New York Law School

Art Leonard Observations

Foreign and International Courts Issue a Burst of LGBT Rights Rulings

 

Over the course of just four days, January 8 through 11, 2018, major courts on three continents have issued rulings that will affect the rights of tens of millions of LGBT people. On January 8, the Supreme Court of India ordered reconsideration of the 2014 decision that had restored the country’s law against gay sex, in an Order that quoted extensively from prior rulings critical of the 2014 decision.  On January 9, the Inter-American Court of Human Rights advised Costa Rica – and thus also sixteen other countries in Central and South America that are bound by the American Convention of Human Rights and do not yet have marriage equality – that same-sex couples are entitled to marry and that transgender people are entitled to get legal name changes without having to undergo sex reassignment surgery.  And on January 11, one of the Advocates General of the European Court of Justice (ECJ), responding to a request for a preliminary ruling from the Constitutional Court of Romania, advised the ECJ that same-sex spouses of the citizens of member nations must be treated the same as different-sex spouses under the European Union Directive governing movement between states.

 

India has the second largest population of any country, over 1.3 billion people by the latest estimate. The European Union member countries have more than 500 million residents, and the combined countries within the Inter-American Union have close to a billion people, although some large countries, including Canada and the United States, are not subject to the Inter-American court’s ruling.  But, of course, both Canada and the United States have marriage equality and don’t criminalize consensual gay sex among adults.   This means that within the space of four days courts have potentially expanded LGBTQ rights to an extraordinary proportion of the world’s population, which is currently estimated at about 7.6 billion people, and marriage equality may soon become the norm throughout the Western Hemisphere, with only a few holdouts among states that do not recognize the jurisdiction of the Inter-American court.

 

The India ruling is yet another step in a complicated and long-running story. In 1860, under British Administration, the Indian Penal Code was adopted including what is now Section 377, providing, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”  This colonial enactment was carried over into national law when India became independent and self-governing after World War II.  It has been interpreted to outlaw all same-sex oral and anal intercourse. Although infrequently enforced, it has had the same stigmatizing effect as anti-sodomy laws in western societies before the slow process of decriminalization got under way during the second half of the 20th century.

 

Many LGBTQ people in India rejoiced and went heavily public in celebratory demonstrations in 2009 when the Delhi High Court, responding to a lawsuit filed by the NAZ Foundation, an HIV/AIDS advocacy non-governmental agency, ruled that Section 377 was unconstitutional as applied to private consensual adult same-sex intercourse. NAZ Foundation v. Government of NCT of Delhi, 111 DRJ 1 (2009). As the government did not initiate an appeal, many saw the lengthy, scholarly ruling as final and definitive.

 

However, Indian jurisprudence allows for anybody who is offended by a court ruling to ask the nation’s Supreme Court to review it, and a group of religious and social conservatives, led by Suresh Kumar Koushal, a Hindu astrologist, brought their case to the Supreme Court, where a two-judge bench reversed the High Court ruling in 2014, holding that the Constitution of India did not impede the government from maintaining the existing law, and rejecting the High Court’s citation of decisions from other countries (such as the U.S. Supreme Court’s 2003 Lawrence v. Texas ruling) to support its decision. Koushal v. NAZ Foundation, 1 SCC 1 (2014).  The Supreme Court panel minimized the significance of the issue, claiming that because there were very few homosexuals as a proportion of the population, it was not a matter of great importance.  It also opined that the question of what sexual conduct to outlaw was for the legislature, not the courts, to decide.

 

Obtaining further review from a larger panel of the Court (which has 26 judges overall) is a time-consuming process, requiring filing “corrective petitions” and persuading a panel of the Court that the issue should be taken up anew. This process has been ongoing at the instance of NAZ Foundation and its supporters, but a new group of plaintiffs emerged in 2016 and initiated a petition directly with the Supreme Court, arguing that recent rulings in other cases by the Court, most notably a later 2014 ruling on the rights of transgender people, National Legal Service Authority v. Union of India 5 SCC 438 (2014), had cast significant doubt on the reasoning of the Koushal decision.  This argument was bolstered last year when a nine-member panel of the Court, ruling on a challenge to a new national genetic identification system, Puttaswamy v. Union of India, 10 SCC 1 (2017), specifically discussed and disparaged the Koushal decision’s treatment of constitutional privacy and the rights of LGBTQ people.

 

The Court’s January 8 Order in Johar v. Union of India Ministry of Law and Justice, Writ Petition No. 76/2016, by a three-judge panel including Chief Justice Dipak Misra, provided an extensive summary of the arguments against the constitutionality of Section 377, quoting extensively from the 2014 transgender and 2017 privacy rulings, particularly those passages critical of the Koushal decision, and granted the petitioners’ request that a larger panel of the Court be convened to reconsider that decision. Interestingly, only the Petitioners were present at the Court’s hearing on January 8, with the argument being presented by Senior Advocate Arvind Datar.  Nobody appeared from the government to oppose the request for reconsideration.  The Order emerged immediately after the hearing.

 

While the Order does not specifically state that all of the Petitioners’ arguments are correct, after concluding its summary of the arguments and what the Petitioners are seeking, the Court stated, “Taking all the aspects in a cumulative manner, we are of the view, the decision in Suresh Kumar Koushal’s case requires re-consideration. As the question relates to constitutional issues, we think it appropriate to refer the matter to a larger Bench.”

 

A different Bench of the Court is presently considering the curative petition that was filed by the NAZ Foundation, so there was some speculation in the Indian press that the two cases could be combined before that larger panel. “In the meantime,” wrote the Court, “a copy of the petition be served on the Central Agency so that the Union of India can be represented in the instant matter.  Let the matter be placed before Honorable the Chief Justice of India, on the administrative side, for consideration of the appropriate larger Bench.”

 

Indian jurisprudence is famous for its slow motion, but there was some optimistic speculation that an opinion from a larger Bench of the Court may emerge later this year. In light of the serious criticisms of the Koushal decision by other Benches of the Court, commentators were optimistic that the Delhi High Court’s original ruling striking down criminalization of consensual gay sex will ultimately prevail, and gay sex will become legal in the world’s second largest country.

