New York Law School

Art Leonard Observations

Gender Identity Discrimination U.S. Appellate Decisions of the 21st Century (So Far)

I am giving a talk at NY Law School under the auspices of the Justice Action Center tomorrow, Oct. 19, about the current controversy over Title IX and the rights of transgender students.  I’ve prepared a case table to distribute at the talk and thought I would post it here as a useful reference.  The table covers U.S. appellate rulings from 2000 to date on gender identity discrimination claims.  I count decisions by the EEOC on appeal from agency determinations to be appellate decisions for purposes of this table.  This table does not include prisoner litigation, benefits claims, name change claims, etc.  The focus is on Title IX, Title VII, other federal sex discrimination laws, and the Equal Protection Clause.

Transgender [Gender Identity] Discrimination Law – Important 21st Century Appellate Rulings:


Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir.), cert. denied, 546 U.S. 1003 (2005) (allowing Title VII sex discrimination claim by transgender woman police officer discharged after transitioning).


Chavez v. Credit Nation Auto Sales LLC, 641 Fed.Appx. 883 (11th Cir. 2016) (“Sex discrimination [under Title VII] includes discrimination against a transgender person for gender nonconformity.”)


Doe v. Brockton School Committee, 2000 WL 33342399 (Mass. App. Ct. 2000) (unofficially published disposition) (junior high school administration preliminarily enjoined from barring transgender student from school based on student’s refusal to wear gender-appropriate clothing as defined by school).


Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) (gender identity is not a suspect classification for Equal Protection purposes).


Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2nd Cir. 2015) (Union violates duty of fair representation under National Labor Relations Act by discriminating against transgender woman in operation of hiring hall program).


G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016), petition for certiorari pending (district court must defer to DOE/DOJ interpretation of Title IX sex discrimination provision allowing transgender high school student to use bathroom facilities consistent with his gender identity, because regulation is ambiguous and agency interpretation is reasonable). See also 136 S. Ct. 2442 (U.S. Supreme Ct., August 3, 2016), granting stay of preliminary injunction pending a decision on petition for certiorari, or if such petition is granted, pending ultimate disposition of appeal.


Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (discrimination against a transgender woman because of her gender identity was sex discrimination for purposes of a 14th Amendment equal protection claim, invoking heightened scrutiny).


Hispanic Aids Forum v. Estate of Bruno, 16 A.D.3d 294 (N.Y. Appellate Division, 1st Dept. 2005) (landlord did not violate NYC Human Rights Law prohibition of gender identity discrimination by insisting that transgender patrons of commercial tenant use public hallway restrooms consistent with their biological sex rather than their gender identity).


Hunter v. United Parcel Service, 697 F.3d 697 (8th Cir. 2012) (granting summary judgment to employer on transgender employee’s Title VII claim because the employer’s decision-maker was unaware of the plaintiff’s gender identity and had a non-discriminatory reason for the discharge).


Lusardi v. McHugh, 2015 WL 1607756 (EEOC, April 1, 2015) (employer must allow a transgender employee to use the restroom consistent with the employee’s gender identity).


Macy v. Holder, 2012 WL 1435995 (EEOC 2012) (gender identity discrimination claims are actionable under Title VII as sex discrimination claims).


Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000) (bank discrimination against a transgender woman violates sex discrimination provision of federal Fair Credit Act).


Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (The Violence against Women Act [VAWA] covers violence against transgender women; the Act was subsequently amended to clarify that it covers violence against persons because of their gender identity).


Smith v. City of Salem, Ohio, 378 F.2d 566 (6th Cir. 2004) (allowing Title VII sex discrimination claim and equal protection claim [heightened scrutiny] by a transgender woman discharged as firefighter after transitioning).

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Arizona Appeals Court Adopts Gender-Neutral Construction of Paternity Statute in Same-Sex Couple Dispute

The Court of Appeals of Arizona ruled on October 11 that as a result of the U.S. Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), holding that same-sex couples have a constitutional right to marry and that their marriages must receive equal treatment under the law to those of different-sex couples, the Arizona courts must construe the state’s paternity statute in a gender neutral way so that the same-sex spouse of a woman who gives birth enjoys the presumption of parental status. McLaughlin v. Jones, 2016 Ariz. App. LEXIS 256, 2016 WL 5929205 (Oct. 11, 2016).  Judge Philip Espinosa wrote for the unanimous three-judge panel.

Kimberly and Suzan were legally married in California in October 2008, shortly before voters approved Proposition 8, which enshrined a different-sex only marriage definition in the state constitution. Shortly thereafter, however, the California Supreme Court ruled that same-sex marriages contracted before the passage of Prop 8 remained valid under California law.  “The couple agreed to have a child through artificial insemination,” wrote Judge Espinosa, “using an anonymous sperm donor selected from a sperm bank.”  Suzan’s efforts to conceive this way were unsuccessful, but Kimberly became pregnant in 2010. Before their child was born, the women moved to Arizona, a state that did not then recognize their marriage or allow second-parent adoptions.

The women made a joint parenting agreement and executed mirror-image wills, declaring “they were to be equal parents of the child Kimberly was carrying,” wrote the court. After their son was born in June 2011, Suzan was the stay-at-home mom while Kimberly resumed her work as a physician.  The women’s relationship deteriorated, however, and when their son was almost two years old, Kimberly moved out of their home, taking the child with her and cutting off his contact with Suzan.

In April 2013, Suzan filed a petition for dissolution of the marriage and a petition for a court order recognizing her parental status in various ways, most significantly decision-making and parenting time. The matter came before Superior Court Judge Lori Jones in Pima County, who decided to stay the proceedings while marriage equality litigation was pending.  In January 2016, six months after the Supreme Court decided Obergefell, Kimberly moved to set the case for trial and Judge Jones ordered briefing concerning “the issue whether the case was a dissolution proceeding with or without children in view of the presumption of paternity under an Arizona statute, Section 25-814(A).  In an April 7, 2016, ruling, Judge Jones found that it would violate Suzan’s 14th Amendment rights not to afford her the same presumption of parenthood that a husband would enjoy.  Thus, she ordered, the case should proceed as a “dissolution action with children.”

Kimberly then moved for a declaratory judgment about whether she would be permitted to introduce evidence to rebut the presumption. On May 2, Judge Jones ruled that Kimberly would not be permitted to attempt to rebut the presumption that Suzan was a parent of their son.  Jones found that there was nothing for Kimberly to rebut, adding that a “family presumption applies to same sex and opposite sex non-biological spouses married to a spouse who conceived a child during the marriage via artificial insemination.”  She relied on Section 25-501, a support statute which is applicable when a child is born as a result of donor insemination, finding that this “necessarily gives rise to parental rights in the non-biological spouse.”  Kimberly appealed this ruling.

On appeal, Kimberly argued that as the child’s biological mother, “she is, by definition, the only parent and therefore the only person who has parental rights, which are fundamental rights,” wrote Judge Espinosa, summarizing Kimberly’s argument. She contended that Judge Jones erroneously construed the paternity statute to encompass same-sex lesbian couples.  Suzan, in response, argued that because of Obergefell, parentage statutes “must be applied and interpreted in a gender-neutral manner so that same-sex couples’ fundamental marital rights are not restricted and they are afforded the same benefits of marriage as heterosexual couples and on the same terms,” wrote Espinosa.

The Arizona statute defining “legal parents” includes “biological” or “adoptive” parents, and “does not include a person whose paternity has not been established pursuant to Section 25-812 [acknowledgment of paternity] or Section 25-814 [presumptions of paternity].” The court found that Section 25-814(A)(1) applies to the McLaughlin case, assuming one applies a gender-neutral interpretation of the statutory language.  This provides that “a man is presumed to be the father of the child if 1. He and the mother of the child were married at any time in the ten months immediately preceding the birth.”

Judge Espinosa wrote, “Enacted well before the Supreme Court decided Obergefell, this statute was written with gender-specific language at a time when the marriage referred to in subsection (A)(1) could only be between a man and a woman.” While accepting Kimberly’s argument that Judge Jones should not have relied on the child support statute to determine Suzan’s status, the court rejected Kimberly’s argument that “it would be impossible and absurd to apply Section 25-841(A)(1) in a gender-neutral manner to give rise to presumption parenthood in Suzan.  Indeed, Obergefell mandates that we do so,” he continued, “and the plain language of the statute, as well as the purpose and policy behind it, are not in conflict with that application.”  Not to do that would deprive same-sex married couples of the same “terms and conditions of marriage” as are enjoyed by different-sex couples, which would be a clear violation of the Supreme Court’s mandate of equal treatment in Obergefell.

“The word ‘paternity’ therefore signifies more than biologically established paternity,” wrote Espinosa. “It encompasses the notion of parenthood, including parenthood voluntarily established without regard to biology.”  He pointed out that the long-established purpose of paternity statutes is “to provide financial support for the child of the natural parent.”  The marital presumption “is intended to assure that two parents will be required to provide support for a child born during the marriage” and serves the additional purpose “or preserving the family unit.”  For these propositions, the court relied on the Massachusetts Supreme Judicial Court’s ruling in Partanen v. Gallagher, decided just days earlier.  The court rejected Kimberly’s argument that there was any reason to treat men and women differently in this regard, after Obergefell.

As to Kimberly’s request to be able to rebut the presumption of parenthood, the court held that it “need not decide how the rebuttal provision in Section 25-814(C) applies in a same-sex marriage because we determine Kimberly is estopped from rebutting the presumption.  Equitable estoppel applies when a party engages in acts inconsistent with a position later adopted and the other party justifiably relies on those acts, resulting in an injury.”

