “I encourage the legislature to address the relevant birth certificate statutes in the upcoming session to avoid a plethora of litigation and confusion for the courts.”  She pointed out that this litigation had actually stimulated the Health Department to modify its procedures, noting that Allen’s affidavit stated that the department “will issue birth certificates listing both same-sex parents if the hospital submits documentation reflecting that fact,” although the parties disputed at oral argument about how consistently this new policy was being implemented.  She also noted Smith’s concession at the oral argument that the artificial insemination statute, as written, violated equal protection, and that if the department administers it appropriately, “any legal challenge in this regard would be moot.”  Judge Wood emphasized the fluidity of the situation on the ground and the likelihood that things had changed since Allen made her affidavit.  This, to her, would justify the court as treating the appeal as moot and sending the case back to the circuit court for a new hearing to determine the current facts, which might make it unnecessary to issue a constitutional ruling.  However, departing from the majority, she wrote that in her view, “states cannot constitutionally deny same-sex couples the benefits to marital status, which include equal access to birth certificates,” and suggested that the legislature should amend the statute to comply with this conclusion.

 

Justice Paul Danielson dissented totally from the majority opinion, stating that he would affirm Judge Fox’s ruling, agreeing that Smith and Obergefell settled the matter and the statutes as written were clearly unconstitutional.

 

Justices Wood and Danielson dissented from the majority’s admonishment of Judge Fox. Justice Wood merely stated that she had not “participated” in the majority’s decision to admonish the judge. Justice Danielson wrote at length, arguing that the admonishment violated Judge Fox’s constitutional free speech rights, quoting a U.S. Supreme Court decision stating that “the operations of the courts and the judicial conduct of judges [are] matters of the utmost public concern.” The Supreme Court “has cautioned against repressing speech under the guise of promoting public confidence in the integrity of the judiciary,” wrote Danielson.  “In short,” he concluded, “the fact that members of this court have personally taken offense to the circuit judge’s remarks is not a sufficient basis for suggesting that those remarks violate our disciplinary rules.”

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Colorado Appeals Court Reverse’s Teen’s Conviction in “Fighting Words” Analysis

Reversing a ruling by Boulder County District Judge Ingrid S. Bakke, a panel of the Court of Appeals of Colorado voted 2-1 that a 14-year-old middle school student did not commit an actionable “breach of the peace” when he drew a picture of “an ejaculating penis” over the cellphone photo he took of one of his classmates and then exhibited it to the subject as well as other friends. People of the State of Colorado, Petitioner-Appelleee, In the Interest of R.C., Juvenile-Appellant, 2016 COA 166, 2016 Colo. App. LEXIS 1612, 2016 WL 6803065 (Nov. 17, 2016).

Writing for the panel, Justice Elizabeth Harris related the facts: “During class one afternoon, R.C. used his cell phone to take a photo of L.P. Then, using the mobile application Snapchat, he drew a picture of an ejaculating penis next to L.P.’s mouth.  R.C. showed the altered photo to L.P. and three other friends.  R.C. was ‘giggling’ when he showed the other boys the photo. One of the other boys laughed too, but L.P. felt ‘bad.’  About five minutes later, class ended and the boys went to lunch.  In the cafeteria, a few other students looked at the photo and laughed, which made L.P. feel even worse.  Two of L.P.’s friends told R.C. to apologize and R.C. agreed to, but when he approach L.P., L.P. pushed R.C. away.  L.P. and his friends reported the incident to the principal later that day.”

In the way these things escalate in the age of “zero tolerance” for bullying conduct, the principal instituted criminal charges against R.C. under the disorderly conduct statute, and District Judge Bakke ruled “that R.C. knew that his drawing would make L.P. feel humiliated and ashamed and would have tended to incite an immediate breach of the peace, in large part because the drawing implied that L.P. was ‘homosexual or behaves in that kind of behavior or has some sort of demeanor about that.’ The court sentenced R.C. to three months of probation, therapy, and eight hours of work crew.”

The statute in question, Colorado R.S. Sec. 18-9-106(1)(a), provides that a person commits disorderly conduct if he or she “intentionally, knowingly, or recklessly:. . . makes a coarse or obviously offensive utterance, gesture, or display in a public place and the utterance, gesture, or display tends to incite an immediate breach of the peace.”