 

The Inter-American Court’s ruling on January 9 came in response to a petition submitted two years ago by Luis Guillermo Solis, the President of Costa Rica, who had run for office on a pledge to expand LGBTQ rights in his Central American country. Opinion Consultiva, OC-24/17 (2017). In the face of legislative intransigence, Solis inquired whether Costa Rica was obligated under the American Convention on Human Rights to let same-sex couples marry.  He also inquired about transgender rights.  The Court, which actually sits in Costa Rica’s capital city, came back with a strong affirmation for LGBTQ rights.  The opinion is initially available only in Spanish. According to translations published in English-language media sources, the court said that governments subject to the Convention “must recognize and guarantee all the rights that are derived from a family bond between people of the same sex,” and that establishing a separate institution for same-sex couples, such as civil unions, was not adequate from the point of view of legal equality.  The governments must “guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all rights of families formed by same-sex couples without discrimination.”

 

However, recognizing the kind of legislative intransigence encountered in Costa Rica and many other Central and South American countries, where the Roman Catholic Church has a heavy influence on social policy, the court recommended that government pass “temporary decrees” while new legislation is considered.

 

The Inter-American Court, in common with the European Court of Human Rights, is not empowered directly to order a government to do anything. Compliance requires acquiescence, and sometimes the court has resorted to demanding that governments explain why they have not complied with its rulings.  For example, it took Costa Rica several years to come into compliance with a ruling by the Inter-American Court against bans on the use of in vitro fertilization.

 

President Solis reacted to the decision by calling for full compliance by the countries of the Inter-American Union. The Tico Times reported on January 10 that he told reporters, “Costa Rica and the other countries that have accepted the jurisdiction of the Inter-American Court must fully comply with the court’s opinion, respecting each country’s processing time, jurisdictional and administrative spaces.  Solis pointed out that Costa Rica’s compliance would require a “gradual process,” requiring consultation between the various branches of government and the political parties.

 

The Court also addressed a question of transgender rights, recognizing as a human right that transgender people should be able to register themselves using the name and sex with which they identify, thus lining up with those countries that have in recent years moved towards recognizing self-declared gender identity without interposing a requirement that the individual document surgical gender confirmation procedures.

 

Commented Solis, “The court’s opinion ratifies our commitment to guaranteeing people access to the rights they acquire through their personal relations, without any sort of discrimination.” In a formal press release, the government stated: “Love is a human condition that should be respected, without discrimination of any kind.  The State confirms its commitment to comply.”

 

The countries that are legally bound by rulings of the court include Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Surinam and Uruguay. Some of those countries still penalize gay sex, while others already have marriage equality: Colombia, Brazil, Uruguay and Argentina.  Litigation over marriage equality is pending in the Supreme Court of Panama.  In Mexico, same-sex couples can marry in several states and the capital district, and all of the states are required to recognize those marriages, while a Supreme Court ruling mandates that lower courts issue orders, called “amparos,” requiring local officials to allow particular same-sex couples (or groups of couples) who obtain the orders to marry.  The Inter-American Court’s ruling may hasten the spread of marriage equality to the remaining Mexican states.

 

Meanwhile, back in the European Union, Advocate General Melchior Wathelet’s preliminary ruling in the case of Relu Adrian Coman, a Romanian citizen who married Robert Clabourn Hamilton, an American citizen, in Brussels, Belgium, while Coman was living there and working for a European Union agency, may portend a significant advance for marriage equality in Europe. Coman v. Inspectorate General for Immigration, Case C-673/16 (January 11, 2018).  Coman sought to bring his spouse back home to Romania, but the Romanian government was unwilling to issue the kind of spousal visa that is routinely granted when Romanians contract different-sex marriages elsewhere in Europe.  Coman brought his case to the Constitutional Court of Romania, which referred the issue to the European Court of Justice for a determination of what obligation the country might have as a member of the Union.

 

Such matters are first presented to the office of the Advocate General (of which there are several), for an opinion advising the Court.  If the Court decides to follow the Advocate General’s recommendation, its ruling becomes law throughout the European Union.

 

In some respects, Wathelet’s opinion is narrow and technical, because it doesn’t address a broad question of rights, but rather the narrower question of interpreting the Directive that guarantees freedom of movement within the European Union, with an eye to breaking down nationality barriers that would inhibit the movement of labor across national lines.   Directive 2004/38 describes the “free movement of persons” as “one of the fundamental freedoms of the internal market.”  The Directive supports such freedom by requiring member states to grant freedom of movement to family members of their citizens, and of course a “spouse” is a family member, but the term “spouse” is not generally defined.  When the Directive was adopted in 2004, only two countries in Europe allowed same-sex marriage, but many others had registered partnerships for same-sex couples, so the Directive provides for free movement rights for such partners, but only “if the legislation of the host Member State treats registered partnerships as equivalent to marriage.”

 

In the case of Romania, not only is marriage defined as the union of a man and a woman, but the country’s marriage law specifies that same-sex couples may not marry, and the county provides no registered partnership status for same-sex couples. Thus, the question under EU law is whether the protection for family life and for spousal relationships would extend to same-sex spouses, overriding national law on the question of who is entitled to a residence visa (as opposed to the short-term entry visa of up to three months for tourists and business visitors).  The key to this, it proved, was the established practice both in this Court and the European Court of Human Rights to adjust the definitions of terms in reaction to social developments.

 

Wathelet quoted an earlier decision stating that “EU law must be interpreted ‘in the light of present day circumstances,’ that is to say, taking the ‘modern reality’ of the Union into account.” This is to avoid the law become static and placing a drag on economic and social development.  Wathelet noted that in a 2001 ruling, reflecting “present day circumstances” at that time, the Court had considered marriage to be “a union between persons of the opposite sex.”  But this does not reflect the “modern reality.”

 

“In fact,” he wrote, “while at the end of the year 2004 only two Member States allowed marriage between persons of the same sex, 11 more Member States have since amended their legislation to that effect and same-sex marriage will be possible in Austria, too, by 1 January 2019 at the latest. That legal recognition of same-sex marriage does no more than reflect a general development in society with regard to the question.  Statistical investigations confirm it; the authorization of marriage between persons of the same sex in a referendum in Ireland also serves as an illustration.  While different perspectives on the matter still remain, including within the Union, the development nonetheless forms part of a general movement.  In fact, this kind of marriage is now recognized in all continents.  It is not something associated with a specific culture or history; on the contrary, it corresponds to a universal recognition of the diversity of families.”