In this case, it was uncontested that the women were lawfully married when Kimberly became pregnant as a result of a donor insemination process upon which both women agreed.  It is not disputed that their son was born during the marriage.  It is not disputed that Suzan was the stay-at-home mom and cared for their son until Kimberly “left the home with him.”  Furthermore, the women had made a written parenting agreement providing that they were to be equal parents of the child.  In that agreement, Kimberly agreed to “waive any constitutional, federal or state law that provide her with a greater right to custody and visitation than that enjoyed by Suzan.”  They even provided in the agreement that if their relationship broke down, Suzan would continue to enjoy parenting rights, and that if second-parent adoption became available in the jurisdiction where they lived, Suzan would adopt the child.  Since their partnership broke up before Obergefell was decided, however, Suzan never had an opportunity to adopt their son.

The court concluded that based on these uncontested facts, the doctrine of equitable estoppel applied, barring Kimberly from attempting to rebut the presumption that Suzan is a parent to their son.  “Suzan is the only parent other than Kimberly,” wrote Judge Espinosa, “and having two parents to love and support [their son] is in his best interest.  Under these circumstances, Kimberly is estopped from rebutting the presumption of parenthood pursuant to Section 25-814(C).”

Consequently, Kimberly’s appeal was denied, and the case will continue before Judge Jones as a dissolution with a child.  It will be up to Judge Jones in the first instance to determine whether it is in the best interest of the child to order Kimberly to allow Suzan to have a continuing relationship, including parenting time and decision-making authority.

Kimberly is represented by Keith Berkshire and Megan Landford, Phoenix.  Suzan is represented by Campbell Law Group, Phoenix, and attorneys from the National Center for Lesbian Rights, San Francisco.  Appointed counsel for the child included law students and supervising faculty from various clinical programs, including the Family and Juvenile Law Certificate Program in Tucson, and Child and Family Law Clinic in Tucson, the Community Law Group, Tucson, and the Child and Family Law Clinic at the University of Arizona Rogers College of Law.



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Gay and Trans Plaintiffs Advance Title VII Discrimination Claims Using Sex Stereotyping Theory

Two federal trial courts have allowed Title VII claims by law enforcement officers, one gay and the other transgender, to proceed over employer protests early in October. On October 4, U.S. District Judge Jennifer A. Dorsey granted summary judgment to Bradley Roberts, a transgender man employed as a police officer by the Clark County School District in Nevada, on his claim of gender discrimination in violation of Title VII and the Nevada Equal Rights Law, while referring claims of harassment and retaliation to a magistrate judge for trial.    Roberts v. Clark County School District, 2016 U.S. Dist. LEXIS 138329, 2016 WL 5843046 (D. Nevada).  On October 7, Chief U.S. Magistrate Judge John E. Ott of the Northern District of Alabama denied the City of Pleasant Grove’s motion to dismiss a Title VII claim by an openly gay man, Lance Smith, who had been discharged from the city’s Police Department.  Smith v. City of Pleasant Grove, 2016 U.S. Dist. LEXIS 139575, 2016 WL 5868510 (N.D. Alabama).  In both cases, the judges referred to the Supreme Court’s 1989 decision, Price Waterhouse v. Hopkins, 490 U.S. 228, which endorsed the view that employees who suffered adverse consequences because of their failure to comply with the employer’s sex-stereotypical views could sue for sex discrimination under Title VII.

In 2012, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII, issued an administrative decision finding that the statute forbids gender identity discrimination, and the EEOC issued a similar ruling regarding sexual orientation discrimination in 2015. The EEOC rulings relied upon and extended the sex-stereotyping theory.  The agency’s rulings are not binding on the federal courts, but federal trial judges have begun over the past year to acknowledge them and, in some cases, to follow their reasoning.

The Clark County School District first hired Bradley Roberts as a campus monitor in 1992. At that time Roberts was known by a female name and hoped to become a police officer. Roberts graduated from a law enforcement academy in 1994 and was then hired by the District to be a police officer, a position Roberts held without incident for seventeen years until he began to transition.

In 2011, Roberts began dressing as a man, grooming as a man, and identifying himself as a man. He started using the men’s bathroom at work, leading to complaints from some of the other officers.  His commanding officers confronted him for an explanation, which he gave, explaining that he was transgender and in the process of transitioning.  He said he wanted to be known henceforth as Bradley Roberts and to use the men’s bathrooms.  They told him he could not do so, but that because he now appeared as a man, he should also refrain from using the women’s bathrooms.  There were some gender-neutral bathrooms in the District schools, and he was instructed to use them “to avoid any future complaints.”  Roberts followed up by sending  a letter to his superiors summarizing what he had told them and again expressing his desire to be called Bradley Roberts, for co-workers to use male pronouns in referring to him, and he promised to comply with the men’s grooming code for the District police force.

Roberts’ letter prompted another meeting with his superiors and his union representative. His request to use men’s bathrooms was again denied, and he was told he would not be referred to as a man or allowed to use the men’s bathrooms until he could provide official documentation of a name and sex change.  However, two days later, at yet another such meeting, he was told that the District would allow him to use a man’s name informally, but all “official and formal documents” would continue to use his female name until he got a court-ordered name change and processed it through the Human Resources department.  He would still be required to use only the gender-neutral bathrooms.


Roberts then received a proposed memo summarizing these arrangements, including his concern that co-workers and commanding officers be cautioned that asking “below the belt” questions about his anatomy “may constitute sexual harassment.” Roberts thought this memo was only going to be distributed among supervisors and managers, and claims he was “blindsided” when it went by email to everybody in the Department, generating questions and what he considered to be harassing conduct from some co-workers.

In December 2011, a court granted his name change petition, he updated his driver’s license to reflect his name and gender, and he submitted paperwork to Human Resources, which resulted in yet another email going out to the entire department explaining his name change and stating that it would take effect for purposes of his official records. However, he subsequently discovered that he was still listed as “female” on the new insurance card he was issued for 2012.

Roberts then filed a discrimination complaint with the Nevada Equal Rights Commission, alleging gender identity discrimination in violation of state law. (Nevada’s statute specifically includes gender identity.)  He cited the bathroom ban as discriminatory, and described several incidents, including the meetings with supervisors as harassment.  The District claimed that the steps it had taken had resolved any problem and refused to participate in mediation with the NERC, but in the face of a scheduled hearing the District issued a new bathroom policy, allowing Roberts to use the men’s bathrooms.  NERC then closed Roberts’ discrimination case as “moot,” but he filed a second charge, citing the bathroom ban, offensve comments from co-workers, and the department-wide emails that had essentially “outed” him to the Department without his permission.  He also alleged retaliation for filing the earlier charges and improper questions, comments and gestures by co-workers.  Ultimately he received a “right-to-sue” letter from the EEOC and sued the District in federal court.

In response to motions for summary judgment, Judge Dorsey undertook a thorough historical review of the treatment of gender identity under Title VII, emphasizing how the 9th Circuit Court of Appeals, which has appellate jurisdiction over the federal trial courts in Nevada, has embraced a broad understanding of sex discrimination under Title VII and other federal laws, such as the Violence Against Women Act.  She explained how the Price Waterhouse case had generated a growing body of decisions in other circuits allowing gender identity claims under Title VII in reliance on the sex stereotyping theory, and she noted the EEOC’s decisions in 2012 and 2015 extending this to bathroom access for transgender employees.

“I join the weight of authority and hold that discrimination against a person based on transgender status is discrimination ‘because of sex’ under Title VII,” she wrote, continuing that “because it appears that the Ninth Circuit would hold that gender-identity discrimination is actionable under Title VII, I see no reason to depart from the heavy weight of this authority. Nothing in the few contrary decisions cited by the school district persuades me otherwise.  The contrary Seventh and Tenth Circuit decisions provide no cogent analysis of Title VII’s language or the Supreme Court case law,” as they relied heavily on outdated precedents.  Further, she concluded that Roberts was entitled to summary judgment on his sex discrimination claims, because it was clear that he had suffered discrimination on that basis at the hands of the District.

“Direct evidence established the department’s discriminatory intent here,” wrote Judge Dorsey. “It banned Roberts from the women’s bathroom because he no longer behaved like a woman.  This alone shows that the school district discriminated against Roberts based on his gender and sex stereotypes.  And the department also admits that it banned Roberts from the men’s bathroom because he is biologically female.  Although CCSD contends that it discriminated against Roberts based on his genitalia, not his status as a transgender person, this is a distinction without a difference here.  Roberts was clearly treated differently than persons of both his biological sex and the gender he identifies as – in sum, because of his transgender status.”

Dorsey found that the bathroom ban was “an adverse employment action,” that Roberts was treated differently than similarly situated employees, and that the District failed to articulate a legitimate non-discriminatory reason for restricting his bathroom use.

However, she found that factual disputes precluded granting summary judgement on the harassment and retaliation claims, since there was a dispute about whether the conduct experienced by Roberts was sufficiently severe to meet the harassment standard or whether any adverse treatment he experienced was actually a response to his complaining about his treatment. Thus, summary judgment was denied as to those charges, and the judge referred them to a magistrate judge for further proceedings to resolve those factual disputes.