In reversing the conviction, the majority of the appeals court held that the disorderly conduct statute has been narrowed in interpretation to cover “fighting words” only, and that what R.C. had done failed to come within that narrow class of communicative conduct that is subject to criminal prosecution. Dissenting Judge John Webb sharply disagreed, asserting, with Judge Bakke, that fighting words include those that “inflict injury” even when they may not incite immediate violence.  The majority rejected this reasoning, pointing out, strikingly, that the Supreme Court has so shrunken the category of “fighting words” that it has “overturned every single fighting words conviction it has reviewed since Chaplinsky [the historic Supreme Court case recognizing a “fighting words” exception to First Amendment protection] was decided in 1942.”

“The district court concluded that the drawing constituted fighting words because its display would tend to make the subject of the photo feel humiliated and ashamed,” wrote Judge Harris. “But speech that embarrasses or disgraces another is insufficient to qualify as fighting words.  Even vulgar and insulting speech that is likely to arouse animosity or inflame anger, or even to provoke a forceful response from the other person, is not prohibited,” she continued, pointing to a 10th Circuit case from 1993, Cannon v. City of Denver, 998 F.2d 867.  “Rather, fighting words are limited to ‘speech that, in the context in which it is uttered, is so inflammatory that it is akin to dropping a match into a pool of gasoline.’”  (This vivid quote is from a 2015 Vermont Supreme Court decision.)

“Our position would not change even if we believed, as the district court apparently did, that the photo might have implied that L.P. was gay. Indeed, this assumption was the basis of the court’s ruling; if R.C. had drawn a mustache or a big nose on the photo, the court explained, it would not have amounted to disorderly conduct, even, presumably, if the big-nose photo had hurt L.P.’s feelings.  But R.C. drew a picture that was ‘sexual in nature’ and went ‘directly to L.P.’s gender being male,’ which made the photograph much more offensive, according to the court; so much so that, upon seeing the photo, L.P. would reasonably have been incited to violence.”

Two problems with this, wrote Harris: “First, there was, in fact, no evidence that R.C. intended to imply that L.P. was gay or that L.P. perceived the photograph as any sort of commentary on his sexual orientation. Second, even if we assume such commentary, we cannot conclude that, as a matter of law, the mere insinuation that a person is gay amounts to ‘fighting words.’  We disagree with the district court, and the dissent, that the suggestion of homosexuality or homosexual conduct is so shameful and humiliating that it should be expected to provoke a violent reaction from an ordinary person.”

Furthermore, the court doubted that such a characterization would be appropriate in the full context of what happened. The court found no authority to support the idea that the label “fighting words” automatically applied to this particular doctored photo.  And, indeed, L.P. did not react violently, and “there was no evidence that R.C.’s display of the photo caused any sort of commotion or that it was even noticed by other children or the teacher.”  In this case, said the court, disagreeing with the dissenter, “R.C.’s display of the photo did not amount to fighting words because it was not likely to incite an immediate breach of the peace.  We certainly have not foreclosed the possibility that, under other circumstances, references to a person’s sexual orientation might indeed rise to the level of fighting words.”

The court also rejected the state’s argument that “the photo was akin to R.C. calling L.P. a ‘cocksucker,’ a term that by its mere utterance qualifies as fighting words.” Responded Harris, “The word ‘cocksucker’ is not an innocuous expression; it is vulgar and profane.  But uttering the word is not a crime unless its mere utterance would tend to provoke a reasonable person to immediately retaliate with violence.”  Although the state could point to several past cases where that word had been deemed a “fighting word” in context, those cases were all distinguishable from the circumstances of this case, and the court found that “more recent cases suggest that ‘cocksucker’ has lost its former incendiary quality.”  Indeed, in some circles it is now a term of endearment as “street language,” although Harris dropped a footnote pointing out how Maine Governor Paul LePage recently inspired criticism — but no criminal consequences — for using the word directed in a communication to a legislative opponent, and commented, sarcastically, “We are reluctant to hold a middle school student to a higher standard than the Governor of Maine.”

