New York Law School

Art Leonard Observations

Federal Magistrate Refuses to Dismiss Gay Pilot’s Title VII Sex Discrimination Claim

U.S. Magistrate Judge Michael E. Hegarty refused to dismiss a claim by a gay airline pilot that his former employer discriminated against him in violation of Title VII of the Civil Rights Act of 1964 by misrepresenting the reason for his discharge, thus making him virtually “unemployable” in the industry.  Judge Hegarty’s May 11 ruling in Deneffe v. Skywest, Inc., 2015 U.S. Dist. LEXIS 62019, 2015 WL 2265373 (D. Colo.), appears to mark a further extension of the “gender stereotyping” theory under which federal courts have begun to find protection against discrimination for gay plaintiffs under Title VII’s ban on sex discrimination.

When Congress passed the Civil Rights Act in 1964, the House approved a floor amendment to add discrimination because of “sex” to the list of forbidden grounds of discrimination covered by the bill and the Senate acquiesced.  Because it was added as a floor amendment and there was no extended debate, there is little in the legislative history to indicate what Congress intended to cover by adding “sex,” and during the early years of the law, both the Equal Employment Opportunity Commission and the federal courts concluded that Congress did not intend to forbid discrimination because of sexual orientation or gender identity.

This narrow view of sex discrimination began to erode in 1989, when the Supreme Court accepted the argument that discriminating against a person because of their failure to conform to “sex stereotypes”  could be a violation of Title VII.  In Price Waterhouse v. Hopkins, Justice William J. Brennan wrote for a plurality of the Court that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group,” and he wrote, “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”  Justice Brennan also used the word “gender” several times in the opinion when referring to the forbidden grounds of discrimination under Title VII.

Taking their cue from this decision, some lower federal courts began to reconsider the earlier view that Title VII could not be construed to protect gay or transgender people from employment discrimination, at least in cases where it was plausible to claim that they suffered discrimination because of failure to comply with gender stereotypes.   Within the past few years, federal appeals courts have ruled that transgender plaintiffs could bring claims under both Title VII and the Equal Protection Clause, and the EEOC changed its position, at least regarding transgender discrimination claims, just a few years ago.  This evolving view has been slower to endorse sex discrimination claims by gay employees, but Judge Hegarty’s May 11 ruling adopts an interesting theory.

In his amended complaint, wrote Hegarty, Federic  Deneffe asserted that during many flights he piloted, “other pilots jokingly insinuated that male flight attendants were homosexual, referring to them by the nickname of ‘Susie.’  Deneffe once heard another pilot refer to male flight attendants as ‘the little faggots who bring us our coffee.’  Other male pilots also commented, ‘I am not getting laid this trip,’ and ‘I will make sure I double lock my room,’ when only male attendants were on a flight.  Male pilots frequently made disparaging remarks about openly gay men in general, with comments such as ‘Freddie Mercury was so talented, it’s such a shame he’s gay.’”

Deneffe also alleged that “male pilots regularly engaged in banter about their heterosexual exploits.  At least one pilot sent Deneffe text messages detailing his sexual exploits with a woman.  Deneffe was conspicuously silent when his co-workers discussed their sexual activities with women, made homosexual jokes, or talked about their wives and children.’”  Deneffe listed his same-sex partner as the beneficiary for his flight privileges with the airline when he was hired, and took one or two trips a month with his partner.  He claimed that other pilots regularly saw him and his partner at the airport and on flights together, and that he had talked about his sexual orientation with a female pilot, who happened to be openly lesbian (and who made some adverse comments about Deneffe on an evaluation form).

Deneffe was astonished by his sudden termination, because he had passed a satisfactory review and had never been in an accident.  His attempt to ascertain the reason for his discharge was unsuccessful, but when he applied to other airlines and authorized SkyWest to release his employee records as required by regulations, he was stunned to learn that the SkyWest form stated “Performance/Inability” and indicated he was “Ineligible for Rehire.”   He was unsuccessful in gaining employment as a pilot, and was told by one airline recruiter that “with a termination like that, we’re not to take you” or words to that effect.

He sued under both Title VII and the Age Discrimination Act, but suffered dismissal of his discrimination claim regarding the discharge for reasons not mentioned in Judge Hegarty’s  May 11 decision.  However, the judge allowed him to file an amended complaint based on the statements in the employee records.  SkyWest moved to dismiss the amended complaint, arguing that sexual orientation discrimination is not covered under Title VII and that the ban on employment discrimination would not extend to this situation in any event.

Judge Hegarty rejected both of SkyWest’s arguments.

Although the judge acknowledged that the 10th Circuit Court of Appeals, whose precedents would bind him, “has not recognized a Title VII claim for discrimination based on sexual orientation,” he found that “Deneffe’s Title VII claim is premised on Deneffe’s failure to conform to gender stereotypes,” a theory that had been recognized by the 10th Circuit in a case brought by a transgender plaintiff.

SkyWest argued that the complaint failed to state how Deneffe did not  conform to male stereotypes.

“Deneffe counters that the following allegations support his claim,” wrote Hegarty. “(1) He did not take part in male braggodicio [sic] about sexual exploits with women as the other male pilots did; (2) he did not joke about gays as other male pilots did, (3) he submitted paperwork to SkyWest designating his male domestic partner for flight privileges, a benefit offered only for family members and domestic partners, and (4) he traveled on SkyWest flights with his domestic partner.  The Court finds that these alleged facts, together with Deneffe’s allegation that the conduct by other male pilots was ‘regular,’ ‘frequent,’ and occurred during ‘many’ flights, suffice to state a plausible claim that the chief pilot submitted a negative PRIA employment reference based on Deneffe’s failure to conform to male stereotypes.”

In other words, Deneffe’s aloofness from the other pilots’ macho banter could be considered, together with the actions he took revealing his sexual orientation and the other pilots’ homophobic comments about flight attendants, as a form of gender stereotype nonconformity sufficient to get him past a motion to dismiss his Title VII claim.

Hegarty also found precedents supporting the claim that adverse job references can be considered a form of employment discrimination under Title VII.   He pointed to a prior 10th Circuit ruling that “an act by an employer that does more than de minimis harm to a plaintiff’s future employment prospects can, when fully considering the unique factors relevant to the situation at hand, be regarded as an adverse employment action, even where plaintiff does not show the act precluded a particular employment prospect.”

Hegarty wrote that “determining a harmful, negative employment reference to be an adverse employment action is consistent with the substantive provisions of Title VII.  Certainly, a negative employment reference could adversely affect an individual’s conditions or privileges of employment and/or deprive an individual of employment opportunities.”  It is not necessary that somebody still have the status of an employee at the time when the adverse effect occurs, he concluded, finding that “the alleged adverse action by SkyWest of submitting PRIA forms (after Deneffe’s termination of employment) containing negative employment information that is distributed to potential employers” was sufficient to ground a discrimination complaint under Title VII.

Deneffe is represented by Rosemary Orsini of Berenbaum Weinshienk PC (Denver) and Subhashini Bollini of the Employment Law Group (Washington, D.C.).

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3rd Circuit Finds Federal Inspection Rules for Porn Producers Violate the 4th Amendment

A three-judge panel of the Philadelphia-based 3rd Circuit U.S. Court of Appeals ruled on May 14 that federal inspection rules for producers of sexually-related materials violate the 4th Amendment.  While rejecting a 1st Amendment challenge to the substance of rules requiring the producers to maintain written records of proof of age for all their performers, the court found that there was insufficient justification to allow government inspectors to demand access to those records without a search warrant.

The ruling in Free Speech Coalition, Inc. v. Attorney General, 2015 WL 2240346, upheld a decision by U.S. District Judge Michael M. Baylson that the requirements did not unconstitutionally abridge the free speech rights of the plaintiffs, but reversed on the 4th Amendment issue, and also suggested that in light of the 4th Amendment ruling, Judge Baylson may need to reconsider his 1st Amendment ruling regarding one of the challenged provisions requiring producers to make such records available for inspection at least 20 hours a week.  The court emphasized that the challenged regulations to not forbid the plaintiffs from producing sexually-oriented materials, but merely require that they compile and maintain evidence that all the depicted performers are 18 years old or over, making these records available to the government for inspection.

The lawsuit brought by a group of producers of sexually-oriented materials mainly distributed on the internet challenged two federal statutes and accompanying regulations that were intended by Congress to deal with the issue of child pornography.  Congress determined that merely banning the production and distribution of sexually-oriented depiction of children was insufficient to suppress it completely, so it enacted provisions requiring all producers of sexually-oriented materials to obtain and keep on file documentary proof of the age of all persons depicted in those materials, and to make these records available to federal inspectors without advance notice or any requirement to obtain a search warrant from a federal magistrate.  Law enforcement officials are normally prohibited from searching private businesses or residences for evidence of criminal activity without first obtaining a search warrant based on probable cause to believe that evidence of criminal conduct may be found in the place to be searched.

The court undertook an extensive review of Judge Baylson’s analysis under both constitutional amendments.  The opinion by Circuit Judge D. Brooks Smith goes into considerable detail about the evidence considered by the district court in reaching its conclusions.

The court decided that the documentation and record-keeping requirements would withstand the First Amendment challenge if the government could show that they were justified by the government’s legitimate interest in protecting children from being exploited through their use in the production and distribution of sexually-explicit materials.  The producers argued that most of the performers they use are clearly adults, and that the burden and expense of compiling and maintaining records of adult performers was not justified by the goal of protecting children.  Considerable testimony was offered both by the government and the producers on the question whether the wide-ranging requirements were really necessary.

The problem, of course, is that while some performers can clearly be classified as “mature adults” based on their physical appearance, and others can clearly be classified as minors on the same basis, there is a substantial middle ground where visual inspection of the final product may be inconclusive.  The district court accepted the producers’ argument that “it is their sincere belief that the use of sexually explicit material is a valued artistic endeavor and also serves valued educational motives,” and thus is constitutionally protected, but it also found that each of the producers “consistently used young-looking performers and almost all of their work had a commercial or profit motive.”  None of the producers was “an exclusive producer of sexually explicit depictions of ‘clearly mature’ adults.”  Indeed, the district court found that “youthful-looking performers are ubiquitous in the adult entertainment industry” and that materials purporting to show teenagers in a sexually-oriented way accounted for “approximately one-third of the material on pornography tube sites” on the internet.