The Smith case involves straightforward sexual orientation discrimination by a local Alabama police department. Lance Smith interviewed with Lt. Jennifer Fredrick for an available position in the Pleasant Grove Police Department (PGPD) in 2014.  She told him he would be offered a position at a specific salary.  At the end of the interview, Smith told Fredrick that he is gay and has a same-sex partner.  Smith says that Fredrick’s demeanor immediately changed and she advised him to “reconsider” his desire to work in the PGPD.  However, after the interview Smith received an email from Fredrick informing him that “his homosexuality would not be an issue,” wrote Judge Ott.  This was evidently untrue, to judge by subsequent events related by Smith in his Title VII complaint.

After Smith completed the required physical exam, he was directed to meet with the Chief of Police, Robert Knight, who told him he would receive a lower salary than he had been promised by Lt. Fredrick. In his complaint, he claims he was paid $5,000 less than other new recruits.  Smith claims that he received only two weeks of field training instead of the three normally provided to new recruits, and then was assigned to a night shift patrol on his own rather than the usual assignment for new officers to patrol with a partner.  Smith claims that he was informed by the night shift sergeant that “Lt. Fredrick had instructed the sergeant to write down everything Smith did wrong so Lt. Fredrick could fire him.”  Smith says another officer warned him to be “careful” because a police corporal was a “homophobe.”

After a few months, Lt. Fredrick told Smith he was “not going to work out” and needed to resign, but refused to tell him what he had done wrong. In fact, he claims, she told him he was a good officer and would find another department that would “fit” him better.  Fredrick gave him a previously-prepared resignation letter and told him he would be grounded, suspended, and then fired if he did not resign.  Smith signed the letter and attempted to find police work elsewhere in the county, relying on Fredrick’s statement that she would advise prospective employers and the Jefferson County Personnel Board that he resigned in good standing, but he claims he was unable to find employment because Knight and Fredrick had “falsely reported that he was an unsatisfactory employee.”

Smith filed a sex discrimination charge with the EEOC, which issued him a right to sue letter. He filed his suit on March 1, 2016, claiming he was subjected to “discriminatory terms and conditions of employment because of his sexual orientation, and stereotypes associated with his sex and his gender,” in violation of Title VII.  He also alleged a violation of his rights under the Equal Protection Clause of the 14th Amendment, and asserted a state tort claim that the City, Knight and Fredrick had interfered with his “contractual or business relationship with prospective employers” by giving him a bad employment report.  The defendants moved to dismiss on various grounds, including the claim that Title VII does not apply to his case.

“Traditionally, court in this circuit have held that Title VII does not provide a remedy for discrimination based on sexual orientation,” wrote Judge Ott, citing a long list of cases, and adding a list of cases from other circuits with similar holdings. “The Equal Employment Opportunity Commission, however, recently concluded that ‘an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII,’” he wrote, and “at least one court in this circuit, noting that the question is an ‘open one,’ has agreed with the EEOC and has found that ‘claims of sexual orientation-based discrimination are cognizable under Title VII.’”

More importantly, wrote Ott, “Smith has also alleged discrimination based on his failure to conform to sex and gender stereotypes.” While Ott rejected Smith’s argument that discrimination based on his association with his male partner is prohibited sex discrimination, he found that the 11th Circuit, which has appellate authority over federal courts in Alabama, had accepted a broad view of sex discrimination in the Brumby case in 2011, involving a transgender state employee asserting an equal protection claim.  In that case, the 11th Circuit relied on sex-stereotype theory to conclude that Brumby had a valid equal protection claim, finding that his claim should be analyzed under the same “heightened scrutiny” standard used for sex discrimination claims.

“In his amended complaint,” wrote Ott, “Smith alleges that ‘sexual and gender-stereotyping comments’ were made to him during his employment with the Pleasant Grove Police Department, including the comment that ‘men should be men,’ which led him to conclude that other members of the department did not feel that he was ‘manly’ enough to be a police officer. He also alleges that other officers made jokes about his attire and mannerisms.  These factual allegations are ‘enough to raise a right to relief [under Title VII] above the speculative level,’” Ott continued, citing a Supreme Court ruling on the required factual allegations to ground a civil complaint.  “They are sufficient to allow the court to draw the reasonable inference that the City of Pleasant Grove could be liable for discriminating against Smith because of his failure to conform to sex and gender stereotypes.”  Thus, Ott refused to dismiss the Title VII claim, which will next proceed to discovery.

However, Ott dismissed the Equal Protection claim, asserting that Smith had failed to allege facts that would support an inference that he was denied equal protection of the laws because he failed “to adequately allege the existence of a similarly situated comparator, an essential component of an equal protection claim. To prevail on his equal protection claim, Smith must show ‘a satisfactory comparator who was in fact similarly situation and yet treated differently.’”  Ott found two relevant allegations in Smith’s complaint: that he was paid less than “similarly situated employees” and that he was “singled out because of his association with his male partner while similarly situated employees were not.” But Ott found that Smith had failed to identify particular specific “similarly situated employees” to illustrate these claims.  “He does not identify a single comparator who was allegedly treated more favorably than he was,” concluded Ott.

However, Judge Ott refused to dismiss Smith’s claim against Chief Knight and Lt. Fredrick in their individual capacities for “interference with a contractual or business relationship,” rejecting their argument that any adverse comments they made were privileged due to the city’s relationship with the county personnel board. “In their individual capacities,” wrote Ott, “Chief Knight and Lt. Fredrick did not have a ‘legitimate economic interest in and a legitimate relationship to’ any contract of business relationship Smith might secure through the Jefferson County Personnel Board.”  On the other hand, Ott rejected Smith’s claim that the City could be held liable for maintaining an “official custom or policy” of discrimination, finding insufficient factual allegations to support such a claim.

Bradley Roberts is represented by a team of lawyers led by Jason Maier of Las Vegas, with amicus assistance from Lambda Legal staff lawyers and cooperating attorneys. Lance Smith is represented by Cynthia Wilkinson of Birmingham, Alabama.

Judge Dorsey was appointed by President Barack Obama. Judge Ott was appointed by President Bill Clinton.

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Mass. SJC Rules Affirmatively on Same-Sex Partner Parentage Claim in Partanen v. Gallagher

The Massachusetts Supreme Judicial Court (SJC) ruled on October 4 that the former same-sex partner of a woman who gave birth to two children through donor insemination during the women’s relationship can seek to establish full legal parentage of the children under the state’s statute concerning parentage of children born out of wedlock. Partanen v. Gallagher, SJC-12018, 2016 Mass. LEXIS 759, 2016 WL 5721061.

Although the state’s courts have in the past recognized various rights for co-parents in similar cases using a “de facto parent” concept, this unanimous ruling is the SJC’s first to take advantage of a law providing that “words of one gender may be construed to include the other gender and the neuter” to adapt a statute that was originally intended to allow unmarried men to establish their paternity of children born “out of wedlock” to their women companions, and to repurpose the statute as a vehicle to establish parental rights for unmarried same-sex partners.

Justice Barbara Lenk wrote for the unanimous seven-member court.

Karen Partanen and Julie Gallagher began their “committed relationship” as a couple in Massachusetts in 2001. The next year they moved to Florida, where they bought a house together in 2003.  In 2005 they decided to use donor insemination to have children.  The plan was for each of the women in turn to be inseminated.  Partanen’s attempt in 2005 was unsuccessful, but Gallagher’s subsequent attempt was successful and she gave birth to their daughter in 2007.  Gallagher was inseminated again in 2011, giving birth to a son.

These procedures were performed with the full cooperation and involvement of Partanen, who was present at the birth of the children. Partanen did not adopt the children, although in 2010 a Florida appeals court struck down the state’s statutory ban on gay people adopting children, but, according to her complaint in this lawsuit, she was fully involved as a parent, including personal contact, financial support, and decision-making.

After their son was born, the family moved back to Massachusetts. Although by then same-sex marriage was legal in Massachusetts, they did not marry. Shortly after the move, they ended their relationship and Partanen moved out.  She filed an action to establish “de facto” parentage in February 2014, requesting visitation and shared custody.  In September 2015, a Family Court judge ruled that she was a “de facto” parent, ordered visitation, and required her to pay child support to Gallagher.  An appeal of that ruling is pending.  Meanwhile, however, in October 2014 Partanen filed a separate action “to establish [full legal] parentage,” which Gallagher moved to dismiss, arguing that “full parentage” could only be achieved under the paternity statute by a biological parent.  Probate and Family Court Judge Jeffrey A. Abber granted Gallagher’s motion to dismiss the parentage case.

If one reads the relevant statute without taking into account the state’s general statutory directive on gender neutrality in interpretation, one could easily see the basis for Judge Abber’s ruling. The provision falls within the chapter of the state’s laws titled “Children Born Out of Wedlock,” Chapter 209C.  The statute extends to “children who are born to parents who are not married to each other.”  The various sections refer to “paternity” and authorize the courts to determine whether somebody is a child’s legal father. The statute recognizes a “presumption of paternity” in various situations.  The one most relevant here is that “a man is presumed to be the father of a child” that is born out of wedlock if “he, jointly with the mother, received the child into their home and openly held out the child as their child.”

Gallagher argued, and the trial judge agreed, that this statutory scheme was not intended to provide a vehicle for somebody to establish legal parental rights over a child to whom the party was not biologically related. The SJC disagreed, pointing out that the statute does not state anywhere that the person seeking to establish parental rights has to be biologically related to the child.  “While the provisions at issue speak in gendered terms,” wrote Justice Lenk, “they may be read in a gender-neutral manner, to apply where a child is ‘born to [two people],’” not just a man and a woman, and the child “is received into their joint home, and is held out by both as their own child.”  Consequently, she wrote, “The plain language of the provision, then, may be construed to apply to children born to same-sex couples, even though at least one member of the couple may well lack biological ties to the children.”