 

Wathelet also referred to decisions by the European Court of Human Rights, including those protecting the right of a national of a signatory state to the European Convention on Human Rights to bring a same-sex partner into the country. He also noted that European law now includes a ban on sexual orientation discrimination by Member States, and strong protection both under the European Union’s Charter and under the Human Rights Convention for “family life.”

 

He also contended that adopting a gender-neutral concept of spouse was consistent with the objective of the Directive, “to facilitate that primary and individual right to move and reside freely within the territory of the Member States which is directly conferred on citizens of the Union.” Freedom of movement would be impeded if lawfully married individuals could not bring the legal spouses with whom they have established a family relationship with them to return to live in their home country.

 

Thus, he recommended that the Court answer the questions posed by the Romanian Constitutional Court as follows: that “the term ‘spouse’ applies to a national of a third State of the same sex as the citizen of the European Union to whom he or she is married” for purposes of complying with Directive 2004/38 on freedom of movement.  As applied directly to Mr. Coman’s case, it means that his marriage to an American citizen while Coman was living in Belgium, a European Union country that allows same-sex marriages, gives his spouse a derivative right under the Directive to obtain, automatically, the same kind of spousal visa to enter and live in Romania that would be provided to a different-sex spouse.  Since Hamilton is not a citizen of any European Union Member State, his right is not direct and must be derived from the right of his husband to have Romania respect his marriage and family life, at least to the extent of allowing him to live together with his husband in his home country.

 

Reflecting the social divisions within the Union, several Eastern European nations – Latvia, Hungary, Poland and Romania – opposed this conclusion, while it was supported by submissions from the Netherlands and the European Commission.

 

 

 

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TWO MORE LGBTQ-RELATED CONTROVERSIES DROP OFF THE SUPREME COURT DOCKET

As the Supreme Court’s 2017-18 Term began in October, it looked like a banner term for LGBTQ-related cases at the nation’s highest court. Petitions were pending asking the Court to address a wide range of issues, including whether LGBTQ people are protected against discrimination under federal sex discrimination laws covering employment (from Georgia) and educational opportunity (from Wisconsin), whether LGBTQ people in Mississippi had standing to seek a federal order to prevent a viciously anti-gay religiously-motivated law from going into effect, and whether the Texas Supreme Court erred in holding that Obergefell v. Hodges, 135 S. Ct. 2584 (2015), did not necessarily require a municipal employer to treat same-sex married couples the same as different-sex married couples in their employee benefits plans.  The Court had already granted review in a “gay wedding cake” case from Colorado (Masterpiece Cakeshop, which was argued on December 5), and another petition involving a Washington State florist who refused to provide floral decorations for a same-sex wedding was waiting in the wings.

 

But the hopes for a blockbuster term have rapidly faded. In December, the Court declined to hear the employee benefits case and the Title VII employment discrimination case.  And now in January, the Court has declined to hear the Mississippi cases, Barber v. Bryant and Campaign for Southern Equality v. Bryant, and the Wisconsin case, Whitaker v. Kenosha Unified School District, has settled, with the school district agreeing to withdraw its Supreme Court petition.   It may be that the only LGBTQ-related issue that the Court decides this term is the one it heard argued in December: whether a business owner’s religious objections to same-sex marriage or his right to freedom of speech would privilege him to refuse to make a wedding cake for a same-sex couple.  An opinion expected sometime in the coming months.

On January 8, the Supreme Court refused to review a ruling by the 5th Circuit Court of Appeals, Barber v. Bryant, 860 F.3d 345 (5th Cir.), petition for rehearing en banc denied, 872 F.3d 671 (2017), which had dismissed a constitutional challenge to Mississippi’s infamous H.B. 1523, a law enacted in 2016 that protects people who discriminate against LGBTQ people because of their religious or moral convictions.  The 5th Circuit had ruled that none of the plaintiffs – either organizations or individuals – in two cases challenging the Mississippi law had “standing” to bring the lawsuits in federal court.

H.B. 1523, which was scheduled to go into effect on July 1, 2016, identifies three “religious beliefs or moral convictions” and protects against “discrimination” by the state anybody who acts in accord with those beliefs in a wide range of circumstances. The beliefs, as stated in the statute, are: “(a) Marriage is or should be recognized as the union of one man and one woman; (b) sexual relations are properly reserved to such a marriage; and (c) male (man) or female (woman) refers to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  Among other things, the law would protect government officials who rely on these beliefs to deny services to individuals, and would preempt the handful of local municipal laws in the state that ban discrimination because of sexual orientation or gender identity, so that victims of discrimination would have no local law remedy.  Mississippi does not have a state law banning sexual orientation or gender identity discrimination, so H.B. 1523 in relation to private businesses and institutions was mainly symbolic when it came to activity taking place outside of the cities of Jackson, Hattiesburg and Oxford, or off the campus of the University of Southern Mississippi.

Two groups of plaintiffs brought constitutional challenges against the law in the U.S. District Court for the Southern District of Mississippi, where the case came before Judge Carlton W. Reeves, the same judge who ruled for plaintiffs in a case challenging Mississippi’s ban on same-sex marriage a few years earlier. He issued a preliminary injunction against implementation of H.B. 1523 on June 30, 2016, the day before it was to go into effect, finding that it would violate the 1st Amendment by establishing particular religious beliefs as part of the state’s law.  The plaintiffs also challenged it on Equal Protection grounds. Judge Reeves refused to stay his preliminary injunction, and so did the 5th Circuit.

The state appealed the grant of preliminary injunction to the 5th Circuit, where a unanimous three-judge panel ruled on June 22, 2017, that the district court did not have jurisdiction to issue the injunction because, according to the opinion by Circuit Judge Jerry Smith, none of the plaintiffs could show that they had suffered or were imminently likely to suffer a “concrete and particularized injury in fact,” which was necessary to confer the necessary “standing” to challenge the law in federal court.  In the absence of standing, he wrote, the preliminary injunction must be dissolved and the case dismissed.

The plaintiffs asked the full 5th Circuit to reconsider the ruling en banc, but the circuit judges voted 12-2 not to do so, announcing that result on September 29.  The dissenters, in an opinion by Judge James L. Dennis, bluntly stated that “the panel decision is wrong” and “misconstrues and misapplies the Establishment Clause precedent.”  Indeed, wrote Judge Dennis, “its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.”