As one government expert witness explained, “12, 13 and 14 year olds can appear to be much older than they are because they may experience early sexual and physical maturation” and this showed “the inability to determine chronological age from visual inspections.”  The expert testified that “even maturation experts will have a 2-5 year margin of error when trying to ascertain the age of a young adult, and that margin is greater for members of the public.”

Interestingly, although 29 inspections of producers’ age documentation had been made since 2006, the FBI, the agency charged with making these inspections, had effectively ceased doing them early in 2008 as litigation began in various courts around the country challenging the regulations, and government witnesses testified that there were no plans at present to resume making these surprise inspections.  On the basis of the inspections undertaken so far, however, FBI agents who testified in this case “believed it would be very difficult if not impossible to fabricate the records required by the Statutes in a 24-hour-period,” thus undermining the rationale for the statutory requirement that producers not be given advance notice of inspections and be required to keep their facilities open and available to inspections without notice for at least 20 hours each week.

The court found that although imposing a burden on the producers to document the ages of performers who were obviously mature adults did nothing to advance the government’s interest in protecting children, the court ultimately accepted the government’s argument that “any attempt to identify a class of clearly mature adults exempt from the Statutes’ reach would undermine the Statutes’ effectiveness.”  Although the government’s expert conceded that it was “generally true, but not always true” that adults who are 25 years of age or older will not be mistaken for minors under age 18, and that “the vast majority” of adults 30 years of age or older could not be mistaken for a minor, the court asserted that “the government need not employ the least restrictive or least intrusive means” when it came to advancing the significant interest in protecting minors.  “The government must be allowed to paint with a reasonably broad brush if it is to cover depictions of all performers who might conceivably have been minors at the time they were photographed or videotaped” wrote the court, quoting from an earlier decision rejecting a similar challenge to the statute.

The court found that “neither side successfully established at trial where the line between ‘clearly mature’ and ‘possibly underage’ can effectively be drawn,” wrote Judge Smith, who said that the government expert’s “statement that generally most minors could not be mistaken for a 25-year-old adult does not establish that the government’s interests are not furthered by requiring identification for performers over age 25.”  Indeed, the same expert pointed out that “the rare minor could appear up to 30 years old.”   “failing to require producers to check identification for such individual would therefore render the Statutes less effective in preventing child pornography,” wrote the court. “Thus, at the very least, comparing the use of performers above and below age 25 as Plaintiffs urge does not advance their argument that the States are not narrowly tailored.”  “Narrow tailoring” is a requirement of statutes that would burden constitutionally-protected speech, and because the district court accepted the plaintiffs’ argument that their sexually-oriented materials enjoy some 1st Amendment protection, the regulation must meet the test of being “narrowly tailored” to avoid burdening more speech than is needed to advance the government’s legitimate interests.

The court concluded that the burden actually imposed was not sufficient to require more precision in the documentation requirements.  It found that the cost of complying was not so severe as to make the producer’s activities unprofitable, especially since “each Plaintiff’s work depicts a substantial number of individuals for whom requiring identification does promote the government’s interests.”  Indeed, the court said, once the producers make the initial investment in setting up their age record system, they “do not face a substantial additional burden attributable to keeping records for clearly mature performers on top of the records they must maintain for young performers,” so “most of the burden Plaintiffs incur through compliance with the statutes is implicated by the government’s interest in protecting children.”

The court pointed out that because none of the plaintiffs in this case exclusively employed “clearly mature adults,” the court didn’t have to address whether an exemption from the rules would be required for somebody whose productions were so limited.  Furthermore, none of the plaintiffs were producing images solely intended for private use.  “Whether the statutes and regulations may be constitutionally applied to individuals falling in either of those categories are therefore questions we need not reach,” wrote Judge Smith.

The court also rejected the argument that the record-keeping requirement was over-broad, the flip side of the “narrow tailoring” test, again emphasizing the substantial proportion of youthful-looking individuals employed in making sexually-oriented materials covered by the statutes.  As one government expert testified, concerning the difficulty of establishing the exact proportions, “youthful adults appear in all categories of pornography, not just ‘teen porn,’ making the attempt to estimate the amount of sexually explicit depictions of youthful adults using categorical search terms particularly foolhardy.”  Also, it is almost impossible to quantify the proportion of such depictions that are created for private use, such as “sexting,” which is also theoretically covered by the federal statutes.

However, the court found that the plaintiffs had established “the existence of a universe of private sexually explicit images not intended for sale or trade along with, to a limited degree, a universe of sexually explicit images that depict only clearly mature adults.”  As to these, the court concluded, the district court may need to reconsider its 1st Amendment ruling in an “as-applied” challenge by individual plaintiffs.  However, wrote Judge Smith, “the invalid applications of the Statutes that Plaintiffs have demonstrated still pale in comparison with the Statutes’ legitimate applications, which counsels against holding the Statutes facially invalid.”

Turning to the government’s defense of the authorization for warrantless searches, the court rejected the argument that these statutes qualified for a recognized exception for heavily regulated industries.  There is a line of constitutional cases holding that the government may undertake administrative searches of heavily regulated industries without getting warrants or giving advance notice, even though the violation of safety rules may sometimes result in criminal penalties.  This exception was developed in the particular context of safety regulations of heavy industry, for one example.  Another example is the funeral business, where many states have adopted extensive regulations and authorized warrantless searches.  But the court rejected the government’s argument that the plaintiffs in this case were engaged in a heavily regulated industry.

While the statutes do require recordkeeping and labeling of the product, “no one is required to obtain a license or register with the government before producing a sexually explicit image,” wrote Judge Smith.  “An artist can pick up a camera and create an image subject to the Statutes without the knowledge of any third party, much less the government.  Nor has the government identified any regulations governing the manner in which individuals and businesses must produce sexually explicit images.  The creation of sexually explicit expression is better characterized by its lack of regulation than by a regime of rules governing such expression.”

Thus, a statutory authorization of warrantless searches requires some justification showing that requiring warrants would significantly undermine the legitimate government purpose of these recordkeeping requirements.  “Here,” wrote Judge Smith, “the government has all but admitted that warrantless searches are unnecessary.”  After again mentioning the testimony by FBI agents that it was unlikely that a producer could assemble the necessary records on short notice, the court stated, “We agree with law enforcement’s testimony that the destruction of evidence is not a real concern, given that to do so would only compound any criminal violation of the Statutes.  Further, law enforcement here conducted nearly one third of its inspections under the Statutes after providing notice and without any reports of records fabrication.  Thus, the record establishes that the type of records required to be maintained, given their scope as well as the need for indexing and cross-referencing, could not easily be recreated on short notice and violations concealed. “

Consequently, there is no need in this case to dispense with the constitutional safeguard of having the government persuade a neutral judicial officer of the reasonableness of a proposed search in order to get a warrant.  This would presumably involve providing some evidence that a producer is making or distributing films depicting youthful-looking actors whose ages need to be verified.  Such a requirement would, of course, probably deter government inspectors from seeking  search warrants to look at records when the product clearly depicts only “clearly mature” adult performers.

Since the government is not presently engaged in active inspection of these records, it seems unlikely that it would seek Supreme Court review of the 3rd Circuit’s 4th amendment ruling.  The next question in this case is whether Judge Baylson in the district court might cut back on his 1st Amendment holding in light of the appeals court’s reasoning.

The plaintiffs are represented by Lorraine R. Baumgardner and J. Michael Murray of Berkman, Gordon, Murray & DeVan (Cleveland) and Kevin E. Raphael, and J. Peter Shindel of PIetragallo, Gordon, Alfano, Bosick & Raspanti (Philadelphia).  Amicus briefs in support of the plaintiffs were filed by the ACLU of Pennsylvania and the Electronic Frontier Foundation.  Justice Department attorneys represented the government.



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Virgin Islands Supreme Court Rules in Favor of Second-Parent Adoptions

On May 20 the Supreme Court of the Virgin Islands ruled that the Superior Court erred when it dismissed a second-parent adoption petition on the ground that the Virgin Islands did not recognize the Canadian same-sex marriage of the petitioners and granting the co-parent’s petition would require terminating the parental rights of the birth mother.  In re L.O.F. & N.M., 2015 V.I. Supreme LEXIS 13.  Eschewing a literal reading of the archaic adoption statutes, the court held that the policy of deciding adoption petitions in the best interest of children provides a basis to “waive” the termination of parental rights when a same-sex co-parent (or stepparent, for that matter) petitions to adopt a child.

The biological mother of L.O.F. and N.M. and her same-sex partner were married in Canada in 2007, and have raised their children together in St. Croix, V.I.  The children were conceived through anonymous sperm donations, the donors having necessarily waived any parental rights.  The women filed an adoption and name-change petition in the Superior Court in December 2012, asking the court to grant an adoption in the partner’s favor without affecting the parental rights of the birth mother so that “all parental rights and obligations [are] shared equally.”  The petition described this arrangement as a “second-parent adoption,” a procedure approved in many court decisions in the United States.  However, Superior Court Judge Denise A. Hinds Roach denied the petition, holding that because the petitioners “filed together as spouses” under “a limited ‘spousal’ or ‘stepparent’ provision in the V.I. adoption statutes and the V.I Code limits marriage to different-sex couples, the court could not grant the adoption.  After the superior court denied a motion for reconsideration, the petitioners appealed to the Supreme Court.

Writing for the unanimous court, Justice Maria M. Cabret found that Judge Hinds Roach had misconstrued the V.I. adoption provisions.  Indeed, the court found that a literal interpretation of those provisions would disallow ordinary stepparent adoptions.  This is because the statute authorizes adoptions only by single people or married couples, and apparently requires terminating the parental rights of natural parents upon the adoption of their children.  Reviewing the history of the V.I. statute, first enacted in 1921 and later incorporated without change in the V.I. Code in 1957, Justice Cabret pointed out that divorce and remarriage were not common phenomena in the Virgin Islands in those days so provision for stepparent adoptions was not made.  However, the court went on to say that a literal reading of the statutory language should be rejected if it would produce absurd results or undermine the statutory objective, which is to “consider the best interests of the child when making decisions that concern the child.”