“A middle school student of average sensibilities and maturity might have told R.C. that the photo was not funny, as L.P.’s friends did, or reported the hurtful conduct to a school administrator, as L.P. and his friends did later that day. But the average person – even an average fourteen-year-old – would not be expected to fly into a violent rage upon being shown a photo of himself with a penis drawn over it.  R.C.’s display simply does not fall within the ‘exceedingly narrow’ class of insults for which violence is a reasonably expected response.”  The court found that a school administrator could discipline R.C. for such conduct, and that a state bullying statute even authorized principals to impose discipline in appropriate cases, but that criminal prosecution was definitely overdoing it.

Judge Webb dissented at length, concluding, “I would hold that the image R.C. created and circulated showing an ejaculating penis adjacent to L.P.’s mouth constituted fighting words. Therefore, I would deny it First Amendment protection and affirm the judgment of conviction.”

Public Defender Douglas K. Wilson and Deputy Public Defender Elizabeth Porter-Merrill represented R.C. in appealing his conviction.

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Mindless Bureaucracy Temporarily Foiled as District Judge Refuses to Dismiss Challenge to Gender-Binary Requirement on U.S. Passports

“Just because” is not a good enough answer when the question is whether the State Department’s Passport Office was “arbitrary or capricious” when it refused to process a passport application from an intersexual applicant who declined to check either M or F on a passport application.  U.S. District Judge Richard Brooke Jackson of the District Court in Colorado rejected the government’s motion to dismiss Dana Alix Zzyym’s challenge to the gender binary requirement under the Administrative Procedure Act on November 22 in Zzyym v. Kerry, 2015 Westlaw 6879827, while reserving any ruling on the plaintiff’s constitutional claims.  Instead, Judge Jackson returned the matter to the Department for “reconsideration.”  Zzymm is represented by attorneys from Lambda Legal

Zzyym identifies as an intersex person, who was born “with sex characteristics that do not fit typical binary notions of bodies designated ‘male’ or ‘female,’” according to an explanation contained in the complaint. To avoid having to use sex-based pronouns, the court refers to Zzyym through the opinion by the plaintiff’s first name, Dana, as we will do in reporting on the case.  In a press release about the court’s ruling, Lambda Legal mentions that Dana’s birth certificate says “unknown” in the space for sex, reflecting the ambiguous genitalia that are sometimes characteristic of intersex newborns.

Dana applied for a passport in 2014 and wrote the word “intersex” below the “sex” category on the application form, rather than checking the box labeled male or the box labeled female. Dana identifies as neither.  In a separate letter, Dana explained this and requested that an X be used as an acceptable marker in the sex field, to conform to International Civil Aviation Organization (ICAO) standards for machine-readable travel documents.  Some other countries have adopted the X for documents issued to intersexual people as well as transgender people who have rejected a gender binary choice in describing their sexual identity.

The Passport Office reacted like a typical hide-bound bureaucracy and rejected the application immediately, without any evident thought or policy consideration, merely explaining that “the Department of State currently requires the sex field on United States passports to be listed as ‘M’ or ‘F’” and that the Department would be “unable to fulfill your request to list your sex as ‘X’.” The Department noted that Dana had submitted a copy of Dana’s driver’s license which identified Dana as “female” and offered to list Dana that way, or, if Dana could supply a doctor’s letter certifying such, they could list Dana as “male.”

Dana rejected this suggestion, submitting a letter to the Department appealing the Passport Office’s refusal to process the application, and included sworn documents from physicians with the U.S. Department of Veterans Affairs Medical Center in Cheyenne, Wyoming, where Dana had received treatment as a Navy veteran, verifying Dana’s sex as “intersex.” Dana also met with staff members at the Colorado Passport Office to explain that a passport identifying Dana as either male or female would be inaccurate.  The Department rejected Dana’s appeal, providing no explanation other than its original response, but suggesting that Dana could obtain a passport by submitting a new application and checking the box for “M” or “F”.  Dana’s request for further reconsideration was rejected, and this lawsuit followed.

Dana attacked the State Department’s position on several grounds. First, Dana relied on the Administrative Procedure Act, a statute that forbids administrative agencies from making decisions that are “arbitrary or capricious” in their interpretation and application of their statutory authority.  Dana also alleged that the Department’s requirement that passport applicants identify as male or female exceeded the authority Congress delegated to the Department in administering the passport program, as there is no statutory requirement that gender be listed on a passport.  (Indeed, prior to 1976, the passport application did not require applicants to indicate gender.)  Dana also alleged that the refusal to process the application was a violation of rights protected by the due process and equal protection obligations imposed on the federal government by the 5th Amendment of the Bill of Rights, and asked the court to order the Department to issue Dana a passport, as Dana is otherwise fully qualified to get one.  The State Department filed a motion seeking judgment on the APA claims and dismissal of the remaining claims in the Complaint, and the court held a hearing on July 20.