Judge Dennis pressed home the point by citing numerous cases from other circuits which, he held, would support allowing the plaintiffs in this case to seek a preliminary injunction blocking the law from going into effect.  This gave hope to the plaintiffs that they might be able to get the Supreme Court to take the case and reverse the 5th Circuit, since one of the main criteria for the Supreme Court granting review is to resolve a split in authority between the circuit courts on important points of federal law.

However, on January 8 the Court denied the petitions the two plaintiff groups had filed, without any explanation or open dissent, leaving unresolved important questions about how and when people can mount a federal court challenge to a law of this sort. In the meantime, shortly after the 5th Circuit had denied reconsideration, H.B. 1523 went into effect on October 10.

A challenge to H.B. 1523 continues in the District Court before Judge Reeves, as new allegations by the plaintiffs require reconsideration of their standing and place in question, especially in light of the Supreme Court’s June 2017 ruling, Pavan v. Smith, 137 S. Ct. 2075, whether the law imposes unconstitutional burdens on LGBTQ people seeking to exercise their fundamental constitutional rights.

Two days after the Court announced it would not review the 5th Circuit ruling, the parties in Whitaker, 858 F. 3d 1034 (7th Cir. 2017), involving the legal rights of transgender students under Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the 14th Amendment, announced a settlement.  Under their agreement the school district will withdraw its cert petition.

The Supreme Court had been scheduled to hear a similar transgender student case last March, Gloucester County School Bd. v. G. G. ex rel. Grimm, but that case was dropped from the docket after the Trump Administration withdrew a Guidance on Title IX compliance that had been issued by the Obama Administration.  Since the 4th Circuit’s decision in Gavin Grimm’s case had been based on that Guidance rather than on a direct judicial interpretation of the statute, the Supreme Court vacated the 4th Circuit’s ruling and sent the case back to the 4th Circuit for reconsideration. See 137 S. Ct. 1239 (Mar. 6, 2017). That court, in turn, sent it back to the district court, which dismissed the case as moot since Grimm had graduated in the interim.

Ashton Whitaker is a transgender boy who graduated from Tremper High School in the Kenosha School District last June. His case would have given the Supreme Court a second chance to address the Title IX issue.  Whitaker transitioned while in high school and asked to be allowed to use the boys’ restroom facilities, but district officials told him that there was an unwritten policy restricting bathroom use based on biological sex.  He sued the district under Title IX and the Equal Protection Clause.  U.S. District Judge Panela Pepper (E.D. Wisconsin) issued a preliminary injunction on Whitaker’s behalf in September 2016, and refused to stay it pending appeal.  See 2016 WL 5239829 (Sept. 22, 2016).

On May 30, 2017, the 7th Circuit upheld Judge Pepper’s ruling, finding that even though the Trump Administration had withdrawn the prior Title IX Guidance, both Title IX and the 14th Amendment require the school to recognize Whitaker as a boy and to allow him to use boys’ restroom facilities.  The school district petitioned the Supreme Court on August 25 to review the 7th Circuit’s decision, even though Whitaker had graduated in June.

In the meantime, Judge Pepper ordered the parties to mediation to attempt a settlement. Whitaker’s graduation in June undoubtedly contributed to the pressure to settle, and the parties asked the Supreme Court several times to extend the deadline for Whitaker to file a formal response to the petition as the negotiations continued.  According to press reports on January 10, the case settled for $800,000 and an agreement that the district would withdraw its petition.

The settlement and withdrawal of the petition leaves the 7th Circuit’s opinion standing as the first federal circuit court ruling to hold on the merits that Title IX and the 14th Amendment require public schools to respect the gender identity of their students and to allow students to use sex-designated facilities consistent with their gender identity.  However, lacking a Supreme Court ruling on the point this decision is only binding in the three states of the 7th Circuit: Wisconsin, Illinois, and Indiana, the same three states bound by another 7th Circuit last year holding that employment discrimination because of sexual orientation violates Title VII of the Civil Rights Act of 1964.

 

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Federal District Court Denies Preliminary Injunction Requiring School District to Segregate Restroom and Locker Facilities by Biological Sex of Students

 

Accepting a report and recommendation from U.S. Magistrate Judge Jeffrey T. Gilbert, U.S. District Judge Jorge L. Alonso ruled on December 29, 2017, that a group of parents and cisgender students are not entitled to a preliminary injunction blocking Illinois’s Township High School District 211 from allowing transgender students to use restrooms and locker rooms consistent with their gender identity. Students and Parents for Privacy v. United States Department of Education, 2017 U.S. Dist. LEXIS 213091 (N.D. Ill., E.D.).

The dispute grew out of prior legal action by a transgender girl at William Fremd High School in Palatine, Illinios, a suburb of Chicago, seeking to use the girls’ facilities. During the Obama Administration, the U.S. Education Department responded to the student’s complaint by negotiating a settlement agreement with the school district under which Student A, as she was identified, would be allowed to use these facilities.  The school district’s willingness to settle turned on a formal Guidance issued by the U.S. Education and Justice Departments construing Title IX to require such a policy.

Reacting to the settlement, an ad hoc group of parents of students at Fremd High School, together with some girls who attend the high school, brought this suit in May 2016, represented by Alliance Defending Freedom, asserting that the girls had a constitutional and statutory right not to have “biological boys” present in their restroom and locker room facilities where they could see girls in a state of undress. The lawsuit targeted the U.S. Departments of Education and Justice for issuing the Guidance and negotiating the settlement.  The school district was also named as a defendant.  Student A, together with two other transgender students in the district and their parents, were granted intervenor status as defendants.

Magistrate Judge Gilbert, to whom the motion for preliminary injunction had been referred by Judge Alonso, issued his report on October 18, 2006, concluding that plaintiffs were unlikely to prevail on their claims, and recommending that the motion be denied. Plaintiffs filed objections with Judge Alonso.

While the objections were pending there were several developments significantly affecting the case. Donald J. Trump was elected president a few weeks after the Magistrate Report was issued, and he then appointed new leadership to the two Departments after his term began on January 20, 2017.  The two Departments then jointly withdrew the Obama Administration Title IX Guidance, opining that it had not been properly issued and that the matter required more study, but not taking any position on whether transgender students had such protection under Title IX, commenting that these issues should be decided at the local level.  Thus, the Trump Administration was, at least as of then, “neutral” on the question, although since then Attorney General Sessions and the Justice Department have gone on record as opposing an expansive interpretation of Title IX to embrace gender identity (and sexual orientation) discrimination claims.