Quoting liberally from U.S. state court decisions and law review articles, the court embraced the logic of allowing second-parent adoptions by same-sex partners regardless whether V.I. recognizes same-sex marriages.  “It is clear that the best interests of the children ‘would certainly be advanced in situations like those presented here by allowing the two adults who actually function as a child’s parents to become the child’s legal parents,’” wrote Cabret, quoting from an opinion by former N.Y. Chief Judge Judith Kaye for the New York Court of Appeals.  “Granting an adoption in favor of a stepparent or second parent who already serves as the child’s functional parent, without terminating the rights of the original parent, furthers the child’s best interests because the child will be able to ‘preserve [the] unique filial ties’ to the stepparent or second parent in the event she divorces or separates from the original parent, or the original parent predeceases the stepparent or second parent,” continued Justice Cabret, this time quoting from a ruling by the Massachusetts Supreme Judicial Court.

The court found that applying the V.I. statutory provision requiring termination of the natural parent’s rights upon an adoption would “actively undermine the best interests of children such as L.O.F. and N.M.F., and thus ‘undercut the legislature’s clear intent.’”  This would produce an “absurd outcome,” which is to be avoided in construing statutes.  “Allowing an adopting parent to waive enforcement of this provision and maintain the legal rights of the natural parent when it is in the best interests of the child to do so also follows the widely recognized principle that adoption statutes ‘must be strictly construed to protect the rights of natural parents,’” the court continued, noting that adoption of children was not known at common law and is a creature solely of statute in common law jurisdictions.  “So while we must not interpret the adoption statutes to undermine the legislative purpose of promoting the best interests of the child, we must also remember that ‘adoption is not part of our common law tradition,’ and instead works to abrogate the common law rights of natural parents.”

Since, in this case, both parties clearly consent to an adoption under which the natural parent will continue to be a legal parent of the children, the Superior Court should approve the petition on remand if it finds that the adoption will be in the best interests of the children.

The court pointed out that the logic of its decision applied regardless whether the Virgin Islands would recognize a same-sex marriage contracted in Canada, so there was no need to consider the petitioners’ argument that V.I. was required to recognize their marriage.  “But we note that the United States Supreme Court will likely decide in the near future whether statutes like 16 V.I.C. sec. 313 are constitutional,” the court observed in a footnote, citing to the grant of certiorari in Obergefell v. Hodges.  Any decision by the U.S. Supreme Court on this question will be binding in the Virgin Islands, of course, under its commonwealth status.

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Irish Republic Votes for Marriage Equality

A proposal to amend Ireland’s Constitution was approved by 62.07% of the voters in a referendum held on May 22, 2015.  The amendment states: “Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”   Implementation will require action by the Parliament and President, which is expected to follow as a matter of course.  Legislation will set the date when same-sex couples can begin marrying. The vote made Ireland the first country in the world to amend its constitution through popular vote to allow same-sex couples to marry.

Forty-two out of the nation’s 43 constituencies (voting districts) produced majority support for the amendment, which received 48.58% of the vote in the sole outlier district, Roscommon-South Leitrim.  The measure captured more than 70% of the vote in the dozen constituencies in Dublin, the nation’s capital, largest municipality and center of LGBT activity in the country.  All political parties supported the proposal, the only significant organized opposition coming from Roman Catholic Church leaders.  Even the church leaders took a relatively moderate position, and some priests actually stated support for the measure as a pragmatic recognition of social change.  The measure relates only to civil marriage, and will not require religious bodies to conduct same-sex marriage ceremonies.

Homosexual acts were criminalized in Ireland under the United Kingdom’s Offences Against the Person Act in 1861.  The Republic of Ireland retained the British criminal provisions upon achieving independence in 1922.  A literary scholar, David Norris, mounted a challenge to the anti-gay criminal laws in the Irish courts in the 1970s, claiming that they violated the Irish constitution, but he was rebuffed in the national courts.  He appealed to the European Court of Human Rights, which ruled in 1988 that Ireland was violating the right to privacy of its gay citizens and, after extended debate, the Irish Parliament agreed in 1993 to decriminalize private consensual gay sex.  Soon thereafter, efforts began to get the government to recognize the civil rights of gay people affirmatively.  In 1998, Ireland outlawed anti-gay employment discrimination, although it exempted religious organizations from complying.  In 2000, the Equal Status Act extended anti-discrimination requirements to businesses and government programs.  In 2010, the Parliament enacted a Civil Partnership law, providing for marriage-style contractual status for same-sex couples.  A Constitutional Convention in 2013 advised the government to amend the constitution to allow for same-sex marriages, finding that civil partnerships were insufficient to provide equal rights to gay people, and the government responded by proposing the constitutional amendment that was approved by voters on May 22, 2105.

Voter turn-out was high for an election that did not involve candidates running for office, with slightly over 60% of the registered voters casting ballots.  Of the 1,949,725 ballots cast, 13,818 were rejected as invalid. 1,201,607 votes were cast in favor of the amendment and 734,300 were cast against.

Same-sex couples first won the right to marry in The Netherlands in 2001.  Belgium followed in 2003, Canada and Spain in 2005 (although some Canadian provinces allowed marriages as early as 2003), South Africa in 2006, Norway and Sweden in 2009, Argentina, Iceland and Portugal in 2010, Denmark in 2012, Brazil, England and Wales, France, New Zealand and Uruguay in 2013, and Luxembourg and Scotland in 2014.  Finland has legislated for same-sex marriage, but the measure will not go into effect until 2017.  In the United States, same-sex marriage first became available in Massachusetts in 2004.  Litigation, legislative action and most notably some state public referenda in 2012 have led to same-sex marriage being available in 37 states and the District of Columbia as of May 2015, and in 2013 the U.S. Supreme Court declared unconstitutional the federal government’s refusal to recognize lawfully-contracted same-sex marriages.  The Supreme Court heard arguments on April 28, 2015, in Obergefell v. Hodges, presenting the question whether same-sex couples have a right to marry under 14th Amendment due process and/or equal protection principles, and it is widely anticipated that the Court will rule by the end of its current term on June 29, 2015, that same-sex couples have a constitutional right to marry in the United States.  In Mexico same-sex marriage is available in several states and the capital district, courts in most of the country’s states have granted individual petitions for marriage licenses brought by same-sex couples, and the Mexican Supreme Court has recently taken a case for review that may end up making same-sex marriage more widely available; that court has already ruled that lawfully contracted same-sex marriages must be recognized throughout the country.  New York Times, Associated Press, Freedom to Marry website.

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States Take Differing Stances on Parental Status of Same-Sex Partners and Spouses

Legal observers have been predicting that the Supreme Court will rule this June in Obergefell v. Hodges that same-sex couples have a right to marry under the 14th Amendment of the U.S. Constitution and to have such marriages recognized by every state, but such a ruling will not necessarily settle all the issues of parental rights of same-sex couples that continue to divide the courts.  Litigation in four jurisdictions demonstrates the continuing problem of sorting out such rights.

The Massachusetts Supreme Judicial Court ruled on May 7 in Adoption of a Minor, 2015 Mass. LEXIS 248, 2015 WL 2095242, that the traditional presumption that a child born to a married woman is the legal child of her spouse applies to a lesbian couple, so they need not provide formal notice to their sperm donor that they are seeking a joint adoption in order to avoid problems if they travel or relocate outside Massachusetts.   But on May 20, the New York 2nd Department Appellate Division, in Brooklyn, ruled in Paczkowski v. Paczkowski, 2015 N.Y. Slip Op. 04325, 2015 WL 2386457, that the parental presumption does not apply to a lesbian couple, affirming a Nassau County family court ruling that the non-biological mother has no standing to seek a joint custody order for the child born to her same-sex partner.  In Oregon, the Court of Appeals ruled on May 13 in In re Domestic Partnership of Madrone, 2015 Ore. App. LEXIS 577, 2015 WL 2248221, that the question whether the former registered domestic partner of a birth mother should be considered the legal parent of the child turned on whether the women would have married had that option been available when the child was born, and in Wisconsin, Lambda Legal filed suit in Torres v. Rhoades, No. 15-cv-288 (U.S. Dist. Ct., W.D. Wis.), also on May 13, on behalf of a married lesbian couple denied the benefit of the marital presumption by state officials who have thus far refused to list both women as parents on their child’s birth certificate.

The cases each present somewhat different facts, but all of them implicate the question whether some form of the parental presumption should apply when children are born to a lesbian couple as a result of donor insemination.  The parental presumption, whether adopted as a judicial rule or through legislation, has differed in its strength from state to state, but has generally been applied by courts and government officials to ensure that a child born to a married woman not be deemed “illegitimate” and be entitled to the support of the biological mother’s spouse, and the presumption took on particular significance when married different-sex couples began to resort to donor insemination to deal with problems of male infertility, raising questions about the legal rights and responsibilities of the husbands.

In the Massachusetts case, petitioners J.S. and V.K., a married lesbian couple, filed a joint petition to adopt their son Nicholas who was born to J.S. in 2014, having been conceived through in vitro fertilization using a known sperm donor.  The women were married when Nicholas was born, and both are listed as parents on his birth certificate.  According to the opinion for the Supreme Judicial Court by Justice Fernande R.V. Duffly, the women “sought to adopt their son as a means of ensuring recognition of their parentage when they travel outside the Commonwealth or in the event of their relocation to a State where same-sex marriage is not recognized.”  They sought to proceed with the adoption without given notice to the sperm donor, contending that since he was not a legal parent of Nicholas, no notice was required.

 The family court judge denied their motion to dispense with the notice, certifying the question whether notice to a known biological father was required to the state appeals court.  The Supreme Judicial Court transferred the case directly to its docket, and concluded that such notice was not required.

Justice Duffly made clear that the parental presumption applied in this case.  “As to a child of a marriage who is conceived via artificial insemination or IVF, as here,” wrote Duffly, “[the statute] by its nature, contemplates that a third party must provide genetic material for the child’s conception.  Nonetheless, as is consistent with our paternity statutes and long-standing presumption of the legitimacy of marital children, [the statute] confers legal parentage only upon the mother’s consenting spouse, not the sperm donor.  It is thus presumed that marital children have only two lawful parents: the biological mother and her spouse.”  While acknowledging that there are contexts in which a sperm donor might assert claims to parentage, they did not apply in this case, where the sperm donor was not seeking any parental standing.  Thus, the court concluded, since the adoption statute “does not require the lawful parents of a child to give notice of the petition for adoption to a known sperm donor, we answer the reported question, ‘No.’  The order denying the petitioners’ motion to proceed with the adoption without further notice is reversed.”