Judge Jackson decided to focus on the APA claim in his November 22 Order, reserving judgment on the constitutional claims. The essence of the arbitrary and capricious standard is to require the government to have a reason for its policy.  “I find that the administrative record contains no evidence that the Department followed a rational decisionmaking process in deciding to implement its binary-only gender passport policy,” wrote the judge.  He noted that the “policy” to which the Department referred in rejecting Dana’s application was actually a “collection of rules pertaining to gender contained within the Foreign Affairs Manual,” and that “these rules to not explicitly state that the Department cannot issue a passport containing an alternative gender marking.  Rather, they simply explain how the Department deals with different issues related to gender on passport applications.  The rules collectively do not contemplate the existence of a gender other than male or female.”

What should an agency do when presented with a “new issue” that has not been previously resolved? Under the Administrative Procedure Act, it should undergo a reasoned examination of the issue and come forth with a policy that makes sense in light of any relevant statutory requirements and the reasons for which the policy exists.  If the purpose of a passport is to accurately identify the person to whom it is issued and to certify that person’s status as a citizen, is it sensible to insist on identifying a person as having a sex that both the person and qualified medical authorities reject as inaccurate?

Judge Jackson pointed out that the Department “simply justified the Department’s decision to deny Dana’s application by referring to” its policy. After litigation commenced, the Department realized that it had to come up with some sort of rational justification for its policy, and submitted a declaration from a Division Chief, Bennet S. Fellows, but Judge Jackson found that the explanation “falls short.”  Much of it merely describes the background information underlying the policy, such as that the Department considers sex to be part of the “key data” necessary to identify somebody, and that an application without a sex designation is thus “incomplete.”  Fellows pointed out that no other federal agency that issues citizenship documents recognizes the use of a “third marker,” but Jackson said that none of this “rationalizes the decisionmaking process behind this policy.”

Fellows also insisted that the “key data” had to be supported by documentation from other official sources, such as “birth certificates, driver’s licenses, social security cards, third-party affidavits, and/or other documentation consistent with the information submitted by the applicant,” but that none of these sorts of documents “currently authorize the use of ‘X’ or any marker other than ‘M’ and ‘F’.”

Jackson found this rationale “unpersuasive” because “it is entirely self-fulfilling” and the Department’s own response to Dana’s application indicated that it would accept an application showing either “M” or “F” depending whether Dana sought to rely on Dana’s driver’s license (showing “female”) or a physician’s certification of Dana’s gender as “male.” That is, the Department was not concerned with accuracy, as such, but rather with being able to fit into its predetermined formal classifications.  The Fellows declaration also argues that the computer chip embedded in identity documents only accommodates “M” or “F” as gender identification.  “To the extent that is just another recitation of the Department’s current policy,” wrote the judge, “it does not advance the ball.”  If that means that reprogramming the chips to accept additional categories would be necessary, “that does not explain why the government first began to require passport applications to choose either sex in 1976, but it would at least provide a reason for the Department’s reluctance to change course now,” he continued.  “In any event, the Department hasn’t yet made that argument or attempted to show why it would consider that to be worse than accommodating this presumably small population of intersex individuals.”

The declaration also argued that it was necessary for U.S. passport information to “sync with law enforcement databases that exclusively use binary gender systems,” but it concedes that not every such database actually includes sex designations and that “a field left blank in the system is assumed to reflect that the particular datum is unknown or unrecorded, and not to indicate ‘intersex’ or other possible alternative categorization.’” Jackson expressed puzzlement, asking why if this is a critical factor, the Department was willing to record Dana as “male” knowing that Dana had state identification documents – the driver’s license – listing Dana as “female”?  “How does the Department sync a transgender individual’s passport information with law enforcement records that might list that very same passport holder as the opposite sex,” he asked.  “Without answers to these questions, I cannot conclude that the government rationally decided to formulate a binary-only gender policy.”