However, shortly after the withdrawal of the Guidance, the 7th Circuit Court of Appeals ruled in a similar case, Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017) (petition for certiorari pending), that Title IX does extend to gender identity discrimination claims, and upheld an injunction ordering a Wisconsin school district to allow a transgender boy to use the boys’ restroom facilities at a public high school.

The Trump Administration actions mooted the part of the lawsuit against the federal government defendants, as the policy the plaintiffs are challenging was no longer federal executive branch policy. Thus, the plaintiffs agreed to drop the federal defendants from the case.  Also, because Student A has graduated, the plaintiffs’ specific objection to District 211’s agreement with the Education Department concerning facilities access for that student was mooted as well.  However, Intervenor Students B and C and their parents, and possibly other transgender students in District 211, would present the same access issues, so the plaintiffs’ claims against the District under Title IX and the Constitution continue so long as the District does not disavow the access policy to which it had agreed.

In essence, Plaintiffs’ Title IX complaint relies on a long-standing Title IX regulation that authorizes schools to maintain sex-separate restroom and locker room facilities, provided that the facilities are comparable in scope and quality. Plaintiffs argue that this authorization of sex-segregated facilities recognizes the privacy concerns of the students (and their parents), and that requiring students to have to share such facilities with transgender students of a different “biological” sex contradicts those privacy concerns.  The Magistrate had rejected this argument in October 2016, and the 7th Circuit’s Whitaker decision subsequently confirmed the Magistrate’s understanding of this issue.

Wrote Judge Alonso, “Discrimination against transgender individuals is sex discrimination under Price Waterhouse, the 7th Circuit explained, because ‘by definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.’  Following Price Waterhouse and its progeny, the Court reasoned that a ‘policy that requires an individual to use a restroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance which in turn violates Title IX.  Providing a gender-neutral alternative was insufficient to relieve the school district from liability under Title IX, the Seventh Circuit explained, because it was ‘the policy itself which violates the Act.”

The plaintiffs tried to distinguish the Whitaker case because it addressed only restrooms, not locker rooms, and because, they insisted, the decision was so “astonishingly wrong” that its reasoning undercuts its “worth even as persuasive authority.”  The problem with that, of course, is that Illinois is in the same 7th Circuit as Wisconsin, so Whitaker is not just persuasive authority; it is binding on Judge Alonso.

The judge insisted that nothing in Whitaker “suggests that restrooms and locker rooms should be treated differently under Title IX or that the presence of a transgendered student in either, especially given additional privacy protections like single stalls or privacy screens, implicates the constitutional privacy rights of others with whom such facilities are shared.  Plaintiffs’ critiques notwithstanding,” he continued, “Whitaker reflects a straightforward application of the long-standing line of sex stereotyping decisions, fully in line with the Supreme Court’s guidance on sex discrimination claims.”  Thus, under Whitaker, plaintiffs could not meet the first test for preliminary injunctive relief: showing the probability that they would prevail on the merits of their claim.  Judge Alonso devoted several paragraphs to explaining why the plaintiffs’ attempts to distinguish or disparage Whitaker were unavailing in meeting their burden under the motion.

“Furthermore,” he wrote, “even if Plaintiffs had shown a likelihood of success on the merits, they would still not be entitled to a preliminary injunction because they have not shown they are likely to suffer irreparable harm in the absence of an injunction, or that they lack an adequate remedy at law in the event that they ultimately succeed on their claims.” Indeed, as far as demonstrating harm goes, “the only specific harm to which they point is the risk of running late to class by using alternate restrooms to avoid sharing with a transgender student and the ‘embarrassment, humiliation, anxiety, fear, apprehension, stress, degradation , and loss of dignity’ allegedly felt by Student Plaintiffs arising from such sharing.”  The Magistrate [Judge Gilbert] had found that these were insufficient to establish irreparable injury, because courts routinely award monetary damages for emotional distress, and “the risk of being late to class has not been shown to have any meaningful impact on Student Plaintiffs’ education.”

Judge Alonso considered it worth nothing that the District’s practice of letting transgender students use appropriate facilities had been going on for nearly three years when this lawsuit was filed, but “either Student Plaintiffs did not notice that transgender students were using restrooms consistent with their gender identity, or they knew and tolerated it for several years,” as no examples of actual incidents were proffered in support of their motion. “The passage of time therefore further undermines Plaintiffs’ claim of irreparable harm,” wrote Alonso.  “This Court agrees with the Magistrate Judge’s assessment, ‘there is no indication that anything has negatively impacted Girl Plaintiffs’ education.”  Judge Alonso overruled the objections, and accepted the Magistrate’s recommendation to deny the preliminary injunction.

Now that pretrial motions have been disposed of, the court gave the defendants until January 30, 2018, to file an answer to the complaint, and set a status hearing for February 8. In light of the Whitaker case and Judge Alonso’s strongly-worded opinion, one would expect the school district to promptly file a motion for summary judgment, if ADF does not decide within the next few weeks to fold up its tent and steal away.  Of course, what could change the situation dramatically would be a grant of certiorari by the Supreme Court of the school district’s petition in the 7th Circuit Whitaker case.  But the parties in that case were reportedly close to a settlement and had asked the Supreme Court to extend the time for Whitaker’s counsel to file a response to the cert petition, so it appears likely that a cert grant will not be forthcoming during the month of January leading up to School District 211’s court-imposed deadline to respond to the complaint in this case.

The transgender student Intervenors are represented by the ACLU of Illinois and the national ACLU Foundation, with pro bono attorneys from Mayer Brown LLP.

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Oregon Court of Appeals Rules against Baker in “Gay Wedding Cake” Case

A unanimous three-judge panel of the Court of Appeals of Oregon affirmed a ruling by the Oregon Bureau of Labor and Industries (BOLI) that Melissa and Aaron Klein, doing business as Sweetcakes by Melissa, violated the state’s public accommodations law by refusing to provide a wedding cake for Rachel and Laurel Bowman-Cryer.  The ruling upheld an award of $135,000 in damages, rejecting the Kleins’ argument that this application of the state law to them violates their 1st Amendment rights.  However, the court overruled the BOLI’s determination that the Kleins’ public remarks in connection with this case had also violated a separate section of the law forbidding businesses to announce in advance that they will discriminate in the future.  Judge Chris Garrett wrote for the panel.

This case is, for all practical purposes, a virtual clone of the Colorado case, Masterpiece Cakeshop, which was argued at the U.S. Supreme Court on December 5, 2017.