The contrary ruling by the New York Appellate Division provides little rational explanation.  The case of Jann P. v. Jamie P. produced a startling ruling from Nassau County Family Court Judge Edmund M. Dane on June 30, 2014, holding that the state’s 2011 Marriage Equality Law, which provides that same-sex and different-sex marriages should be treated the same for all purposes of New York law, did not apply to the parental presumption.  The appellate division’s ruling abandoned the trial court’s decision to provide anonymity to the parties, identifying them as Jann and Jamie Paczkowski.  They were married when their son was born, but the marriage was a shaky one, and no adoption was undertaken.

When the couple separated and Jann sought a court order allowing her continued contact with her son, Judge Dane insisted that the parental presumption did not apply because it was physically impossible for Jann to have been the child’s biological parent.  On May 20, the Appellate Division echoed this conclusion.  “Here, the petitioner, who is neither an adoptive parent nor a biological parent of the subject child, failed to allege the existence of extraordinary circumstances that would establish her standing to seek custody,” wrote the court.  “Contrary to the petitioner’s contention,” the statutory provisions concerning the parental presumption “do not provide her with standing as a parent, since the presumption of legitimacy they create is one of a biological relationship, not of a legal status, and, as the nongestational spouse in a same-sex marriage, there is no possibility that she is the child’s biological parent.”

The court’s wording signals the archaic legal formalism of its approach to this issue.  Referring to “the subject child” as if this case did not involve flesh-and-blood people with emotional and psychological attachments – in this case, the bonding of a mother-child relationship extending over many months until Jann’s continued contact with her child was cut off – suggests that the judges were more concerned with  legal categories than human relationships, totally at odds with the underlying philosophy of family law, which is to strive to protect the best interest of children in disputes involving their parents.  The case cries out for reversal by the Court of Appeals or the legislature.

Surely, when the New York State legislature adopted a Marriage Equality Law that expressly provides that same-sex and different-sex marriages were to be treated as equal in all legal respects, it could not have implicitly intended to create an exception to the parental presumption statute.  And that statute is not written in gendered terms.  Section 417 of the Family Court Act states, “A child born of parents who at any time prior or subsequent to the birth of said child shall have entered into a ceremonial marriage shall be deemed the legitimate child of both parents for all purposes of this article regardless of the validity of the marriage.”  Clearly, the intent of the statute is to legitimize the birth of any child born to a married woman by recognizing both spouses as parents of the child.  The practice commentary published in the statute book states that this presumption “should apply to same sex as well as heterosexual married couples.”

The commentary cites a Monroe County decision from 2014, Wendy G.M. v. Erin G.M., 45 Misc. 3d 574, supporting this conclusion, in which the court ruled that a common law (non-statutory) policy could be applied to recognize the parental status of the biological mother’s wife.   Ironically, and inexplicably, the Appellate Division’s decision in the Paczkowski case cites the Wendy G.M. decision without acknowledging that it would support Jann’s standing to seek custody, making it seem as if the two decisions are consistent.  One wonders whether the judges whose names are attached to the Paczkowski ruling – Randall T. Eng, L. Priscilla Hall, Jeffrey A. Cohen, and Betsy Barros – bothered to read the Wendy G.M. decision.

The Oregon case is a bit more complicated.  Karah and Lorrena, same-sex partners, did not have a legally recognized relationship when Lorrena bore a child through donor insemination, although they entered into a registered domestic partnership after the child was born.  They had a commitment ceremony a few years before the child was conceived through donor insemination.  There was evidence, however, that Lorrena had expressed ideological opposition to marriage as an institution, and she testified that having the child was originally her idea and she never intended for Karah to be a legal parent of the child.  Despite their entering into a domestic partnership after the child was born, it seems that their relationship had deteriorated during Lorrena’s pregnancy, and the circumstances under which the domestic partnership papers were signed is disputed by the parties.  On the other hand, they had agreed to adopt a new surname, Madrone, and that name was used for the child’s birth certificate, both women being listed as parents.  After the subsequent break-up, Karah sought to establish her parental status, relying on a prior Oregon court decision recognizing parental standing for same-sex partners.  Today same-sex partners can marry in Oregon as a result of a court ruling last year, but that option was not available when the child was born.

The court of appeals determined that Karah’s parental standing should turn on whether the women would have married had that option been available to them at the time the child was born.  Thus, the court implicitly endorsed the view that if this same-sex couple had been married when the child was born, Karah’s parental status would have been the same as that of a husband who had consented to his wife becoming pregnant through donor insemination, applying the statutory parental presumption.

The Lambda Legal lawsuit in Wisconsin seeks to vindicate the same principle.  Marriage equality has been available in Wisconsin since the U.S. Supreme Court announced on October 6, 2014, that it would not review a decision by the U.S. Court of Appeals for the 7th Circuit finding that Wisconsin’s ban on same-sex marriage was unconstitutional.  This includes, of course, a requirement that Wisconsin recognize same-sex marriages contracted in other states.

Chelsea and Jessamy became friends in 2001, have lived as partners in a committed relationship since 2010, and were married in 2012 in New York.  They live in Dane County, Wisconsin, and initiated the process of having a child together in 2013, using the services of a fertility clinic for Chelsea to conceive through assisted reproductive technology.  Their child was born in March 2015 in Madison, and they filled out forms to obtain a birth certificate listing both of them as parents.  But when they received the “Notification of Birth Certificate Registration” from the state’s Department of Health Services, Chelsea was listed as the only parent.  Their lawyer corresponded with the Department, but the response was that DHS was “evaluating” the situation, and as of the filing of their complaint in the U.S. District Court on May 13, they had not received a correct birth certificate listing both of them as parents.

Their complaint points out that a Wisconsin statute embodies the parental presumption and applies it to situations where a wife becomes pregnant through assisted reproductive technology.  Although the statute uses gendered language (referring to the husband and the wife), courts in other states, such as California, have held that such statutes should be construed as gender neutral in the case of same-sex married couples to be consistent with constitutional equality requirements.  Their complaint alleges that failure to apply the parental presumption and issue the birth certificate violates the couple’s equal protection and due process rights under the 14th Amendment.

It may be that once the U.S. Supreme Court has issued a marriage equality ruling these parental presumption issues will eventually be sorted out in a consistent manner, but the differing approaches of state officials and courts suggests that this is one issue that will require further work to pin down the practical implications of marriage equality once the basic principle has been established.


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Brooklyn Art Song Society: New Voices – The New American Art Song

The Brooklyn Art Song Society is the brainchild of Michael Brofman.  It’s been around for five years, but last night was the first time I was actually able to clear my calendar and head over to Brooklyn to attend one of their concerts.  I had been invited by composer Glen Roven to help celebrate the release of a new Naxos recording that includes his song cycle, The Vineyard Songs.  I had been present over a year ago at a concert in Manhattan when the piece was given its world premiere, with the same performers who were to give it last night: soprano Laura Strickling and pianist Michael Brofman.  As I had expressed eagerness to hear it again, I cleared my calendar and showed up at South Oxford Space, a performance space a few blocks away from the Brooklyn Academy of Music.  (I had previously attended a concert there a few years ago that was presented by Five Boroughs Music Festival.)

First a comment about the performing space: The second floor at South Oxford Space (138 S. Oxford Street) is a small concert hall, rectangular with a stage at one end.  But the stage was not used on this occasion.  Instead, the piano was located along the long side of the rectangle with folding chairs spread out facing it.  The acoustics are good, but actually the room is a bit small to accommodate the sound of the piano and singers with operatic-size voices, so much of the time the music was very loud, sometimes oppressively so, and the piano was extremely loud in relation to the voices.  I think that lowering the piano lid to half-mast might have helped with the balances.  This didn’t detract unduly from my enjoyment of the concert, but I think if they use this space again they should think more about balances in light of the size of the room.

That out of the way, I found the entire concert fascinating.

In the program flyer, Brofman describes his organization as “dedicated to the vast repertoire of poetry set to music.”  That means he will NEVER run out of interesting new pieces to present!!  We are actually experiencing a great flowering of new art song in America from numerous young (and not-so-young) composers who are busily enjoying the “new” dispensation to write music people will want to hear.  I say that advisedly.  When I was a student, back in the 1960s and early 1970s, concert music was largely consumed by striving to write music that most ordinary concert-goers would not even recognize as music: no discernible melody, atonal and serial harmony, and a pervasive “grey” quality to everything, buried under a haze of rhythmic complexity.  Although Milton Babbitt didn’t actually say it, a headline writer for High Fidelity magazine summed it up nicely for an article about his work: “Who Cares If You Listen?”  But even at that time, the seeds of a counterrevolution were starting to take root, as the Minimalists were emerging, their music generally well rooted in tonality, and some of the ultra-modernists were rediscovering tonality – Exhibit A was probably George Rochberg.  By the 1990s, the concert music world was once again dominated by tonal composition and a concern for melody and its developments was becoming prominent as a new burst of Romanticism emerged.  Nowhere was this more evident than in the field of American art song, building on the heroic earlier accomplishments of such composers as Samuel Barber and Ned Rorem (and the grandfather of them all, Charles Ives).   Barber and Rorem had been looked down upon by the serialists as “old fashioned.”  It is a source of some regret that Barber didn’t live to see the revival of his music, but happily Rorem is still with us. . .

Every work heard last night seemed to be concerned with communicating, vividly, with an eager audience.  None of these composers could be accused of not caring whether the audience bothered to listen.  Indeed, their songs were all well-crafted to draw the listener into a sound world where words and music combined to enchant the listener, to put the listener under the spell of the composer and the poet, to grip the emotions and produce that collective intake of breath at the peak moments and the gratified murmur at the end.

Last night’s composers, all living and very productive, were Michael Djupstrom, Herschel Garfein, James Kallembach, James Matheson, and Glen Roven.  All except Matheson were present to receive the appreciative applause of the audience, well-deserved.  Baritone Kyle Oliver sang Djupstrom’s “Oars in Water.”  Elisabeth Marshall sang Garfein’s “Two Stoppard Songs” and Kallembach’s “Four Romantic Songs,” and Laura Strickling sang Matheson’s “From Times Alone” and Roven’s “The Vineyard Songs.”  All the performers were excellent in their own individual way, and not one of the songs was less then totally absorbing.  I was hearing everything except the Roven cycle for the first time, but all of this music was so listener-friendly that I found no difficulty in appreciating and enjoying it all.  Michael Brofman’s collaboration at the piano was sterling, and I will be eager to hear his work again during BASS’s next season.  I also hope to hear more of all of these singers, each of whom really knows how to “put over” a song!