Furthermore, such an interpretation was in accord with the overall purpose of the statute, which, as “laid out in its first sentence, is to provide all ‘children born to parents who are not married to each other’ . . . the same rights and protection of the law as all other children.”

The court strengthened its interpretation with a telling analogy to the use of reproductive technology by different-sex couples. Clearly, a cohabiting but unmarried man and woman who resort to donor insemination to conceive a child because the man is infertile could make use of this statute to establish the man’s paternity without any express requirement in the statute that he prove a biological relationship to the child.  That is, in fact, one of the normal uses of the statute.  If the legislature intended to make sure that all children born to unmarried parents have the same rights, shouldn’t children born to unmarried same-sex couples have the same rights as well?

“Here, had [the children] been born to a married couple using artificial reproductive technology, they would have had two parents to provide them with financial and emotional support,” wrote Justice Lenk. “We decline to read into the statute a provision that leaves children born to unmarried couples, using the same technology, with only one parent.”

Furthermore, she pointed out that the court had in the past recognized an interpretation of another provision that also would “recognize parentage in the absence of a biological relationship,” a provision under which parentage may be established through a “written voluntary acknowledgment of parentage executed jointly by the putative father and the mother of the child.” The court held years ago that such an acknowledgment does not require that the putative father have any genetic relationship to the child.  Under this ruling, same-sex couples can avail themselves of the same provision.  This only works, of course, if both parents are willing to sign such a document.

Gallagher argued that because Partanen lacks a biological connection to the children, they were not “born to” her, and thus do not fall within the scope of the statute. She bolstered this argument by referring to a provision authorizing the family court to order genetic testing of the putative father on a “proper showing” by the moving party.  That provision was clearly intended to allow single mothers seeking child support from the biological fathers of their children to prove genetic paternity in order to subject the men to their parental support duty.  “Where, as here, the parentage claim is not based on a genetic relationship,” wrote Justice Lentz, “Gallagher, as a moving party, cannot show such testing would be relevant to the claim at issue, and therefore, no ‘proper showing’ is possible.”

Ultimately, the court concluded that the facts alleged by Partanen in her complaint should have been sufficient to withstand Gallagher’s motion to dismiss the claim, and if upon remand the trial court finds the factual allegations to be true, Partanen will enjoy the presumption of parentage authorized by the statute and can seek visitation and custody on the same basis as any other person who is presumed to be a parent. If the Family Court judge finds it to be in the best interest of the children, Partanen would be awarded the same custody and visitation rights that any legal parent could seek after parents have ended their relationship with each other.

Although Massachusetts courts had previously recognized the ability of same-sex partners to seek “de facto” parental status, which accorded some rights, the court emphasized that full legal parentage involves the same rights that a biological or legal adoptive parent would enjoy.

The court did not rule on alternative constitutional claims raised by Partanen, resting its decision entirely on construction of the Massachusetts statutes. The court’s opinion does not mention any attempt by Gallagher to argue that treating Partanen as a presumptive parent would violate Gallagher’s constitutional due process rights as a “natural parent,” so it is unlikely that she would be able to seek U.S. Supreme Court review of this decision.

Mary Bonauto, the Civil Rights Project Director at GLAD: Legal Advocates & Defenders, the Boston-based New England GLBT rights public interest law firm, represents Partanen with co-counsel Elizabeth A. Roberts, Teresa Harkins La Vita, Patience Crozier and Joyce Kauffman. Bonauto gave the oral argument in the U.S. Supreme Court in 2015 that led to nationwide marriage equality in Obergefell v. Hodges, and she also argued to the Massachusetts SJC in 2003, resulting in the nation’s first affirmative marriage equality ruling by a state’s highest court.

Jennifer M. Lamanna represents Gallagher. The SJC received amicus briefs, all in support of Partanen’s appeal, from: C. Thomas Brown for Greater Boston Legal Services; Emily R. Shulman, Brook Hopkins, and Adam M. Cambier for the American Academy of Assisted Reproductive Technology Attorneys; Abigail Taylor, Gail Garinger, Brittany Williams and Andrea C. Kramer for the Massachusetts Attorney General’s Office; and Shannon Minter, Marco J. Quina, and Emma S. Winer for a group of law professors specializing in family law issues.  The case seems to have flown below the radar of groups that usually file opposition amicus briefs in such cases.

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Federal Court Rejects Transgender Citizen’s Complaints of Unconstitutional Treatment by NYPD Officers

In a decision notably lacking in empathy for transgender people and the slights and humiliations they suffer on a regular basis, U.S. District Judge Gregory H. Woods granted New York City’s motion to dismiss a complaint by Marlow White, self-identified as a man of transgender experience, that his 14th Amendment rights were violated by NYPD officers and the City when the police failed to respond to the continued verbal harassment of White by Napoleon Monroe, a man who frequented the neighborhood where White lived and made various threats against him as well as subjecting him to verbal harassment.  White v. City of New York, 2016 WL 4750180 (S.D.N.Y., Sept. 12, 2016).

According to the court’s summary of the factual allegations, the police officers who were summoned by White when he was continually accosted by Monroe were blatantly transphobic, treating him as somebody unworthy of respect and suggesting that until somebody was seriously injured, they would not lift a finger to help.

Among other things, Judge Woods’ opinion concludes that in the absence of a 2nd Circuit ruling holding that gender identity is a suspect classification (or, as the judge phrases it, that discrimination against transgender people is a form of sex discrimination and thus subject to heightened scrutiny review, as the 11th but not the 2nd Circuit has held), the refusal of police officers to take White’s complaints or do anything to stop Monroe’s harassment of him is subject only to rational basis review.  Under that standard, Woods found that the discretionary decision by police officers not to arrest somebody who had yet to commit a violent crime against the complainant was not so arbitrary as to lose them the shield of qualified immunity.

Furthermore, the judge found that under Due Process jurisprudence the police officers had no obligation to prevent one citizen from subjecting another to verbal harassment and threats, so long as the police were not enabling or encouraging actual harm to the complainant.

The judge found that White’s allegations of past incidents involving the police and their dealings with transgender people were not sufficient to document some sort of official NYPD policy of disparate treatment of transgender people that would be necessary to impose municipal liability, or of a failure to properly train the police about how to interact with transgender people. One suspects that transgender rights organizations could supply a panoply of evidence about police disrespect for the human rights and dignity of transgender people, but unfortunately the evidence presented in response to this dismissal motion seems to have been minimal.

“White’s conclusory allegations regarding the City’s alleged failure to train its police officers fail to state a claim,” wrote the judge.  “He states that ‘adequate training regarding issues peculiar to persons of trans experience will make it substantially less likely that the rights of persons of trans experience will be violated.  But the facts in the Amended Complaint do not plead a pattern of similar constitutional violations, such that the City was on notice that different, or additional, training was needed.”  Quoting a Supreme Court ruling, Connick v. Thompson, 563 U.S. 51, 62 (2011), “Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.”  Judge Woods found that White “has failed to establish a history of NYPD officers mishandling situations involving persons of trans experience such that the City was deliberately indifferent by failing to provide the unspecified training that he desires.  Accordingly, because White has failed to allege either a widespread practice or a failure-to-train claim, his Monell claim is dismissed without prejudice.”

White is represented by Donald Robert Dunn, Jr., of the Bronx.  The dismissal without prejudice suggests that he could come back with a new complaint on the municipal liability issue if he can put together a more complete factual record of the NYPD’s failure to provide non-discriminatory law enforcement protection to trans citizens.

But we suspect that if top management officials in the NYPD, the Corporation Counsel’s office and the De Blasio Administration took the time to read Judge Woods’ summary of White’s factual allegations, they might quickly conclude that it would be prudent to provide appropriate training at the precinct level to NYPD officers on how to deal sensitively with such issues, as a matter of good public policy if not constitutional obligation.  After all, the articulated goal of the city administration is to improve the quality of life of NYC residents by cultivating a collaborative relationship between the citizenry and the law enforcement community.  And, it is possible that the 2nd Circuit will eventually decide that gender identity discrimination is a form of “sex discrimination,” as the 11th Circuit, the EEOC and other federal agencies have concluded, and the activities of the NYPD in this regard will be subjected to heightened scrutiny in appropriate cases.

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Vermont Supreme Court Finds Civil Union Dissolution Statute Still Relevant After Obergefell


Responding to the difficulties encountered by same-sex couples who entered into Vermont civil unions (and, beginning in 2009, same-sex marriages) and then lived in other states where their legal unions were denied recognition for purposes of dissolution or divorce, Vermont amended its divorce and annulment law in 2012 to provide that couples legally united in Vermont and living elsewhere who sought to dissolve their unions but had no vehicle to do that in the courts of their domiciliary state could obtain a dissolution in Vermont without meeting any residency requirement there. (Traditionally, states have required that at least one spouse be a resident of the state in order to seek a divorce in its courts.)  In Solomon v. Guidry, 2016 VT 108, 2016 Vt. LEXIS 111, 2016 WL 5338492 (September 23, 2016), the court unanimously ruled that this law remains relevant, even though the result of Obergefell v. Hodges is that all states must recognize legally contracted same-sex marriages, because there is still no uniformity about interstate recognition of civil unions.