Rachel and Laurel first met in 2004 and decided to marry in 2012. Rachel and her mother, Cheryl, went to a Portland bridal show as part of their wedding planning, and visited Melissa Klein’s booth at the show.  Sweetcakes by Melissa had designed, created and decorated a wedding cake for Cheryl’s wedding two years before, and Rachel and Cheryl told Melissa that they would like to order a cake from her.  A cake-testing appointment was set up for January 17, 2013.  Rachel and Cheryl visited the bakery shop, in Gresham, for their appointment.  Melissa was at home performing child care, so the appointment was with her husband and co-proprietor, Aaron.  During the tasting, Aaron asked for the names of the bride and groom, and was told there were two brides, Rachel and Laurel.  “At that point,” wrote Judge Garrett, “Aaron stated that he was sorry, but that Sweetcakes did not make wedding cakes for same-sex ceremonies because of his and Melissa’s religious convictions.  Rachel began crying, and Cheryl took her by the arm and walked her out of the shop.  On the way to their car, Rachel became ‘hysterical’ and kept apologizing to her mother, feeling that she had humiliated her.”

In their car, Cheryl assured Rachel that they would find somebody else to make the cake. After driving a short distance, Cheryl turned back and re-entered the bakery by herself to talk with Aaron.  “During their conversation,” wrote Judge Garrett, “Cheryl told Aaron that she had previously shared his thinking about homosexuality, but that her ‘truth had changed’ as a result of having ‘two gay children.’  In response, Aaron quoted a Bible passage from the Book of Leviticus, stating, ‘You shall not lie with a male as one lies with a female; it is an abomination.’  Cheryl left and returned to the car, where Rachel had remained, ‘holding [her] head in her hands, just bawling.”  Cheryl telling Rachel that Aaron had called her an “abomination” didn’t make things any better.  Rachel later stated that “it made me feel like they were saying God made a mistake when he made me, that I wasn’t supposed to be, that I wasn’t supposed to love or be loved or have a family or live a good life and one day go to heaven.”  When they got home and told Laurel what had happened, she recognized the “abomination” reference from Leviticus and “felt shame and anger.  Rachel was inconsolable, which made Laurel even angrier.”  It was Laurel who filed an online complaint with the Oregon Department of Justice, but later she filed a complaint with BOLI, as did Rachel.

News of the complaints generated a wave of media attention, which resulted in death threats and adverse attention to Rachel and Laurel as well as to the Kleins. Ultimately, BOLI’s investigation concluded that the Kleins violated two sections of the public accommodations law, one forbidding discrimination by businesses in providing goods and services because of the sexual orientation of customers, the other, based on statements that the Kleins had made about the case, as well as a sign they posted in their bakery, that they violated a provision making it unlawful for a business to announce its intent to discriminate against customers because of their sexual orientation.  An administrative law judge (ALJ) sustained the first but not the second, finding that the comments in question related to the Klein’s position on this case and was not a general announcement of intent to discriminate in the future.  At the agency level, however, BOLI, disagreeing with the ALJ on this point, ruled that both provisions had been violated, and the Kleins appealed to the Court of Appeals.  The ALJ and BOLI agreed on an award of $135,000 in damages to Rachel and Laurel, to compensate them for the mental, emotional or physical suffering sustained because of the discrimination.  The agency rejected a claim for additional damages for mental, emotional or physical suffering stemming from the media and public response to their filing of the discrimination charges against the Kleins.

The first issue for the court was to determine whether the Kleins were correct in arguing that they had not violated the statute because, as they contended, their business does not discriminate against people because of their status as gay, but rather, in this instance, was declining to “facilitate the celebration of a union that conveys a message about marriage to which they do not subscribe and that contravenes their religious beliefs.” The court rejected this attempt to skirt the issue, commenting that “there is no reason to believe that the legislature intended a ‘status/conduct’ distinction specifically with regard to the subject of ‘sexual orientation.’”
Judge Garrett pointed to the state’s passage of the Oregon Family Fairness Act, which specifically provides that same-sex couples should be entitled to the same rights and privileges of different-sex couples. “The Kleins have not provided us with any persuasive explanation for why the legislature would have intended to grant equal privileges and immunities to individuals in same-sex relationships while simultaneously excepting those committed relationships from the protections of” the public accommodations law. The court pointed out that “under the distinction proposed by the Kleins, owners and operators of businesses could continue to oppress and humiliate black people simply by recasting their bias in terms of conduct rather than race.  For instance, a restaurant could refuse to serve an interracial couple, not on account of the race of either customer, but on account of the conduct – interracial dating – to which the proprietor objected.  In the absence of any textual or contextual support, or legislative history on that point, we decline to construe [the law] in a way that would so fundamentally undermine its purpose.”

Indeed, wrote the court, “The Kleins refused to make a wedding cake for the complainants precisely and expressly because of the relationship between sexual orientation and the conduct at issue (a wedding).  And, where a close relationship between status and conduct exists, the Supreme Court has repeatedly rejected the type of distinction urged by the Kleins.”  Judge Garrett cited the Supreme Court’s 2010 ruling, upholding the University of California-Hasting’s refusal to extend official recognition to a Christian Legal Society chapter whose membership policies excluded gay people, in which Justice Ruth Bader Ginsburg, writing for the Court, made this point, as well as Lawrence v. Texas, the Texas sodomy law case, where Justice Kennedy wrote for the Court that making gay conduct a crime was “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

Turning to the constitutional challenges, the court rejected both the free speech and free exercise of religion arguments. For one thing, the court found, while conceding there would be an element of artistic expression and creativity in the process of making a wedding cake, this did not present the type of free speech issues that would merit strict scrutiny from the court.  Rather, the court found, the Supreme Court’s public accommodations jurisprudence treated such laws as neutral laws intended to achieve a legitimate purpose of extending equal rights to participate in the community, and not specifically targeted on particular political or religious views held by a particular business person.  The Kleins premised their arguments largely on the Supreme Court’s Hurley (St. Patrick’s Day Parade) and Dale (Boy Scouts) cases, in which the Supreme Court held that application of a public accommodations law to require an organization or association to include gay people would have to yield to the free expression rights of an organization that has a particularly expressive purpose.  They also focused on the famous flag salute cases from World War II and other cases in which the Supreme Court ruled that the government cannot compel private individuals to express a message dictated by the government.