The Fellows declaration also suggested that the holder of a U.S. Passport without a male or female gender designation or with some third marker, such as “X”, might encounter difficulties in travel to other countries that insisted on a binary classification. “Is this pure speculation,” asked Jackson. “Is it a fact that other countries validate the information contained within a passport, as opposed to simply verifying the authenticity of the passport itself? And if a third gender marker did lead to inconvenience or difficulty entering other countries, isn’t that solely the problem of the passport holder who made the choice?  The current record does not explain why these factors rationally support the policy in place.”

Judge Jackson found that this first attempt by the Department to supply a rationale for its position was lacking. “That is not to say that it can’t be done,” he continued, “but the Department’s first effort to get over the arbitrary and capricious hump was not convincing.”  Jackson’s remedy was to return the matter to the Department for “reconsideration,” without dismissing the complaint or ruling on Dana’s constitutional claims.

Given the pending change of administration, there remains some question whether a second attempt will be made by incumbent officials to satisfy the court before January 20, 2017, or whether they will just capitulate and, consistent with the Obama Administration’s decision a few years ago to liberalize the procedure for allowing transgender people to change the sex designation on their passports, accept the reality of people who do not identify either as male or female and figure out a way to accommodate them on U.S. passports, as some other countries have done.   Otherwise, the task of responding to the court’s Order will be left to officials of the incoming administration.

Judge Jackson, previously a Colorado state court judge, was appointed to the federal bench by President Barack Obama in 2010, and was confirmed by unanimous consent of the Senate in 2011.

 

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Another Federal Judge Lets Gay Plaintiff Pursue Discrimination Claim under Title VII

One of the nation’s most senior federal trial judges, Warren W. Eginton (age 92) of Connecticut, rejected an employer’s motion to dismiss a Title VII sex discrimination claim brought by an openly gay employee in a November 17 ruling.  Boutillier v. Hartford Public Schools, 2016 U.S. Dist. LEXIS 159093, 2016 WL 6818348 (D. Conn.).  Eginton, who was appointed by Jimmy Carter in 1979 and has been a senior judge (semi-retired) since 1992, accepted the argument that Title VII can be interpreted to ban sexual orientation discrimination, despite prior contrary rulings by the U.S. Court of Appeals for the 2nd Circuit, to which his decision can be appealed.

 

Eginton’s ruling came less than two weeks after a federal district judge in Pennsylvania, Cathy Bissoon, appointed by Barack Obama, issued a similar ruling in EEOC v. Scott Medical Health Center, bucking contrary appellate precedent in the 3rd Circuit Court of Appeals.  Could this be the beginning of a trend?

 

Lisa Boutillier, a lesbian who formerly taught in the Hartford Public School system, claimed that she had suffered discrimination and retaliation because of her sexual orientation and physical disability in violation of the Connecticut Fair Employment Practices Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act.  Because Connecticut law explicitly bans sexual orientation and disability discrimination, she could have brought her case in state court and, by confining her claims to state law, she could have avoided ending up in federal court where adverse circuit precedent might have doomed her Title VII claim.  Instead, however, her attorney, Margaret M. Doherty, included the federal claims and filed in the U.S. District Court, prompting the school district to file a motion arguing that Title VII does not cover this case.  The case could remain in Judge Eginton’s court only if he found that Boutillier could assert a potentially valid claim under either or both of the Americans with Disabilities Act or Title VII of the Civil Rights Act. Eginton concluded that Boutillier failed to allege facts sufficient to qualify as a person with a disability under the ADA, so her ability to maintain the action in federal court turned entirely on whether she could allege a sex discrimination claim under Title VII.       There is little doubt from her factual allegations that if Title VII covers this case, Boutillier will have stated a potentially valid claim and avoid summary judgment against her.

 

Judge Eginton devoted most of his opinion to the Title VII question.  He sharply disputed the Second Circuit’s prior rulings refusing to allow sexual orientation discrimination claims under Title VII.  “Early interpretations of Title VII’s sex discrimination provisions reached illogical conclusions based on a supposed traditional concept of discrimination, which, for example, determined that discrimination based on pregnancy was not discrimination based on sex,” he began his analysis, noting that Congress had overruled that mistaken early Supreme Court decision by amending Title VII.  He said that the pregnancy case “and other similar decisions that imposed incongruous traditional norms were misguided in their interpretations regardless of whether Congress had been able to overrule them.”  He charged that these early cases were mistaken because “they failed to take the ordinary meaning of the Act’s text to its logical conclusions . . . .  The converse of the majority’s decision,” wrote Eginton, “and equally absurd, would be to hold that an exclusion in coverage for prostate cancer does not discriminate against men based on sex.  Such conclusion represent a fundamental failure of ordinary interpretation.”