Melissa Solomon and Jane Guidry entered into a civil union on July 24, 2001, in Brattleboro, Vermont, shortly after Vermont became the first state in the nation to provide civil unions for same-sex couples. They currently reside in Wake County, North Carolina.  They separated by May 2014. They have no children.  In 2015, they agreed to dissolve their civil union to avoid any legal complications from its continued existence, and filed an uncontested complaint in the Vermont Superior Court, Windham Division, accompanied by a stipulation as required by the amended divorce statute.  Judge Karen R. Carroll dismissed the complaint, finding that “the parties failed to produce evidence that they attempted to obtain a dissolution of the civil union in North Carolina.”  Judge Carroll opined that if they first sought such a dissolution in the North Carolina courts and were turned down, “the proper appeal should be taken here.”  Carroll asserted that if the Vermont courts “continue to accept these filings and allow courts in other states to ignore precedent [set by Obergefell], the situation will never be resolved.”

Solomon appealed the dismissal, arguing that the court had exceeded its constitutional authority by imposing a requirement not specifically required by the statute, which was reversible error, by incorrectly applying Obergefell, which does not deal with the recognition of civil unions across state lines, and by misconstruing the plain language and legislative intent of the statute, which was intended to provide a way for out-of-state couples who entered civil unions in Vermont to be able to dissolve them if they lived in states that did not recognize them.

Surveying the legislative history of the statutory provision in question, 15 Vt. Stat. Ann. Section 1206(b), the court noted that the purpose of the amendment passed in 2012 was “to provide access to a civil union dissolution or a divorce to nonresident couples joined in a Vermont civil union or Vermont marriage who are legally barred from dissolving the union in their state of residence.” The Legislature specifically noted: “While an opposite-sex out-of-state couple who marries in Vermont can get divorced in the state of residence of either party, most same-sex out-of-state couples joined in a Vermont civil union or marriage do not have this option,” since at that time most states recognized neither civil unions nor same-sex marriages.  Of course, Obergefell changed this situation respecting same-sex marriages as of June 26, 2015, but the U.S. Supreme Court did not address the issue of civil unions, which was not presented in the context of the marriage equality litigation.

Under the Vermont statute, a nonresident civil union can be dissolved by the Family Court in the county where the civil union certificate was originally filed if the following criteria are met: the civil union was established in Vermont, neither party’s state of legal residence recognizes the Vermont civil union for purposes of dissolution, there are no minor children who were born or adopted during the civil union, and the parties file a stipulation together with a complaint that resolves all issues in the dissolution action.  The exclusion of couples who have children is likely due to the fact that a Vermont court would not have jurisdiction over non-resident children for the purposes of deciding issues of their custody and visitation.  This process is not available for contested dissolutions that would involve litigation over property disposition, for example, since a Vermont court would not have jurisdiction to allocate property rights of non-residents, either.  Both parties have to sign the stipulation, submitted under oath, which has to attest that all these criteria are met, including the criterion that their domiciliary states do not recognize the civil union or provide a legal mechanism for its dissolution.

Wrote Justice Marilyn Skoglund for the court, “Because civil marriage and civil unions remain legally distinct entities in Vermont and because Obergefell mandated that states recognize only same-sex marriages, uncertainty remains as to whether Obergefell requires other states to recognize and dissolve civil unions established in Vermont.  For that reason, Section 1206(b) is still necessary to remedy the issue originally addressed by the Legislature in 2012.”  In this case, the parties followed the requirements of that statute to the letter, and went even further by submitting an affidavit from a North Carolina attorney whose practice is “dedicated to providing services to the lesbian, gay and transgender community, including domestic relations, estate planning, and life planning.”  In this affidavit, the attorney attested that while North Carolina “grudgingly” follows Obergefell and recognizes same-sex marriages for divorce proceedings, “it will accord no recognition to a ‘civil union’ or ‘domestic partnership’ for [dissolution] purposes.”  The Vermont Supreme Court agreed with Solomon and Guidry that this affidavit is sufficient to satisfy the criteria of the statute, and there was no need for them to go through the motions of seeking a dissolution in a North Carolina court before applying for one in Vermont.

“It would reach beyond both the written letter and the Legislature’s intent to hold that the ‘acknowledgment’ must also include actual showing of an attempt to file in the other state,” wrote Justice Skoglund. The court reversed the trial judge’s ruling and remanded the case for that court to “follow the dictates of Section 1206(b).”

Solomon is represented by Amy K. Butler of Montpelier, Vermont. Guidry, who urged the court to grant Solomon’s appeal, is pro se in this matter.

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Two Federal Judges Order Public Schools to Let Transgender Students Use Gender-Appropriate Restrooms

Within days of each other, two federal district judges have issued preliminary injunctions requiring public schools to allow transgender students to use restrooms consistent with the students’ gender identity. U.S. District Judge Algenon L. Marbley of the Southern District of Ohio, based in Cincinnati, issued his order on September 26 against the Highland Local School District on behalf of a “Jane Doe” 11-year-old elementary school student, in Board of Education v. U.S. Department of Education, 2016 U.S. Dist. LEXIS 131474, 2016 WL 5239829.   U.S. District Judge Pamela Pepper of the Milwaukee-based Eastern District of Wisconsin, issued her order on September 22 against the Kenosha Unified School District on behalf of Ashton Whitaker, a high school student, in Whitaker v. Kenosha Unified School District No. 1, 2016 U.S. Dist. LEXIS 129678, 2016 WL 5372349.  Jane Doe is a transgender girl, Ashton Whitaker a transgender boy.

Although both cases are important, producing essentially the same results under Title IX and the Equal Protection Clause of the 14th Amendment, Judge Marbley’s ruling is more significant because the judge sharply questioned the jurisdictional basis for a nationwide injunction issued on August 21 by U.S. District Judge Reed O’Connor of the Northern District of Texas, Wichita Falls, which ordered the Obama Administration to refrain from initiating investigations or enforcement of violations of Title IX of the Education Amendments of 1972 based on gender identity discrimination.  O’Connor was ruling in a case initiated by Texas in alliance with many other states challenging the validity of the Obama Administration’s “rule” that Title IX, which prohibits sex discrimination by educational institutions that receive federal funds, prohibits gender identity discrimination and requires schools to allow transgender students to use facilities consistent with their gender identity.

Neither the Highland nor Kenosha cases were affected by O’Connor’s order in any event, since these cases were already under way before O’Connor issued his order and they involved district court complaints filed by the individual plaintiffs, not by the Department of Education.

The Doe v. Highland case before Judge Marbley is in part a clone of the Texas case pending before O’Connor. When a dispute arose about the school’s refusal to allow a transgender girl to use the girls’ restrooms and the Department of Education became involved in response to a complaint by the girl’s parents, the school district, abetted by Alliance Defending Freedom (ADF), the “Christian” law firm that is also providing representation to other challengers of the Administration’s position, rushed into federal district court to sue the Department of Education and seek injunctive relief.

As the case progressed, Jane Doe’s parents moved on her behalf to intervene as third-party plaintiffs against the school district. ADF pulled in many of the states that are co-plaintiffs in the Texas case and a clone case brought in federal district court in Nebraska, and moved to make them amicus parties in this case.  At the same time, pro bono attorneys from Pillsbury Winthrop Shaw Pittman LLP, a large firm based in Washington, D.C., together with local counsel from Columbus, Ohio, organized an amicus brief by school administrators from about twenty states in support of Jane Doe.  After being allowed to intervene as a plaintiff, Doe moved for a preliminary injunction to require the Highland Schools to treat her as a girl and allow her to use appropriate restrooms.

Judge Marbley first confronted the federal government’s argument that the court did not have jurisdiction over the Highland school district’s attack on the Administration’s interpretation of Title IX. Unlike Judge O’Connor in Texas, Judge Marbley concluded that the government was correct.  If a school district wants to attack the government’s interpretation of Title IX, he found, it must do so in the context of appealing an adverse decision by the Department of Education ordering it to comply with the interpretation or risk losing federal funding.  Marbley pointed out that under the administrative process for enforcement of Title IX, no school would lose funding before a final ruling on the merits is rendered, a process that would involve administrative appeals within the Department followed by an appeal to the U.S. Court of Appeals with a potential for Supreme Court review of a final ruling by the court.  Thus, the school district had no due process argument that it stood to lose funding without being able to seek judicial relief if it were deprived of the ability to sue directly in the district court.  Marbley found that there was no authorization under the statute or the Administrative Procedure Act (APA) for a school district to file a lawsuit directly in federal district court challenging an interpretation of Title IX.

Part of ADF’s argument in its lawsuits challenging the Obama Administration’s guidance to the school districts is that by not embodying this interpretation in a formal regulation, the Administration had improperly evaded judicial review, since the APA authorizes challenges to new regulations to be filed promptly in federal courts of appeals after final publication of the regulation in the Federal Register. ADF argued that the Guidance was, in effect, a regulation masquerading as a mere “interpretation.”  Judge O’Connor bought the argument, but Judge Marbley did not.