Wrote Judge Garrett, “We must decide whether the Kleins’ cake-making activity is sufficiently expressive, communicative, or artistic so as to implicate the First Amendment, and, if it is, whether BOLI’s final order compelling the creation of such expression in a particular circumstance survives First Amendment scrutiny.” Reviewing the way the Kleins produced customized wedding cakes for their customers, the court found, “the Kleins’ argument that their products entail artistic expression is entitled to be taken seriously.  That being said, we are not persuaded that the Kleins’ wedding cakes are entitled to the same level of constitutional protection as pure speech or traditional forms of artistic expression.  In order to establish that their wedding cakes are fundamentally pieces of art, it is not enough that the Kleins %believe% them to be pieces of art.  For First Amendment purposes, the expressive character of a thing must turn not only on how it is subjectively perceived by its maker, but also on how it will be perceived and experienced by others.  Here, although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience %any% wedding cake that the Kleins create predominantly as ‘expression’ rather than as food.”

Further, the court found that it would be a different case “if BOLI’s order had awarded damages against the Kleins for refusing to decorate a cake with a specific message requested by a customer (‘God Bless This Marriage,’ for example) that they found offensive or contrary to their beliefs.” Then an articulated message would be conveyed, and the First Amendment issue would be much stronger.  Responding to the Kleins’ concern that the wedding cake communicates a “celebratory message” about the wedding, which they did not wish to communicate, the court pointed out that “the Kleins have not raised a nonspeculative possibility that anyone attending the wedding will impute that message to the Kleins.”  In short, wedding guests will not respond to seeing the cake at the reception by thinking that the baker is “celebrating” or “approving” this wedding.  There is nothing in the law that requires the Kleins to formally endorse same-sex marriages.

However, having found that there is at least some First Amendment free speech interest involved, the court applied “intermediate scrutiny” and found that the state had a compelling interest “both in ensuring equal access to publicly available goods and services and in preventing the dignitary harm that results from discriminatory denials of service. That interest is no less compelling with respect to the provision of services for same-sex weddings,” wrote Garrett.  “Indeed, that interest is particularly acute when the state seeks to prevent the dignitary harms that result from the unequal treatment of same-sex couples who choose to exercise their fundamental right to marry,” as established in Obergefell, the Supreme Court’s marriage equality decision.

The court concluded that “any burden imposed on the Kleins’ expression is no greater than essential to further the state’s interest,” pointing out that “BOLI’s order does not compel the Kleins to express an articulable message with which they disagree. … Given that the state’s interest is to avoid the ‘evil of unequal treatment, which is the injury to an individual’s sense of self-worth and personal integrity,’” wrote Garrett, quoting from a prior Oregon Supreme Court case, “there is no doubt that interest would be undermined if businesses that market their goods and services to the ‘public’ are given a special privilege to exclude certain groups from the meaning of that word.”

Turning to the free exercise of religion point, the court noted that the Supreme Court held in Employment Division v. Smith that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribed (or prescribes) conduct that his religion prescribes (or proscribes).”  The “incidental effect” on religion of such laws does not violate the 1st Amendment.

The court devoted most of its analysis on this point to distinguishing cases offered by the Kleins as exceptions to this rule. All of those cases involved special circumstances where it could be shown that although the laws in question were neutral on their face, they had been intended by the legislature to apply to particular religious practices and were thus not really “neutral to religion.”  The Kleins also pushed a “hybrid rights” theory, mentioned in passing in the Smith case, under which when a party’s claim arises under two different constitutional rights guarantees (in this case speech and religious exercise) the burden of justification on the state should be raised to strict scrutiny.  The court observed that apart from the passing mention in Smith, that concept had not been developed by the Supreme Court, had been rejected by many other courts, and specifically had never been adopted by the Oregon Supreme Court in construing the state’s constitution.

The court rejected the Kleins’ arguments that recognizing a limited or narrow exception for businesses whose owners had religious objections to same-sex marriage would have only a “minimal” effect on “the state’s antidiscrimination objectives,” pointing out that “those with sincere religious objections to marriage between people of different races, ethnicities, or faiths could just as readily demand the same exemption. The Kleins do not offer a principled basis for limiting their requested exemption in the manner that they propose, except to argue that there are ‘decent and honorable’ reasons, grounded in religious faith, for opposing same-sex marriage, as recognized by the United States Supreme Court in Obergefell.  That is not in dispute.  But neither the sincerity, nor the religious basis, nor the historical pedigree of a particular belief has been held to give a special license for discrimination,” wrote Garrett.

The court rejected the Kleins’ claim for free speech and religious exemptions under the Oregon Constitution, pointing out that they had not advanced any additional arguments peculiar to Oregon constitutional jurisprudence that would justify going beyond the federal constitutional analysis in this case. The court also rejected the argument that BOLI’s ruling should be set aside because BOLI’s Commissioner had made public comments about the case before voting to affirm the ALJ’s ruling and award the damages.  The court found that the commissioner’s comments “fall short of the kinds of statements that reflect prejudgment of the facts or an impermissibly closed-minded view of law or policy so as to indicate that he, as a decision maker, cannot be impartial.”  The court rejected the Kleins’ objection to the damage award, finding that the ALJ and BOLI had scrupulously limited the award to damages flowing from the Kleins’ discrimination and had an adequate basis in the trial record to award the amounts in question, which were not out of line with awards in other cases.

However, the court concluded that BOLI erred by failing to affirm the ALJ’s conclusion that the Kleins had not violated a section of the law that forbids any business “to publish, circulate, issue or display… any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of. . . sexual orientation.” The court, agreeing with the ALJ but not with BOLI, found that the Kleins’ public comments about their determination to defend this case and to adhere to their religious beliefs did not specifically violate this provision.

The Kleins were careful in wording the sign they put up at their bakery and in their comments on Facebook and in the press to avoid stating that they would discriminate because of a customer’s sexual orientation. Their position throughout this case is that they were not engaging in such discrimination.  The court was not willing to interpret this section of the statute as exposing businesses to additional liability for stating publicly their belief that their past action had not violated the law.  Since BOLI’s calculation of damages awarded to Rachel and Laurel did not include any amount for violation of this section, however, the reversal of this part of the decision did not require any reduction in damages.