According to an announcement in the program, the opening night for next season will be on September 18.  The theme for the season will be British songs, and music by John Dowland and Henry Purcell will make up the first program.  There will be lute songs as well as songs with piano accompaniment.  The location will be the Lafayette Avenue Presbyterian Church which, contrary to the name, bears a S. Oxford Street address.  Check out the Brooklyn Art Song Society website for details.

In the meantime, I would encourage anybody interested in American art song to consider acquiring the new Naxos CD whose release was celebrated last night.  It contains performances of many of the works on last night’s program, with many of the same performers.  I’ve already ordered it, and will add a postscript to this blog posting after I’ve received my copy and had a chance to listen.

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Supreme Court Argument Leaves Marriage Equality Proponents Cautiously Optimistic for June 2015 Victory

 My first take on today’s oral argument in the Supreme Court:

The United States Supreme Court heard oral arguments in Obergefell v. Hodges, No. 14-556, on April 28, considering the questions whether same-sex couples have a right to marry and to have their marriages recognized by states other than those in which they marry.  The case consolidated appeals from the plaintiffs in four states – Ohio, Tennessee, Michigan and Kentucky — whose district court victories were reversed by the U.S. Court of Appeals for the 6th Circuit in %DeBoer v Snyder%, 772 F.3d 388 (6th Cir. Nov. 6, 2014).  Most commentators agreed that it was possible that the Court would reverse the 6th Circuit on one or more grounds, but during the argument the Court appeared closely divided, and the “swing Justice,” Anthony M. Kennedy, Jr., did not give any clear signal from his questioning and comments about which way he was leaning, sometimes appearing skeptical about the plaintiffs’ claims, at other times supportive.

The Petitioners (plaintiffs in the trial courts) and Respondents (the states, which were defending their victory in the Court of Appeals), had complied with the Court’s request to designate one advocate from each side on each question, with the addition of Solicitor General Donald B. Verrilli, Jr., arguing in support of Petitioners on behalf of the Obama Administration.  Petitioners designated Mary Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders, the Boston-based public interest law firm, to argue the marriage question, and Douglas Hallward-Driemeier, head of the Supreme Court litigation practice at the law firm Ropes & Gray LLP, to argue the recognition question.  This was Bonauto’s first Supreme Court argument, but not her first appellate argument on marriage equality, as she had argued the Massachusetts marriage equality case in 2003 that led to the first legal same-sex marriages being performed in the United States.  The Respondents settled on former Michigan Solicitor General John Bursch to argue the marriage question, and Tennessee Associate Solicitor General Joseph Whalen to argue the recognition question.  Whalen was the only one among the advocates who personally participated in the argument before the 6th Circuit, successfully defending Tennessee’s ban on recognition of same-sex marriages.

Bonauto led off the argument and it quickly became clear that the four Democratic appointees to the Court – Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – were likely votes in favor of same-sex couples having the same fundamental right to marry as different sex couples.  Chief Justice John Roberts quickly moved to dispel the speculations of some commentators that he was a potential vote for marriage equality, as he suggested that what the plaintiffs were seeking was not just “to join the institution, you’re seeking to change what the institution is.”  Roberts characterized “the opposite-sex relationship” as “the fundamental core of the institution” of marriage, and he signaled opposition to the idea that judges rather than legislatures or the voters in referenda should decide whether to change that definition.

As expected, Justice Antonin Scalia weighed in with arguments familiar to anybody who read the 6th Circuit opinion by Judge Jeffrey Sutton, one of his “originalist” acolytes.  Scalia asserted that the question before the Court was not “where there should be same-sex marriage,” but rather “who should decide the point,” and clearly signaled his view that it should be decided by the democratic process of voting and legislating, not by judges.  None of Justice Samuel Alito’s questions or comments suggested any real sympathy for the plaintiffs’ position either, and of course Justice Clarence Thomas was true to form in refraining from questioning or offering comments.

So, as had been speculated from the beginning, the outcome will likely fall to Justice Kennedy, and his opening sally was not calculated to reassure those who were counting on him to quickly embrace the trajectory of his prior opinions for the court in the DOMA and sodomy cases.  “This definition [of marriage] has been with us for millennia,” he pointed out.  “And it’s very difficult for the Court to say, oh, well, we know better.”  On the other hand, he noted that the amount of time between the Supreme Court’s decision striking down racial segregation in public schools and subsequent decision striking down laws against interracial marriages was “about the same” as the time between striking down sodomy laws and the present case on same-sex marriage.  “And so there’s time for the scholars and the commentators – and the bar and the public – to engage in it,” he pointed out.

Kennedy came closer to tipping his hand in the other direction when John Bursch stood up to argue on behalf of the states defending their marriage bans.  Kennedy pressed Bursch to explain how allowing same-sex couples to marry would harm “conventional marriage,” but he left it to the other justices, particularly Breyer and Kagan, to pursue the point as Bursch put forward the notion that the state has a particular interest in assuring bonds between children and their biological parents, with Kennedy only interjecting a question of two along the way, although he characterized as “just a wrong premise” the argument that “only opposite-sex couples can have a bonding with the child.”

Kennedy seemed particularly indignant when Bursch discounted the significance of the dignity that the state bestows on a couple by according them the right to marry.  Bursch had suggested that the state has no particular interest in this, being primarily concerned with children, not with the relationship between the adults.  This was not a good strategic move on his part, in light of Kennedy’s expressed concern in his DOMA opinion about the “dignity” states confer on married couples.  “I don’t understand this not dignity-bestowing,” Kennedy commented.  “I thought that was the whole purpose of marriage.  It bestows dignity on both man and woman in a traditional marriage.  It’s dignity bestowing, and these parties say they want to have that same enoblement.”  When Bursch insisted that “the State has no interesting in bestowing or taking away dignity from anyone, and certainly it’s not the State’s intent to take dignity away from same-sex couples or from anyone based on their sexual orientation,” Kennedy sharply responded, “Well, I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.”

Solicitor General Donald Verrilli focused his argument entirely on equal protection, and he was pushed during the questioning on his failure to make the fundamental right to marry argument.  It became clear from the questioning from the conservative justices that they saw the right to marry argument as a non-starter because of – at least in their view – the difficulty of accepting a fundamental right to marry and then having to confront arguments on behalf of a right to plural marriages.  Alito posed a hypothetical about two men and two women seeking to marry as a foursome, which introduced a discordant note into the discussion, and Scalia also harped on this issue.

One absurd point arose when Scalia questioned Bonauto about whether a minister might be required to perform same-sex marriages against his or her religious belief.  Bonauto responded that the First Amendment would shield a minister from any such obligation, but Scalia insisted that if there was a constitutional right to marriage, that might be held to overcome the minister’s free exercise of religion defense.  Bonauto pointed out that no minister had been prosecuted for refusing to perform marriages in marriage equality states, and Justice Kagan jumped in with the example of rabbis who refuse to perform marriages between Jews and non-Jews.  While listening to this part of the argument, I was waiting for somebody to raise the example of Catholic priests who condition their willingness to perform marriages between Catholics and non-Catholics upon the commitment of the non-Catholic parent that the children be raised as Catholics, but nobody suggested that.  Of course, consistent with the Free Exercise Clause, no court would ever order a religious officiant to perform weddings that would violate their religious beliefs, so this was a silly line of questioning.

Bonauto closed with a rebuttal argument that was so precise and well-focused that she was not interrupted for any questions as she highlighted the basic inconsistencies in Bursch’s arguments.  One note of unexpected rama was introduced when a member of the audience stood after Bonauto had finished and burst into a diatribe about sin and abomination until escorted out by security officials.  Chief Justice Roberts seemed ready to delay the Solicitor General’s argument, but Verrilli signified he was ready to press forward.  Scalia made a cryptic remark that the outburst was “refreshing.”  Perhaps he meant to suggest that the Court seriously consider religious objections to same-sex marriage.

After a brief recess, the Court turned to the second question, whether states are required by the 14th Amendment to recognize same-sex marriages contracted in other states.  Douglas Hallward-Driemeier was quickly interrupted by Justice Alito.  “I am somewhat surprised by the arguments you made in your brief,” he said, “because they are largely a repetition of the arguments that we just heard with respect to Question 1.  I thought the point of Question 2 was whether there would be an obligation to recognize a same-sex marriage entered into in another State where that is lawful even if the State itself, constitutionally, does not recognize same-sex marriage.  I thought that’s the question in Question 2.  Am I wrong?”

This quickly clarified a mystery that had caused much speculation among legal commentators after the Court announced that it would review the 6th Circuit’s decision.  Why the second question, since it seemed obvious that if same-sex couples have a right to marry the right to recognition of out-of-state marriages would naturally follow?  This question was posed so that if the Court ruled against the plaintiffs on the right to marry, it could then confront the question whether a state that refuses to allow same-sex marriages – and is constitutionally free to do so – may nonetheless be obliged to recognize out-of-state same-sex marriages.  Justice Alito’s question thus framed the issue for the second hour of argument.

And Alito and Scalia energetically followed up with questions and hypotheticals about forcing states to recognize the validity of marriages that they wouldn’t allow to be formed within their own borders.  Even Kennedy joined in briefly, pointing out that if the Court determined that states do have a sufficient justification for refusing to issue marriage licenses to same-sex couples, might not the same justification suffice to allow them to refuse to recognize such marriages from out-of-state?  Justice Ginsburg did jump in to nail down the point that if the plaintiffs won the right to marry on Question 1, “then the argument is moot.”  Hallward-Driemeier agreed with her, as Joseph Whalen also conceded during his part of the argument.  Hallward-Driemeier emphasized the harms to same-sex couples who married and had children in other states and then might be moved by an employer – the starkest example was the military as an employer – to a state that didn’t recognize their marriage.  This seemed well-calculated to appeal to Justice Kennedy, since he had articulated a concern for the welfare of children of same-sex couples in his DOMA opinion.

As soon as Whalen got up to defend the recognition bans, Scalia appeared to surprise him by raising the Full Faith and Credit Clause, Article IV of the Constitution, which has barely been mentioned over the past two years of marriage recognition litigation.  In 1996, Congress adopted as part of the Defense of Marriage Act a provision stating that states were not required to accord full faith and credit to same-sex marriages from other states.  That provision has not been declared unconstitutional, and in the DOMA decision Justice Kennedy observed that it was not being challenged in that case.  Instead, lower federal courts have focused on the Equal Protection Clause and generally found that states had no rational basis for recognizing different-sex marriages from other states but refusing to recognize same-sex marriages.  Some scholars addressing this issue after passage of DOMA in 1996 observed that traditionally the Full Faith and Credit Clause had not been invoked in marriage recognition cases, since it was not really clear that the Clause even applied to marriages.