Marbley was dismissive of Judge O’Connor’s determination that he had jurisdiction to hear the Texas case. “The Texas court’s analysis can charitably be described as cursory,” he wrote, “as there is undoubtedly a profound difference between a discrimination victim’s right to sue in federal district court under Title IX and a school district’s right to challenge an agency interpretation in federal district court.  This Court cannot assume that the first right implies the second.”  Marbley went on to discuss in detail Supreme Court rulings on the question whether there was a private right of action under various federal statutes that did not expressly authorize lawsuits in the district courts, and the circumstances under which such authorization can be found by implication, as the courts have done to allow students to file Title IX lawsuits.  Marbley rejected the Highland school district’s argument that once Jane Doe had intervened, she would provide a basis for the court to assert jurisdiction over the school district’s claim.  Actually, he pointed out, the school district could raise its arguments against the Obama Administration’s interpretation of Title IX in response to Jane Doe’s lawsuit, and need not maintain a lawsuit of its own.  Thus, he concluded, the school district’s complaint should be dismissed on jurisdictional grounds.

In both cases, the attorneys for the transgender students argued alternatively under Title IX and under the Equal Protection Clause. In both cases, they argued that because gender identity discrimination is a form of sex discrimination, the Equal Protection analysis should receive the same “heightened scrutiny” that courts apply to sex discrimination claims, which throws the burden on the government to show that it has an exceedingly important interest that is substantially advanced by the challenged policy.

Here the cases diverged slightly in the judges’ legal analysis. Both judges found that the transgender plaintiffs were likely to succeed on the merits of their claims under both Title IX and the Equal Protection clause, that they were suffering harm as a result of the challenged policies, and that any harm the school districts would suffer by issuance of preliminary injunctions was outweighed by the plaintiffs’ harm if injunctions were denied.  In addition, both judges found that the injunctions were in the public interest.  But Judge Marbley additionally found that heightened scrutiny applied, while Judge Pepper, more conservatively, reached her conclusion by applying the rational basis test.  In either case, however, the judges found that the school districts’ justifications for their exclusionary policies lacked sufficient merit to forestall preliminary relief against them.

Significantly, Judge Marbley’s conclusion that heightened scrutiny applied to this case drew support from the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.  He used Obergefell to question the continuing relevance of prior court of appeals analyses of equal protection “in light of Obergefell’s emphasis on the immutability of sexual orientation and the long history of anti-gay discrimination. Like the district courts that examined suspect classification based on sexual orientation,” he continued, “this Court will proceed to conduct its own analysis of the four-factor test to determine whether heightened scrutiny applies to a transgender plaintiff’s claim under the Equal Protection Clause.”  Marbley based his analysis of the four-factor test on a district court ruling last year in New York, Adkins v. City of New York, which found all factors to be satisfied to justify heightened scrutiny, including a finding that “transgender people have ‘immutable and distinguishing characteristics that define them as a distinct group” for purposes of analyzing their equal protection claims.

Significantly, both judges accorded great weight to the Obama Administration’s Guidance, and both judges also found persuasive the Richmond-based 4th Circuit Court of Appeals’ ruling in the Gavin Grimm case that district courts should defer to the Administration’s interpretation due to the ambiguity of existing regulations about how to deal with transgender students under Title IX.  In light of such ambiguity, the federal administrators would enjoy deference so long as they adopted an interpretation of the statute and regulations that is not inconsistent with the purpose of the statute.  The judges rejected the argument that because Congress in 1972 did not intend to ban gender identity discrimination, administrators and judges decades later could not adopt such an interpretation of “discrimination because of sex.”

Although the Supreme Court has stayed the injunction issued by the district court in the Gavin Grimm case while the Gloucester (Virginia) school district’s petition for review of the 4th Circuit’s ruling is pending before the Supreme Court, Judge Marbley pointed out that the stay does not affect the status of the 4th Circuit’s decision as a persuasive precedent.  He also pointed out the unusual step taken by the Justice Stephen Breyer of writing that he had agreed to provide the necessary fifth vote for a stay to “preserve the status quo” as a “courtesy” to the four conservative justices.  The Highland school district argued that the stay “telegraphed” that the Supreme Court was going to grant review of the 4th Circuit’s decision, but, wrote Marbley, “even if Highland has somehow been able to divine what the Supreme Court has ‘telegraphed’ by staying the mandate in that case, this Court unfortunately lacks such powers of divination.”  Furthermore, he wrote, “This Court follows statements of law from the Supreme Court, not whispers on the pond.”

Judge Marbley also accorded great weight to the amicus brief filed on behalf of school administrators from around the country. In this brief, they explained how they had implemented the policies required by the Education Department to accommodate transgender students.  They pointed out that allowing transgender students to use appropriate facilities had not created any real problems.  They argued that this was a necessary step for the mental and physical health of transgender students, and did not really impair the privacy of other students.  Furthermore, in the more than twenty school districts joining in this brief, the new policy had not in any case led to an incident of a sexual predator gaining access to a restroom under the pretext of the policy and harming any student.  Thus, while acknowledging that school districts can be legitimately concerned about the health and safety of students, the courts could conclude that any such risk was conjectural and not borne out by experience.

The judges also noted other district court decisions over the past year ordering schools to allow transgender students to use appropriate facilities, including a recent ruling in one of the North Carolina cases, requiring the University of North Carolina to ignore H.B.2, that state’s infamous “bathroom bill,” and allow the three individual transgender plaintiffs to use appropriate restrooms at the university while the case is pending before the court.

Judge Marbley’s in-depth analysis of the jurisdictional issues provides a roadmap for a challenge before the Houston-based 5th Circuit Court of Appeals to Judge O’Connor’s nationwide injunction.  The Texas lawsuit attempted to short-circuit the requirements of the Administrative Procedure Act by dragging an interpretive dispute into the federal district court when the relevant statute provides an administrative forum for hearing and deciding such issues before appealing them to the Courts of Appeals.

Judge Marbley was appointed to the district court by President Bill Clinton. Judge Pepper was appointed by President Barack Obama.

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N.Y. Appellate Division Applies New Precedent to Find Standing for Gay Dad Seeking Custody

In what may be the first application of the recent New York Court of Appeals decision, Brooke S.B. v. Elizabeth A.C.C., 2016 N.Y. Slip Op 05903 (August 30, 2016), which adopted a new definition of “parent” for purposes of the state’s Domestic Relations Law so as to account for cases of same-sex couples raising children, the New York Appellate Division, 2nd Department, based in Brooklyn, ruled on September 6 that a gay man who was parenting twin children conceived through in vitro fertilization using his same-sex partner’s sperm, had standing to seek custody of the children after the men split up.  The case, In re Anonymous, 2016 N.Y. App. Div. LEXIS 5833, had an interesting additional wrinkle, in that the plaintiff is the biological uncle of the children, because his sister served as the surrogate for their gestation and birth.  In a separate opinion issued on the same date, 2016 N.Y. App. Div. LEXIS 5834, the court rejected a challenge to the parental standing of the surrogate and upheld the temporary award of visitation to the co-parent while the case was pending.

The two cases consolidated in the Brooke S.B. ruling involved lesbian couples who had their children through donor insemination of one of the partners.  This new ruling extends that case to a situation where the birth mother, a surrogate, is still the legal parent of the children, and the dispute is between the father who donated the sperm used to conceive the children and his former partner, whose sister bore them.

The two men, identified in the court’s opinion by their first names as Joseph P. and Frank G., lived together in New York State from 2009 through February 2014, but did not marry when same-sex marriage became possible in New York.  They wanted to raise children together who would be genetically related to both of them, so Joseph took advantage of a long-standing promise by his sister, Renee, who had her own children, that she would bear children for her brother once he met his “life partner.”  Their understanding was that the two men would be the children’s parents, and that Renee would have a continuing role in the lives of any children resulting from this process.

The three adults executed a written surrogacy agreement in which Renee agreed to become pregnant using Frank’s sperm and to surrender her rights as a biological mother so that Joseph could adopt the resulting child or children.  They used an in vitro fertilization process (“test tube babies”), in which it is customary to implant more than one fertilized egg to ensure a successful conception.  Renee bore fraternal twins, a boy and a girl, in February 2010.  It is likely that Frank and Renee were listed on the twins’ birth certificates as the parents, but the court’s opinion does not mention this subject.

For the first four years after Renee gave birth, Joseph and Frank raised the children together, sharing parental rights and responsibilities, and the children regarded both of them as their parents.  They called Joseph “dada” and Frank “dad.”  The court’s opinion doesn’t say what they called Renee, but it does say that she frequently saw them.

Joseph and Frank separated early in 2014.  The children continued to live with Frank, but Joseph visited and cared for them “daily,” according to the court’s opinion, until May 2014.   Then Frank suddenly cut off contact between Joseph or Renee and the children.  In December 2014, Frank moved to Florida with the children, without giving any notice to Joseph or Renee, and without seeking permission from the court.  Although Renee had agreed in the surrogacy agreement to give up any claim of parental rights in order for Joseph to be able to adopt the children, they had never taken that step of adoption, so her parental rights had not been legally terminated.  Frank did not seek court permission to remove the children from the state, which would normally be required since he did not have permission from Renee, their legal mother.

After Frank’s move, Renee filed an action in the Family Court seeking custody of the children as their biological mother, and Joseph filed an action petitioning to be appointed their legal guardian.  Since the New York Court of Appeals had then recently reaffirmed its 1991 ruling, Alison D. v. Virginia M., 77 N.Y.2d 651, under which a person in Joseph’s position would not have standing to seek custody, a guardianship appointment would be the next best thing.  However, in June 2015 Joseph reconsidered his position, withdrew the guardianship petition, and filed his own action seeking custody as a de facto parent.