 

He found a similar error of reasoning in the Second Circuit’s approach to sexual orientation claims.  He noted that when Congress overruled the pregnancy case, the House Report stated: “It is the Committee’s view that the dissenting Justices correctly interpreted the Act.”  The 2nd Circuit has premised its view on lack of legislative history showing that Congress intended to protect gay people from discrimination when it included “sex” in Title VII in 1964.  “Acknowledging that the legislative history on whether sexual orientation should be included in the category of sex under Title VII is slight,” wrote Eginton, “it is difficult to glean the absence of prior intention merely from subsequent efforts by Congress to reinforce statutory civil rights protections” by adding “sexual orientation” to federal law, as the 2nd Circuit has repeatedly done.  He pointed out that the Supreme Court has cautioned against relying on legislative inaction as an indication of legislative intent.

 

More importantly, however, he wrote, “straightforward statutory interpretation and logic dictate that sexual orientation cannot be extricated from sex: the two are necessarily intertwined in a manner that, when viewed under the Title VII paradigm set forth by the Supreme Court, place sexual orientation discrimination within the penumbra of sex discrimination.”

 

The judge pointed out the inconsistency between the 2nd Circuit’s approach to sexual orientation and its cases about race discrimination.  The 2nd Circuit has accepted the argument that it is race discrimination when an employer discriminates against an employee for engaging in an interracial relationship.  “The logic is inescapable,” wrote Eginton: “If interracial association discrimination is held to be ‘because of the employee’s own race,’ so ought sexual orientation discrimination be held to be because of the employee’s own sex.”  The 2nd Circuit’s cases are “not legitimately distinguishable,” he argued.  “If Title VII protects individuals who are discriminated against on the basis of race because of interracial association (it does), it should similarly protect individuals who are discriminated against on the basis of sex because of sexual orientation – which could otherwise be named ‘intrasexual association.’”

 

He pointed out that the Supreme Court’s key decision in Price Waterhouse v. Hopkins “bolsters” his conclusion, in holding that “sex stereotyping could constitute discrimination because of sex. . .  Indeed, stereotypes concerning sexual orientation are probably the most prominent of all sex related stereotypes, which can lead to discrimination based on what the Second Circuit refers to interchangeably as gender non-conformity.”  The 2nd Circuit has refused to extend this reasoning to sexual orientation cases, however, using an analysis that Eginton maintains is “inherently unmanageable, as homosexuality is the ultimate gender non-conformity, the prototypical sex stereotyping animus.”

 

He quoted extensively from a recent 7th Circuit decision, Hively v. Ivy Tech Community College, where a 3-judge panel of that court dismissed a sexual orientation discrimination claim because of circuit precedent, but two members of the panel submitted an opinion suggesting that the circuit should be reconsidering its position.  Since then, the 7th Circuit has voted to grant “en banc” review in the case, with reargument scheduled for November 30.

 

Eginton pointed out the paradox stemming from the 2nd Circuit’s position.  “Essentially, employers are prohibited from discriminating against employees for exhibiting stereotypical gay behavior, yet, at the same time, employers are free to discriminate against employees for actually being gay.”  Thus, Eginton, concluded, he would follow the lead of the 2nd Circuit’s interracial discrimination case instead of its past dismissal of sexual orientation discrimination claims “by interpreting the ordinary meaning of sex under Title VII to include sexual orientation, thereby obviating the need to parse sexuality from gender norms.”  Eginton pointed out that the EEOC adopted this view in 2015, the 7th Circuit agreed to a full rehearing in Hively, and a 2nd Circuit panel will soon rule on appeals from trial court dismissals of sexual orientation claims in several cases from New York.  While the 2nd Circuit’s expected ruling on those appeals “may ultimately decide the fate of plaintiff’s Title VII claims,” he wrote, “in the meantime, summary judgment will be denied.  Plaintiff has adequately established a right to protection under Title VII.”

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