But Scalia pressed the point with Whalen.  Always the textualist, Scalia said, “I’m so glad to be able to quote a portion of the Constitution that actually seems to be relevant.  ‘Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.’  Now, why doesn’t that apply?”  Whalen sought to draw a distinction between “judgments” of courts, which courts routinely honor, as opposed to “laws of each state.”  “And the reason in part that the Court’s decision have said that is that otherwise, each State would be able to essentially legislate for every other State,” he continued.  “Public acts?” asked Scalia in response.  “It would include the act of marrying people, I assume.”  Whalen responded, “My understanding of this Court’s decisions as the reference in the Constitution to public acts is that each State’s laws.”  “So there’s nothing in the Constitution that requires a State to acknowledge even those marriages in other States that are the same?” asked Scalia, receiving an affirmative response from Whalen.  “Really,” asked Scalia, sounding skeptical.  Justice Breyer was eventually drawn into the discussion, indicating he might have to head back to his chambers and start reading Full Faith and Credit cases, evoking laughter from the audience.  Other justices were soon drawn in to what became a rather esoteric conversation about the interpretation and application of the Full Faith and Credit clause, which one suspects was not fully anticipated by the advocates.  There even seemed to be some indication, if perhaps just fleeting, that Chief Justice Roberts might see an application of the Full Faith and Credit Clause here, which could feed speculation that even if the Court were to rule adversely on Question 1, there might be a majority including some of the more conservative justices in favor of marriage recognition.  But only fleeting. . .

When Whalen picked up on Bursch’s argument about the state’s interest in maintaining its definition of parenthood as “biologically-based” as a reason not to recognize the parental status of same-sex spouses towards their children, Justice Sotomayor jumped in, responding to his assertion that Tennessee had always rooted the meaning of parenthood in a biological relationship between parent and child.  “Oh, but you do that for adoptions,” she said.  “What’s the problem?  This is a really big deal?”  Whalen responded, “It is a big deal, Your Honor, because you are changing the way the State defines a parent.  And in the adoption context, you have to understand adoption and the traditional definition of marriage, they work in tandem.  They work together.  As Mr. Bursch described, the objective with regard to marriage is to link children with their biological parents.  When that breaks down, then there’s adoption.”  Sotomayor responded by asking whether a state can refuse to recognize a birth certificate issued by another state that identifies same-sex spouses as the parents of a child.  “Do you think the word ‘records’ in the Constitution includes birth certificates,” referring again back to the Full Faith and Credit Clause.  After Whelan’s affirmative response, Sotomayor continued, “So California without any reason, no suspicion of fraud, no anything, could it refuse to recognize another State’s birth certificate.  Records to me has to have a meaning.”

“Record has a meaning,” Whalen responded.  “It does, your Honor.  The reason that I’m hesitant is that I know that there is disagreement in the cases about exactly what the impact of that is between whether that just means we have to acknowledge the existence of the record for evidentiary purposes, or whether the effect of the record has to be acknowledged.”  “But if a birth certificate were to be a record,” asked Sotomayor, “don’t you think a marriage certificate – it’s an official act of a State.”  While Whalen acknowledged as much, he continued, “I think that the laws that allowed that marriage to occur, when they are different fundamentally with the laws of a State like Tennessee, preclude the application of that same principle from one State to the other.”

Hallward-Driemeier’s rebuttal, like Bonauto’s, was so tightly focused that none of the justices interrupted with questions.  He concentrated on demonstrating the real harms suffered by same-sex couples exemplified by two of the plaintiff couples who had relocated and been denied recognition of their marriages, in one case in the context of emergency medical care for one of their children.  This, of course, was well-calculated to invoke Justice Kennedy’s concern.  For those looking to read the Kennedy tea leaves, there was little to work on in the Question 2 argument, since he barely spoke at all.  Hallward-Driemeier ended with the stark evocation of Jim Obergefell’s struggle to be properly recorded as a surviving spouse on his husband’s death certificate.

Commentators and analysts are likely to pick over the transcript and audio recordings for the next few months trying to find hopeful signs about how the case will turn out, but they may be disappointed to find that the likely “swing” voter, Justice Kennedy, had much less to say than those justices whose positions are much more predictable pro and con.  The most hopeful sign for marriage equality proponents springs not from these arguments, but more from the prior actions of the Court, denying review of the 4th, 7th and 10th Circuit pro-marriage equality rulings last October 6, which allowed same-sex marriage to go into effect eventually in all the states in those circuits, and denying stay petitions from several 9th Circuit states as well as Florida and Alabama, in cases that had not yet been reviewed by the 11th Circuit Court of Appeals (which had also refused to stay the marriage equality rulings from those states).  These actions seemed to clearly indicate that a majority of the Court was on-board with marriage equality, since the stay denials contributed to facts on the ground spreading marriage equality to 37 states representing over 70% of the population, and making the prospect of an adverse ruling on Question 1 a daunting proposition liable to generate frenzied litigation over the status of thousands of marriages performed in those states.  When viewed from that perspective, it seemed highly likely that Justice Kennedy would overcome any qualms he might have about suddenly abandoning “millennia” of different-sex marriage traditions in favor of avoiding the dignitary, financial and other harms suffered by same-sex couples and their children denied the benefits of marriage.

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Florida Courts Can Grant Divorces to Married Same-Sex Couples

The Florida 2nd District Court of Appeal ruled on April 24 in Brandon-Thomas v. Brandon-Thomas, 2015 Fla. App. LEXIS 6051, 2015 WL 1874457, that a same-sex couple that married in Massachusetts but resides in Florida could seek a divorce in a Florida court.  The unanimous three-judge panel found that the state had no rational basis for treating such a marriage differently from other out-of-state marriages.  The ruling reverses a 2013 decision by Lee County Circuit Judge John E. Duryea, Jr., who dismissed the divorce petition filed by Danielle Brandon Thomas.

Danielle and Krista Brandon Thomas married in Massachusetts in 2012 and subsequently relocated to Florida.  They have a child, for whom Krista is the birth mother.  According to the Per Curiam opinion issued by the Court of Appeal, “the marriage soured” after they relocated to Florida and Danielle filed a divorce petition in October 2013.  In her petition, Danielle asked the court to “determine parental responsibility and child support issues, as well as equitable distribution.”

Why would Krista oppose the divorce petition?  In her motion to dismiss the petition, she “alleged that she was both the birth mother and genetic mother of the child and that Danielle therefore had no standing to request shared parental responsibility or child support.”   It seems that Krista hoped by defeating the divorce petition to avoid a court ruling that Danielle was entitled to exercise parental rights to the child, or a court ruling requiring a division of assets.

The trial court based its dismissal on Florida’s Defense of Marriage Act and a state constitutional amendment that forbids recognition of same-sex marriages.  At the time the trial court ruled, those provisions had yet to be declared unconstitutional.  But after the U.S. Supreme Court’s June 2013 decision striking down part of the federal Defense of Marriage Act, several lawsuits were filed by same-sex couples in Florida seeking both the right to marry and the right to recognition of out-of-state marriages.  Florida Attorney General Pam Bondi has energetically opposed these lawsuits and appealed adverse rulings.  However, on December 19, 2014, the U.S. Supreme Court rejected her petition to stay a federal trial court ruling finding the Florida laws unconstitutional under the 14th Amendment, and same-sex couples began marrying in Florida early on January 6, 2015.

Surprisingly, the Per Curiam opinion by the court doesn’t mention any of this marriage litigation and doesn’t purport to base its ruling on the federal decisions, although they are mentioned in a concurring opinion by Judge Edward C. LaRose.  Instead of issuing a ruling that, of course, Florida courts can decide divorce cases for married same-sex couples because same-sex marriage is now legal in Florida, the court ruled as if the status of those Florida laws relied upon by Krista has not changed.

Instead, the court based its decision on the Full Faith and Credit Clause of the U.S. Constitution, which provides: “Full Faith and Credit shall be given in each State to the public acts, Records, and judicial Proceedings of every other State.”   After noting that Florida courts have not treated “sexual orientation” as a “suspect classification,” the court said that “the right of a same-sex couple to seek a dissolution of marriage in Florida, when they were validly married in another state but now live in Florida, is not a fundamental right for federal constitutional purposes.  Thus, Florida bears the burden of presenting only a rational basis for its classification.”

The court found that neither Krista, in opposing the divorce petition, nor the state, which intervened to advance its view that Florida courts may not recognize out-of-state marriages, even for the purpose of dissolving them, had failed to present such a “rational basis” for the Florida laws forbidding recognition of same-sex marriages.

“Krista refers to ‘a societal inducement for opposite-sex couples to marry, thus decreasing the percentage of children accidentally conceived outside of a stable, long-term relationship,’” commented the court.  “But this argument seems to ignore the biological fact that same-sex couples do not contribute to the problem of children ‘accidentally conceived’ outside of a stable, long-term relationship because, as a matter of pure biology, same-sex couples simply cannot ‘accidentally conceive’ children.”  This comment seems ironic, since prior to the recent surge of marriage equality decisions, several courts, including New York’s highest, had relied on the biological impossibility of same-sex couples accidentally conceiving children as a justification for the state providing marriage for different-sex couples but not same-sex couples.  Now the tables are turned!

Attorney General Bondi argued that “Florida’s refusal to recognize same-sex marriage furthers Florida’s long-standing history of defining marriage as being between a man and a woman.”  The court pointed out that refusing to give divorces to married same-sex couples living in Florida “seemingly contravenes Florida’s public policy.”

“If the policy is to prevent, eliminate, discourage, or otherwise preclude same-sex marriage in Florida, permitting the courts to dissolve same-sex marriages that have been previously entered into in other states would arguably further that policy by reducing the number of same-sex married couples in Florida,” the court wrote, stating that the Attorney General had failed to identify a “public purpose” that is served by denying divorces to such couples.

The court was disturbed by the practical impact of the trial court’s order dismissing the case, which is to deprive Danielle and the child of a judicial forum for determining what custody and visitation and child-support arrangements should be.  “The fact that a child is involved implicates Florida’s strong public policy to protect children by determining custody matters in accordance with the best interests of the child,” the court concluded.