Frank then filed a motion to throw out Joseph’s case, relying on Alison D.’s definition of “parent” as being limited to a biological or adoptive parent, but Orange County Family Court Judge Lori Currier Woods denied the motion, and Frank appealed.  The appellate court’s opinion does not describe Judge Woods’ reasoning for denying Frank’s motion.

In its unanimous September 6 ruling, the panel of Justices L. Priscilla Hall, Jeffrey A. Cohen, Robert J. Miller and Betsy Barros noted that while this appeal was pending, the Court of Appeals had decided Brooke S.B. v. Elizabeth A.C.C., overruling the Alison D. decision and adopting a new definition of “parent.”  The Court of Appeals said that the old definition had “become unworkable when applied to increasingly varied familial relationships.”  Under the new definition, a partner of a biological parent will have standing to seek custody if the partner “shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together.” 

In this case, testimony about the verbal agreement between the men was bolstered by the written surrogacy agreement between the men and Renee.  This is ironic, since under New York Law the surrogacy agreement is itself against public policy and unenforceable in court.  For that very reason, Frank cannot rely on the Surrogacy Agreement in defending the separate custody case brought against him by Renee, since a statutory provision says that a surrogacy agreement cannot be considered by the court in a custody proceeding involving the surrogate mother.  

The Appellate Division found that “Joseph sufficiently demonstrated by clear and convincing evidence that he and Frank entered into a pre-conception agreement to conceive the children and to raise them together as their parents.”  The court also pointed out that the men “equally shared the rights and responsibilities of parenthood, and were equally regarded by the children as their parents.”  Thus, a straightforward application of the new precedent gave Joseph standing to seek custody.

Frank had also argued, as part of a belated attempt to get permission from the Family Court to relocate the children to Florida, that Renee’s parent standing was terminated due to her entry into a surrogacy agreement with the two men. Rejecting this argument, the court said that such rights were not terminated.  “Surrogate parenting contracts have been declared contrary to the public policy, and are void and unenforceable,” wrote the court.  As such, a surrogacy contract has no legal effect.  “Moreover,” the court observed, “Domestic Relations Law Sec. 124(1) expressly states that ‘the court shall not consider the birth mother’s participation in a surrogate parenting contract as adverse to her parental rights, status, or obligations.’”  The court also noted that a hearing would be required to determine whether it was in the best interest of the children to allow Frank to relocate them to Florida.  The court also affirmed the Family Court’s award to Joseph of specified visitation with the children while the case is pending.

This ruling does not mean that Joseph will automatically get custody.  The case goes back to the Family Court for a determination whether an award of custody to Joseph is in the best interest of the children.  Furthermore, although Renee’s custody petition is mentioned in the opinion, the appellate court gives no indication what effect its ruling will have on her custody claim.  However, because New York law does not provide that a child can simultaneously have three legal parents, the Family Court will have to take account of Renee’s continued legal status as the children’s parent in making a determination whether to award custody to Joseph, and whether that would require terminating the parental status of either Renee or Frank.  This is a complicated business, and the New York State legislature needs to modernize our Domestic Relations Law to sort through the intricacies and provide clear guidance to the courts when dealing with “non-traditional” families.  Left to their own devices without such guidance, it is difficult to predict what the courts will do.

Kathleen L. Bloom of New Windsor represents Joseph.  Michael D. Meth and Bianca Formisano of Chester represent Frank.  Gloria Marchetti-Bruck of Mount Kisco was appointed by the court to represent the interest of the children.  Since Renee was not involved in this appeal, the opinion does not identify her counsel.


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N.J. Appellate Division Reverses Convictions of Dharun Ravi

The New Jersey Appellate Division, an intermediate appeals court, threw out a state court jury’s conviction of Dharun Ravi on fifteen different criminal counts, finding that trial evidence about how Ravi’s actions in September 2010 adversely affected his college dormitory roommate, Tyler Clementi, had tainted all the verdicts in the case because it may have caused the jury to convict Ravi based on the victim’s belief rather than the defendant’s intent. Five of the convictions were tossed out permanently, but the remaining ten were sent back to the Middlesex County Superior Court, allowing prosecutors to retry Ravi on those counts.  State of New Jersey v. Ravi, 2016 Westlaw 4710195 (N.J. App. Div., Sept. 9, 2016).

Ravi and Clementi were assigned as dormitory roommates as incoming freshmen at Rutgers University. Over the summer of 2010, Ravi used internet resources to learn about Clementi, and concluded that Clementi might be gay, but did not raise the subject with Clementi when they arrived at school.  Ravi’s suspicions were reinforced on Sunday, September 19, when Clementi asked Ravi if Clementi could “have the room” for the evening because he was expecting a guest.

When Ravi saw that the guest was an “older man,” he arranged the webcam on his desk to focus on Clementi’s bed, and left his computer on so the video chat function could be activated remotely. Ravi went across the hall to the room of a woman who had been his high school classmate, Molly Wei.  Through her computer he was able to access his webcam and together they briefly viewed Clementi and his guest kissing. Ravi spread word to his friends through twitter that they could access his computer and view the scene as well. Later that night, Wei turned on the video chat function again with some guests in her room and briefly watched Clementi and his guest “making out.”

Two days later Clementi asked to have the room again. There was conflicting testimony about what happened that evening, but it seems that although Ravi had tweeted to people to tune in to his video chat during that time, and had tried to set things up again, those attempting to view what was happening in the room were unable to do so.

The guest, identified by the court only by his initials to preserve his confidentiality, testified that he and Clementi had sex on both occasions, that he had observed the webcam focused on the bed during the first of these meetings but had not said anything to Clementi about it, and the second time he noticed the webcam was pointed away from the bed. He testified that he first learned about Clementi’s suicide when he read about it in the newspapers.

Clementi had begun monitoring Ravi’s twitter feeds, learned about what was going on, and was apparently embarrassed and mortified, going to a Resident Assistant and asking about an immediate room change. He submitted an electronic request and administrators instituted an investigation.

When Ravi was informed about the investigation, he deleted some incriminating tweets from his twitter account, composed a new backdated tweet telling his followers not to attempt to video chat with him and telling them to ignore his last tweet, and sent Clementi an apologetic text message, disclaiming any ill intent. In this message, he stated that on the second night he had deliberately repositioned the webcam so that even though he had tweeted to his friends to tune in, they would not see anything.  Ravi also told Clementi that he knew Clementi was gay “and I have no problem with it. In fact one of my closest friends is gay and he and I have a very open relationship,” Ravi continued.  “I just suspected you were shy about it which is why I never broached the topic.  I don’t want your freshman year to be ruined because of a petty misunderstanding, it’s adding to my guilt.  You have the right to move if you wish but I don’t want you to feel pressured to without fully understanding the situation.”

Shortly after Ravi transmitted the text message, Clementi wrote on his Facebook page, “I’m going to jump off the GW Bridge. Sorry.” He committed suicide by jumping off the bridge later that night.  There is no evidence whether Clementi ever saw Ravi’s text message.

As soon as Clementi’s death was discovered, Rutgers ramped up the investigation. Ravi tried to reach out to his friend from across the hall, who had been brought in by the police for questioning.  His subsequent phone and text interactions with her became the subject of several of the criminal charges that were filed against him, relating to witness tampering and hindering apprehension of prosecution. He waived his Miranda rights and gave a statement to the investigators which cleaned up his actions by omitting “homophobic statements he candidly included” in the tweets and texts he had sent to his followers and friends about Clementi’s use of the dorm room.  “Without reciting at length the forty-four page interrogation document,” wrote the court, “we can safely summarize its content as a poorly executed attempt by defendant to sanitize his motives for using his knowledge of computers to surreptitiously observe T.C. and M.B. engaged in sexual relations.”

The main charges, however, were brought under New Jersey’s Bias Intimidation statute and invasion of privacy statute. At the time, the Bias Intimidation statute provided that a person was guilty of the crime of “bias intimidation” if “he commits, attempt to commit, conspires with another to commit, or threatens the immediate commission” of a variety of offenses listed in the statute either (1) purposely or (2) knowingly harassing the victim because of a characteristic (such as sexual orientation) listed in the statute, or if the victim (3) either “reasonably believed that the harassment was committed with a purpose to intimidate him” or that “he was selected to be the target” because of the characteristic.

At trial, the prosecution focused on the third of these categories, which is where they had the weightiest evidence. A major focus of the case was to persuade the jury that Clementi was a shy, sensitive person, who had clearly communicated to the Resident Assistant how upset he was by this “spying” on his private activities, which he amplified in the written complaint the RA encouraged him to write and submit with his room change application.  The evidence was overwhelming that this third branch of the bias intimidation crime had been proved beyond a reasonable doubt.

On the other hand, the evidence that Ravi intended to harm or upset Clementi was less overwhelming, if one judges by the evidence summarized by Judge Jose Fuentes in the appellate decision. From the excerpts in the opinion, it appears that Ravi was an immature, insensitive person who lacked empathy for his roommate and was curious to know what was going on in his dorm room when he “gave the room” to Clementi for the night.  In retrospect, it’s hard to understand how Ravi could believe that Clementi would not learn about his spying, since he was tweeting about it, or that Clementi, or anybody for that matter, would not be upset about their private activities being publicized and “netcast” in that way.

Thus, it is possible that the prosecution could have secured convictions on the bias intimidation counts without introducing evidence about the impact on Clementi and just focusing on what Ravi had said, tweeted and done. But in light of the opportunity provided by the third part of the statute and the evidence available to them, they presented all of it to the jury and won convictions on all counts.

During jury selection the judge “informed all prospective jurors during voir dire that [Clementi] committed suicide and that [Ravi] was not charged with either causing or contributing to his death.” His death was also mentioned several times during the trial, but was not mentioned during the judge’s charge to the jury or the prosecution’s closing argument.  It was made clear to the jury that Ravi was being tried solely for his own actions.

After being convicted on all counts, Ravi received what many commentators, and the prosecutors, believed to be an extraordinarily light sentence: three years of probation, conditioned on serving thirty days at the Middlesex County Adult Correctional Center, completing 300 hours of community service, attend counseling, and pay an “assessment” of $10,000, which would be given to a state-license or state-chartered community-based organization dedicated to providing assistance to victims of bias crimes. Ravi appealed his conviction, but was required to fulfill this sentence while the case was pending on appeal.  The prosecutors appealed the sentence, arguing that in light of the crimes, Ravi should have received substantially more time incarcerated.

Ravi was convicted in 2012. In 2015, in the case of State v. Pomianek, 110 A.3d 841, the New Jersey Supreme Court declared that the third part of the Bias Intimidation Statute was unconstitutional because it allowed a defendant to be convicted without any proof that he intentionally or knowingly engaged in conduct that violated the statute.  As written, the statute allowed a conviction based solely on the belief of the victim that he was the target of such harassment.  The court found that this violated basic constitutional rights.  “In focusing on the victim’s perception and not the defendant’s intent, the statute does not give a defendant sufficient guidance or notice on how to conform to the law, write Justice Barry T. Albin for the Supreme Court.  “That is so because a defendant may be convicted of a bias crime even though a jury concluded that the defendant had no intent to commit such a crime.”

The offending section had been added to the state’s bias intimidation law as part of a revision in response to a U.S. Supreme Court decision that struck down the prior law because it allowed the trial judge to impose a sentence greater than the one authorized by the jury verdict based on the judge’s view of the evidence. The Supreme Court determined that this violated the defendant’s right to trial by jury under the Sixth Amendment.

While striking down the objectionable part, the N.J. Supreme Court emphasized that the other two parts “still stand.” Wrote Justice Albin: “A defendant is prohibited from acting with the purpose to commit bias intimidation or with knowledge that his conduct constitutes bias intimidation.  With the striking of subsection (a)(3), New Jersey’s bias intimidation law now conforms to its original form, the statute’s explanatory statement contained in the legislative history, the laws of the rest of the nation, and the United States Constitution.”

Given the way the case was litigated, it is not surprising that the Appellate Division found that the verdict on all four bias intimidation counts had to be thrown out. What was surprising, however, was that the convictions on all the other counts fell as well.   However, the Judge Fuentes explained that “the evidence the State presented to prove the bias intimidation charges [under the stricken provision] permeated the entire case against defendant, rendering any attempt to salvage the convictions under the remaining charges futile.  The State used evidence revealing the victim’s reserved demeanor and expressions of shame and humiliation as a counterweight to defendant’s cavalier indifference and unabashed insensitivity to his roommate’s right to privacy and dignity.  The prosecutor aggressively pressed this point to the jury in her eloquent closing argument.”

“It is unreasonable to expect a rational juror to remain unaffected by this evidence,” Fuentes asserted. Although other evidence certainly supported the invasion of privacy counts, the charges of tampering with evidence (Ravi’s deletion of potentially intimidating tweets) and his attempt to affect what witnesses might say, the Appellate Division panel of three judges was convinced that the evidence about the effect on Clementi and his subsequent suicide, which should not have been presented to the jury, “constituted an error ‘of such a nature to have been clearly capable of producing an unjust result.’”

On the other hand, the court concluded that the state’s evidence on one of the hindering prosecution charges was so deficient that the charge should be permanently dropped from the case.

Judge Fuentes concluded the opinion with editorial comments condemning Ravi’s conduct and lamenting the misuse to which the internet can be put. “The sense of loss associated with a young man taking his own life defies our meager powers of reason and tests our resolve to seek consolation,” he wrote.  “From a societal perspective, this case has exposed some of the latent dangers concealed by the seemingly magical powers of the Internet.  The implications associated with the misuse of our technological advancements lies beyond this court’s competency to address.”

Ravi was not charged with liability in Clementi’s death, but the court was not willing to conclude without alluding to that responsibility. “The social environment that transformed a private act of sexual intimacy into a grotesque voyeuristic spectacle must be unequivocally condemned in the strongest possible way,” wrote Fuentes. “The fact that this occurred in a university dormitory, housing first-year college students, only exacerbates our collective sense of disbelief and disorientation.  All of the young men and women who had any association with this tragedy must pause to reflect and assess whether this experience has cast an indelible moral shadow on their character.”  Clearly, the court believed it had done so.

The bottom line is that the verdicts on the bias intimidation counts were reversed with prejudice, so Ravi cannot be retried on those counts, and one hindering prosecution count was permanently thrown out of the case. That leaves ten counts of actual or attempted invasion of privacy, hindering apprehension, witness tampering and evidence tampering. It is now up to the Middlesex County prosecutors whether to attempt to retry Ravi on these counts.  They were expected to announce a decision whether to go forward within a week after the Appellate Division’s opinion as released.

Ravi reported to the Middlesex County Correction Center for his 30-day sentence, and earned early release after 20 days for good behavior. Although press accounts were not specific about this, presumably he has fulfilled that other terms of the sentence imposed by Superior Court Judge Glenn Berman.  According to a report in the New York Daily News earlier this year about the argument before the court, Ravi’s attorney confirmed that he had not returned to Rutgers but was employed and had adjusted to his circumstances.  Tyler Clementi’s family responded to the incident by starting a foundation to support efforts to combat bullying and harassment of gay kids.


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VA Nurse Loses Job For Manipulating Male Genitals During Physical Exams

The U.S. Court of Appeals for the 7th Circuit rejected a Veterans Administration nurse’s challenge to his discharge for an unorthodox approach to diagnosing male genital warts in Riano v. McDonald, 2016 U.S. App. LEXIS 15097 (Aug. 17, 2016).

James Riano, who worked as a registered nurse for the VA in Milwaukee, had previously worked as a hospital corpsman in the Navy.  In 2004, he began working as an RN at the VA medical center.  Beginning in the summer of 2007, he began working at a new clinic specializing in treating genital warts in men.  He lost his job after a patient complained that Riano sexually assaulted him while giving him an examination.

Subsequent investigation disclosed that Riano’s usual routine in examining men for genital warts was to apply moisturizing cream to the penis and then applying pressure by hand until at least partial erection was achieved.  Riano accompanied this with crude language which he said was intended to put the men at ease, using words like “pecker” and “balls.”

Riano insisted that this technique was used in the Navy for such examinations, because, he claimed, it was easier to detect genital warts on a hard penis than a flaccid one.  In some cases Riano’s technique (perhaps overly energetic, or dealing with somebody suffering from “premature ejaculation”?) led to patients experiencing orgasm.

The VA’s Office of the Inspector General interviewed many men who were examined by Riano and concluded that his methods (and the sexually-oriented language he was using during examinations) were inappropriate, “not standard and not medically necessary,” and he was discharged.  He pursued an administrative appeal, producing statements from some patients who were quite satisfied with how they were treated by Riano (some of them clearly appreciated the “happy ending”), and some were even critical of the investigator, saying his questions were “too aggressive” and that their answers were taken out of context.  Some objected that the investigator “raised an inappropriate consideration by asking if they believed Riano was gay.”

Riano wanted the appeals board to receive live testimony from these patients, but the board denied his request, citing patient privacy, “potential emotional harm, and the adequacy of the patients’ written statements.”

The board also excluded as irrelevant Riano’s proffer of testimony from a former corpsman who had trained and worked with him in the Navy, where Riano claimed to have learned and applied this examination technique without complaints.  (Those Navy boys just want to have fun during those long excursions at sea!)  Riano also denied some patient reports about the language he used during their examinations and the allegation that he was actually masturbating patients for his own sexual gratification.

The hearing board received expert testimony refuting Riano’s contention about the desirability of provoking an erection to facilitate an exam for genital warts, in response to which Riano presented testimony from a female nurse practitioner that a partial erection could be beneficial in this context, but that it was not medically necessary and that she had never purposefully induced a patient’s erection for this purpose.  However, she opined that Riano’s technique was “within the scope of practice for a nurse” and that his use of sexually crude language in dealing with male patients was not necessarily outside the scope of normal practice.

Another testifying nurse confirmed Riano’s contention that using “moisturizing cream to create a sheen” made warts easier to detect.

Ultimately, the board found that “Riano had used language and an examination technique that was medically inappropriate,” and the board’s contention was upheld in Riano’s subsequent appeal to the federal district court.

Circuit Judge Ann Claire Williams, writing for the panel, found no due process errors and concluded that the evidence in the hearing record was sufficient to support the board’s conclusion, inasmuch as Riano did not “dispute the relevant details about his technique and language” and so “he has failed to show that he was harmed by the lack of live patient testimony.”  Furthermore, she endorsed the board’s determination that the expert testimony provided was sufficient to support the board’s conclusion that Riano’s behavior departed from “appropriate professional conduct.”

The court’s opinion says nothing about Riano’s sexual orientation, and he did not make it an issue in the case, relying instead on due process arguments to challenge the fairness of the Board’s decision.

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