In his concurring opinion, Judge Darryl C. Casanueva emphasized an alternative theory for finding jurisdiction: a right of access to the courts to determine the legal rights and responsibilities of parties upon the break-up of a marriage.  Same-sex couples married out-of-state are similarly situated with different-sex couples married out of state and equally in need of access to Florida courts to dissolve their marriages.  The judge pointed out that the U.S. Supreme Court had found a due process violation in the past when a state imposed significant fee barriers to couples seeking access to the courts for divorces, making them practically unavailable for poor people.  Thus, the right of access for a divorce is encompassed within the liberty protected by the Due Process Clause of the 14th Amendment.

Furthermore, he argued, this case wasn’t about same-sex marriage.  “A divorce proceeding does not involve recognition of a marriage as an ongoing relationship,” he wrote.  “Indeed, accepting that a valid marriage exists plays no role except as a condition precedent to granting a divorce.  After the condition is met, the laws regarding divorce apply.  Laws regarding marriage play no role.”

Judge Edward C. LaRose also concurred, emphasizing that the state’s statutory marriage recognition ban would have “minimal application to a case involving a divorce of a same-sex couple validly married in another state.”  While mentioning the federal marriage equality developments in Florida, Judge LaRose did not rely on them to reach his conclusion.  But in noting the practical impact of the trial court’s order, he pointed out that 37 states and the District of Columbia now have same-sex marriage.  “Although divorce does not inevitably follow marriage,” he wrote, “we should anticipate that many married same-sex couples, unfortunately, will need to dissolve their unions.  It is hard to fathom that the legislators who passed [Florida’s recognition ban] envisioned a scenario where assets remain unmarketable for lack of an equitable distribution.  Nor could they have reasonably anticipated a system that disregards the best interests of a child raised and nurtured in a same-sex home.  There can be no question but that Florida has a compelling interest in protecting children subject to its jurisdiction.”

Surprisingly, the court never mentioned the federal Defense of Marriage Act (DOMA) in its opinion.  Although the Supreme Court declared part of DOMA unconstitutional in 2013, it left untouched Section 2, which provides that states are not required to give “full faith and credit” to same-sex marriages contracted in other states.  Thus, in DOMA Congress gave Florida permission to withhold recognition from same-sex marriages such as that of Danielle and Krista.  Although many commentators have suggested that Section 2 of DOMA is unconstitutional, most of the litigation about marriage recognition over the past two years has virtually ignored it, as did the Florida court in this case.

The second question certified for review by the Supreme Court when it decides the pending marriage equality cases, Obergefell v. Kashich, was whether states are constitutionally required to recognize same-sex marriages from other states.   In Thomas v. Thomas, the Florida 2nd District Court of Appeal has answered this question in the affirmative.

Attorneys Luis E. Insignares and Brian J. Kruger of Fort Myers represent Danielle and Michael E. Chionopoulos of Fort Myers represents Krista.  The case will be returned to the Lee County Circuit Court for a hearing on Danielle’s divorce petition.

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California Federal Court Orders Sex-Reassignment Surgery “As Promptly As Possible”

For only the second time, a federal district judge has ordered state prison officials to provide sex-reassignment surgery (SRS) to a transgender inmate.  On April 2, U.S. District Judge Jon S. Tigar in San Francisco issued a preliminary injunction in Norsworthy v. Beard, 2015 WL 1500971 (N.D. Cal.), ordering state officials to provide the procedure for Michelle-Lael Norsworthy “as promptly as possible” in light of her medical condition and the recommendations of expert witnesses.

The first such order, issued by the federal district court in Boston on behalf of Michelle Kosilek, a Massachusetts life inmate, was reversed by the U.S. Court of Appeals for the 1st Circuit.  Judge Tigar acknowledged that ruling, but pointed out that it was not binding on the federal court in California and that there were many distinctions between the cases.

California Attorney General  Kamala D. Harris filed a motion with Judge Tigar on April 10, requesting that the preliminary injunction be stayed “pending review by the Ninth Circuit Court of Appeals.”  She argued that providing SRS in response to a preliminary injunction was effectively awarding a decision on the merits to Norsworthy before the state had any opportunity to prove at trial that the procedure was not “medically necessary” and thus not required to be performed under the 8th Amendment.  Harris stressed that the 9th Circuit, whose rulings are binding on the federal courts in California, has never ruled on the question whether prison inmates are entitled to have SRS.

Named Jeffrey Norsworthy at birth, the plaintiff was convicted of murder in the second degree with the use of a firearm on April 15, 1987.  Norsworthy was sentenced to seventeen years to life in prison, and has been eligible for parole since March 28, 1998.  According to the complaint, Norsworthy experienced early confusion about her gender identity that continued into adulthood, but did not openly identify as a transgender woman until after her conviction and incarceration, in the mid-1990s.  She was diagnosed with gender dysphoria by a prison physician in January 2000.  She soon began hormone therapy under the supervision of another prison physician, Dr. Lori Kohler, as a result of which she has become a “biological female,” a “pleasant looking woman, slender and coiffed with a pony tail,” who “walks the yard as a woman,” according to deposition testimony.

Unlike transgender inmates in most other states, Norsworthy, who now identifies as Michelle-Lael despite the refusal of prison authorities to allow her to seek a legal change of name, has been allowed to keep her hair long, to shower in private, and to purchase and possess brassieres, and she is housed in a “sensitive needs yard,” albeit in an all-male prison.  However, prison officials often refer to her using her legal male name.

Norsworthy has suffered several rapes in prison, and as a result of one prolonged gang rape, has become infected with hepatitis C, which has damaged her liver and created complications with her hormone therapy.  At one time, the complications were severe enough to require cessation of hormone treatment, although it was resumed at a lower level.  Also, her allergic reaction to certain hormone treatments has exacerbated her health problems, and despite her ability to present as a woman, her gender dysphoria continues strongly.

She despaired of the possibility of obtaining SRS until she heard about Michelle Kosilek’s victory in the federal district court in Boston.  Within weeks of that ruling, Norsworthy had initiated her attempt to obtain SRS, even before obtaining her psychologist’s diagnosis of the treatment as medically necessary for her.  After her psychologist, Dr. Reese, made this diagnosis and persisted in it, prison officials removed Norsworthy from his caseload and assigned another psychologist who was not supportive of Norsworthy’s quest.  Norsworthy acquired endorsements of her need for the procedure from two more medical experts, who offered deposition testimony in her support.  Dr. Reese, unfortunately, seems to have resigned his position, and Harris’s motion claims that Reese has disappeared from view.

In any event, having been turned down at every step by prison officials, Norsworthy exhausted her administrative remedies and filed suit in 2014, following her complaint with a motion for immediate relief, arguing that SRS was medical necessary not just because of her gender dysphoria but also because of the complicated treatment situation due to her hepatitis.  SRS would remove the internal source of testosterone, lessening the need for estrogen treatment and relieving the pressure on her liver.

Norsworthy’s case ran up against the strongly worded deposition testimony of Dr. Stephen Levine, who was an expert witness in the Kosilek trial and who has a long history of involvement with the issue of gender dysphoria, having played a role in the history of development of the standards of care now endorsed by the mainstream medical community.  Dr. Levine affirms that SRS is always an “elective” procedure, that it should not be undertaken until the individual has lived in society in the desired gender for a year – an experience he asserts cannot be obtained in prison – and that asserting a female gender identity may be a male prisoner’s lifestyle adaption to prison that he would come to regret after being released to civilian life with the opportunity for female companionship.

Although California’s written prison policies do not categorically forbid the underlying medical procedures associated with SRS, Judge Tigar found that there is an understanding in the prison system that SRS is not available for purposes of treating gender dysphoria, and the procedure has never been provided to an inmate despite numerous requests.  Thus, in examining the internal appeals process, the judge found that Norsworthy’s attempt to obtain SRS was denied because of this categorical policy, not because of an individualized medical determination.

The court found Norsworthy’s experts convincing and the state’s experts unconvincing in reviewing their deposition testimony in support and opposition to the motion for preliminary injunction.  He was particularly scathing about Dr. Levine’s deposition.   “The Court gives very little weight to the opinions of Dr. Levine, whose report misrepresents the Standards of Care; overwhelmingly relies on generalizations about gender dysphoric prisoners, rather than an individualized assessment of Norsworthy; contains illogical inferences; and admittedly includes references to a fabricated anecdote,” he wrote.  “To the extent that Levine’s apparent opinion that no inmate should ever receive SRS predetermined his conclusion with respect to Norsworthy, his conclusions are unhelpful in assessing whether she has established a serious medical need for SRS.”

The “fabricated anecdote” refers to Levine’s deposition testimony about an inmate who received SRS with poor results.  Since the record shows that no inmate in California has ever received SRS while incarcerated, the anecdote was obviously fictional, and Tigar asserts that Levine had acknowledged as much.

Applying the standards for issuing a preliminary injunction, Judge Tigar found that Norsworthy had demonstrated a high likelihood of success on the merits of her claim that she suffered a serious medical condition and that SRS was a medically necessary treatment for that condition. Furthermore, a de facto policy of denying SRS to all transgender inmates, regardless of their individual need, demonstrated deliberate indifference, which would violate the 8th Amendment right against cruel or unusual punishment.  Tigar concluded that requiring Norsworthy to forego this treatment while the case went through discovery and a trial and the inevitable appeal, which could stretch out over years, would inflict irreparable harm on the plaintiff because of the severe emotional pain and risks to her health shown on the record before the court.

Furthermore, he found that the equities on this motion tip “heavily” in Norsworthy’s favor.  “The Court takes seriously Defendants’ concern that a preliminary injunction providing SRS potentially deprives them of appellate review,” he wrote.  “However, Norsworthy has established that she is likely to succeed on the merits of her claims and that she is suffering from irreparable injury as a result of the deprivation of her Eighth Amendment rights.”   He concluded, as to the last part of the preliminary injunction test, that “there is no public interest in Norsworthy’s continued suffering during the pendency of this litigation.”

Judge Tigar noted that Norsworthy had also asserted an equal protection claim under the 14th Amendment, but in light of his resolution of the preliminary injunction motion on 8th Amendment grounds, there was no need to address the equal protection argument at this point in the case.

Judge Tigar’s opinion aroused immediate media and political controversy in California, with mounting pressure on Attorney General Harris to seek a delay of the SRS while pursuing an appeal.  Procedural rules required her to file her motion for a stay first with Judge Tigar.  He seemed to anticipate the arguments she would make in his decision, and if he denies the stay she would immediately seek relief from the 9th Circuit.

Her motion points out, among other things, that SRS involves an array of surgical and medical procedures that must be tailored to the needs of individual patients.  A generalized order to make SRS available “as promptly as possible” would present significant enforcement issues, not least as to the specific procedures that would be required to comply with the court’s order.  “The Court’s order permits an inmate to obtain any number of these procedures based solely on the assertion that the inmate has gender dysphoria and that the preferred surgery is necessary for the inmate to fully express their identified gender,” she argued.  This vastly oversimplified the argument of the plaintiff and the findings of the court.

The position of the state on this motion may be best summarized by the title of one section of their memorandum in support of the motion: “Sex-Reassignment Surgery Can Wait Because the Constant Care Norsworthy Receives From the Medical Department Minimizes the Risk of Any Substantial Threat to Her Health.”  Harris argues that Norsworthy has been incarcerated and living with gender dysphoria for almost two decades, and has not demonstrated that any recent development has suddenly made it urgent that she receive SRS.  Her lawsuit was filed promptly in reaction to the Kosilek ruling in Massachusetts, not as a result of some sudden medical emergency. Judge Tigar found the contrary, focusing on the deposition testimony of Norsworthy’s experts who opined that she urgently needed the procedures and had delayed seeking them only out of a sense of futility.

Norsworthy is represented by a team of lawyers from the San Francisco office of Morgan Lewis & Bockius LLP – Herman Joseph Hoying, Christopher J. Banks, Ian Thompson Long, and Megan Dy Lin —  as well as Oakland attorneys Ilona Margaret Turner, Jennifer Orthwein, and Shawn Thomas Meerkamper.

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Transgender Student Loses Fight Over Expulsion from UPJ

The federal court  for the Western District of Pennsylvania rejected a discrimination lawsuit by a transgender man who was expelled from the University of Pittsburgh at Johnstown in January 2012 for insisting on using men’s restroom and locker room facilities.  Just one day before the federal Equal Employment Opportunity Commission ruled that the Army had unlawfully discriminated against a transgender woman by denying her the right to use women’s facilities, U.S. District Judge Kim R. Gibson reached an opposite conclusion in his March 31 decision, finding that transgender legal precedents under Title VII of the Civil Rights Act did not apply to this lawsuit, which was brought under Title IX of the Higher Education Act and the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

The plaintiff, Seamus Johnston, was identified female at birth but by age nine had begun to self-identify as a boy, coming out to his parents.  He began living in accordance with his male gender identity beginning in May 2009, and a year later obtained counseling, being diagnosed by a psychotherapist as having a gender identity disorder.  A year later, he began hormone treatments.  In 2009 Johnston began the process of amending identification documents to reflect his male identity, and he obtained a common law name change in 2010.  His driver’s license was changed to his new name and gender identification in 2011, and he registered with the Selective Service system as a man in July 2011.  His amended passport was issued in February 2012, and he amended the gender marker in his Social Security records in November 2013.  However, he did not obtain a new birth certificate.

When he applied to the University of Pittsburgh at Johnstown (UPJ) in March 2009, he listed “female” on his application form, as he had not yet been diagnosed or begun hormone treatments.  He attended UPJ as an undergraduate for five semesters until his expulsion.  Although he had applied as female, upon arrival for his first semester in August 2009 he “consistently lived as a male,” he alleged in his lawsuit.  In August 2011, after his sophomore year, he asked the school to change the gender marker in his school records.  This request was not acted upon because he could not meet the school’s requirement that he present a birth certificate in his legal name identifying him as male.  The court’s opinion does not specify where he was born, but it seems likely that it was in a jurisdiction that won’t issue a new birth certificate without evidence of sex reassignment surgery, and Johnston had apparently not undergone that procedure.  He did present the school with a notarized affidavit about his name change, which led UPJ to change the name on his student records in the fall of 2011.

Johnston consistently used the men’s restrooms on campus.  Since he was living as a man, to do otherwise would be to risk a disorderly conduct arrest.  What he didn’t anticipate, however, was that he would be arrested for using the men’s restrooms.  What seems to have triggered this development was his enrollment in a men’s weight training class, attended only by men, and his use of the men’s locker room throughout the spring 2011 semester.  This came to the attention of the administration, and he was summoned to a meeting on September 19, 2011, after he enrolled in the class again for the fall semester.  He was told he could no longer use the men’s locker room.  He agreed to use a unisex locker room in the Sports Center, and was told that he could resume using the men’s locker room if his student records were “updated from female to male.”  For that, however, he would have to get either a court order or a changed birth certificate.

Johnston filed a complaint with UPJ’s president, whose response was the same: get a court order or a new birth certificate.  Doing neither, Johnston resumed using the men’s restroom, and was arrested by campus police.  He was barred from the Sports Center, and disciplinary charges were brought against him.  But he persisted in using the men’s restroom, and was ultimately barred from campus, suspended, and expelled in a proceeding culminating in a hearing before a student disciplinary panel.  A University Appeals Board ruled against him.  He lost his scholarship, and the Campus Police pressed criminal charges, leading to a guilty plea on trespass and disorderly conduct charges.  After he was expelled, he claims the University retaliated against him by giving his name to the FBI in connection with an investigation of a bombing threat received by the University.

He filed a federal lawsuit representing himself, alleging violations of the Equal Protection Clause of the 14th Amendment and Title IX of the Higher Education Act as well as various state laws.  Pennsylvania state law does not prohibit discrimination because of gender identity, so his state law claims also asserted sex discrimination.  The Equal Protection Clause has been interpreted by the 11th Circuit Court of Appeals to prohibit gender identity discrimination by a public employer.   Title IX bans sex discrimination by colleges and universities that receive federal funding.

Johnston sought to build on a growing body of court and administrative decisions in other parts of the country recognizing gender identity discrimination as a form of sex discrimination.  Most of those decisions are relatively recent, and as noted above, an important recent breakthrough decision by the EEOC on the restroom access issue was  issued the day after Judge Gibson ruled against Johnston in this case.

Unfortunately for Johnston, the Supreme Court has yet to rule on a gender identity discrimination claim, and neither has the U.S. Court of Appeals for the 3rd Circuit, whose rulings bind the federal courts in Pennsylvania.  Thus, Judge Gibson was facing a question of first impression in terms of binding precedent, and he resolved the question against Johnston.

“At the outset,” wrote Gibson, “the Court notes that society’s view of gender, gender identity, sex, and sexual orientation has significantly evolved in recent years.  Likewise, the Court is mindful that the legal landscape is transforming as it relates to gender identity, sexual orientation, and similar issues, especially in the context of providing expanded legal rights.  Within the context of these expanding rights and protections arise the profound question of self-identity, as exemplified by this case.  But, while this case arises out of a climate of changing legal and social perceptions related to sex and gender, the question presented is relatively narrow and the applicable legal principles are well-settled.”

Finding that the University had a legitimate interest in protecting the “privacy” of other students who did not want to share sex-segregated restroom and locker room facilities with persons of the other sex, Gibson concluded that, whether ruling under the Equal Protection Clause or Title IX, the University had a sufficient justification for excluding Johnston from facilities reserved for men.  His conclusion was bolstered by 3rd Circuit rulings from early in the history of Title IX upholding sex-segregated educational facilities, and he emphasized Johnston’s failure to allege that he had completed sex-reassignment surgery or obtained a new birth certificate indicating his sex as male.  Clearly, the University had stated that it would allow Johnston to use male facilities if he met the University’s requirement of a completed surgical gender transition with such documentation.

While acknowledging the growing body of lower federal court rulings in employment discrimination cases, Gibson insisted that employment rights were different from the issues raised in this case of access to educational facilities, where the University could be legitimately concerned about the safety and privacy interests of other students.  UPJ allowed Johnston to attend classes and use campus facilities for more than two years presenting himself as male, even though he applied as female.  It was when Johnston pushed things forward by enrolling in the men’s weight training class and using the men’s locker room that alarm bells went off about the privacy interests of other students, and he was not barred from participating in that class during the Fall 2011 semester, just from using men’s facilities, with the compromise offer of a gender-neutral restroom that was usually used by referees.

Having decided there was no federal claim in the case, Judge Gibson exercised his discretion to refuse to entertain Johnston’s state law claims.

The retaliation claim failed upon Gibson’s conclusion that Johnston’s sex discrimination claims were not viable.

Gibson’s reasoning and conclusions were contradicted the next day by the EEOC’s ruling in Tamara Lusardi’s case against the Army.  The EEOC concluded that under Title VII, a person identified as male at birth who was diagnosed with gender identity disorder, undertook transitional treatment (hormones), and was presenting as a woman with a legal name change, was entitled to be treated as a woman with access to women’s facilities, regardless whether she submitted to surgical procedures.  The EEOC said that it was not up to the employer to impose its own surgical requirement in order to recognize a person’s desired gender identity.   While Judge Gibson emphasized the privacy interests of students and the University’s overriding concern with the well-being of students, one could advance similar arguments in an employment setting.  In fact, the Army argued in Lusardi’s case that restricting her from using the women’s restroom was largely motivated by concern over the privacy interests of female co-workers.

In both cases, the defendant had offered a gender-neutral restroom facility for the plaintiff’s use.  The EEOC said the Army’s insistence on this was unlawful sex discrimination, but Judge Gibson concluded the opposite.    This tension in the interpretation of laws or constitutional provisions dealing with sex discrimination in gender identity cases awaits resolution at a higher level, either by the Supreme Court or by enactment of a broad non-discrimination law by Congress that includes gender identity.  Neither resolution seems imminent, as the state of Georgia did not seek Supreme Court review of the 11th Circuit case, and there seems little interest in Congress in amending federal sex discrimination laws to encompass gender identity.  Passage of the Employment Non-Discrimination Act would solidify Lusardi’s victory at the EEOC, but would do nothing to affect Johnston’s case, which requires an amendment to Title IX.  The EEOC has undertaken a litigation effort to establish appellate precedents in more circuits finding that gender identity discrimination is sex discrimination, perhaps culminating in a Supreme Court ruling, but a final resolution along those lines is probably years off.  Of course, Johnston might try to appeal to the 3rd Circuit, but that court has not taken a particularly expansive view of the sex discrimination provisions in Title IX.

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