The Kleins were represented in this appeal by attorneys from several law firms, some specializing in championing socially conservative causes, so it would not be surprising to see them file an appeal with the Oregon Supreme Court. The Oregon attorney general’s office represented BOLI.  Lambda Legal filed an amicus brief on behalf of Rachel and Laurel.  A long list of liberal religious associations and organizations joined in an amicus brief filed by pro bono attorneys in support of BOLI’s ruling, and amicus briefs were also filed by the ACLU and Americans United for Separation of Church and State.

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Ten Federal Judges Vote “No” on Trump Transgender Military Ban

 

President Donald Trump’s July 26 tweet announcing that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military,” as amplified by an August 25 Memorandum, has encountered unanimous resistance from ten federal judges who have had an opportunity to vote on it by Christmas. Nine of the ten were appointed by Presidents Bill Clinton and Barack Obama.  One, U.S. District Judge Marvin Garbis in Baltimore (District of Maryland), was appointed by George H. W. Bush.  As of December 22, the Trump policies had provoked four nationwide preliminary injunctions, and two federal circuit courts of appeals had refuse “emergency” motions by the government to stay the injunctions in connection with a January 1 date for allowing transgender individuals to enlist.

The most recent relevant opinions are Jane Doe 1 v. Trump, 2017 U.S. App. LEXIS 26477 (D.C. Cir., Dec. 22, 2017); Stockman v. Trump, Case No. EDCV 17-1799 JGB (KKx) (C.D. Cal., Dec. 22, 2017); Stone v. Trump, No. 17-2398 (4th Cir., Dec. 21, 2017); and Karnoski v. Trump, 2017 WL 6311305, 2017 U.S. Dist. LEXIS 167232 (W.D. Wash., Dec. 11, 2017).  All the major national LGBT groups are involved in at least one of these cases, and several of the nation’s major law firms are participating as cooperating attorneys.

Trump’s August 25 Memorandum set out three policies: a requirement that all transgender personnel be discharged, a ban on allowing transgender individuals to enter the military, and a ban on use of Defense Department or Homeland Security Department funds to pay for sex reassignment procedures for military members. The Memorandum assigned the Defense Department the task of figuring out how to implement these policies, and to report back in writing to the president in February, and meanwhile nobody would be discharged or denied medical treatment.  But the Memorandum specified that the existing ban on enlistments would remain in effect indefinitely, contrary to a Defense Department announcement in June that it would be lifted on January 1, 2018.

The four lawsuits were filed in different federal district courts shortly after the policy was announced, with complaints alleging a violation of Equal Protection and a variety of other claims, but all seeking preliminary injunctions to stop the Trump policies from going into effect while the cases are litigated. They all specifically asked that the Pentagon adhere to the previously announced date of January 1, 2018, to lift the ban on transgender people enlisting.  The Justice Department moved to dismiss all four cases, and vigorously opposed the motions for preliminary injunctions, which if granted would block the policies announced in the President’s August 25 Memorandum from going into effect while the cases are being litigated and would requirement implementation of the January 1 date for allowing transgender people to enlist.

As of December 22, when U.S. District Judge Jesus G. Bernal, sitting in Riverside (Central District of California), issued a nationwide preliminary injunction, all four district judges had issued such injunctions, beginning with D.C. District Judge Colleen Kollar-Kotelly on October 30, Judge Garbis in Maryland on November 21, and Judge District Judge Marsha J. Pechman in Seattle (Western District of Washington) on December 11.  The subsequent opinions all cited to and quoted from Judge Kollar-Kotelly’s opinion, none stating any disagreement with her analysis.  On December 21, the 4th Circuit Court of Appeals refused to stay Judge Garbis’s injunction, and on December 22, the D.C. Circuit refused to stay Judge Kollar-Kotelly’s injunction.  As of December 22, DOJ had appealed Judge Pechman’s ruling to the 9th Circuit, and a similar appeal was likely to be filed from Judge Bernal’s ruling, but it appeared unlikely that an “emergency” stay of either of these preliminary injunctions would be ordered, or would necessarily have any effect, since the nationwide preliminary injunctions issued by Judges Garbis and Kollar-Kotelly are in effect… unless DOJ can find a U.S. Supreme Court Justice who is willing to issue a stay.

All four district judges rejected the Justice Department’s argument that the cases should be dismissed because no actions had actually yet been taken to implement Trump’s announced policies, which were being “studied” by the Defense Department under an “Interim Guidance” issued by Defense Secretary James Mattis in September. All four judges credited the plaintiffs’ arguments that the announcement of the policies and the instruction to the Defense Department to devise a method of implementation had already thrown into turmoil and uncertainty the lives of presently serving transgender individuals as well as transgender people who were anticipating signing up for military service beginning January 1, including transgender students in the nation’s military academies anticipating joining the active forces upon graduation, and they had also disrupted plans for sex reassignment surgery for several of the plaintiffs.  While Judge Kollar-Kotelly found that none of the plaintiffs in the case before her had individual standing to contest the surgery restriction, so she granted the Justice Department’s motion to dismiss that part of the complaint in the case before her, the three other judges all found that some of the plaintiffs in their cases were directly affected by the surgery ban and denied the Justice Department’s motion to dismiss that part of their cases.  Ultimately, all four cases are proceeding on an Equal Protection theory, with the judges finding that the plaintiffs had standing to bring these constitutional challenges, which were ripe for consideration on the merits.

As to the preliminary injunction motions, all four judges agreed that the high standards for enjoining the implementation of government policies were easily met in these cases. They all agreed that policies treating people adversely because of their gender identity should be reviewed by the same standard as policies that discriminate because of sex, which is called “intermediate scrutiny.”  Under this standard, the government bears the burden of showing that it has a justification for the policy that is “exceedingly persuasive,” “genuine,” “not hypothesized,” and “not invented post hoc in response to litigation,” and “must not rely on overbroad generalizations,” wrote Judge Bernal in his December 22 opinion, picking up quotes from prior cases.

“Defendants’ justifications do not pass muster,” Bernal wrote.  “Their reliance on cost is unavailing, as precedent shows the ease of cost and administration do not survive intermediate scrutiny even if it is significant.  Moreover, all the evidence in the record suggests the ban’s cost savings to the government is miniscule.  Furthermore, Defendants’ unsupported allegation that allowing transgender individuals to be in the military would adversely affect unit cohesion is similarly unsupported by the proffered evidence.  These justifications fall far short of exceedingly persuasive.”  Bernal concluded, as had the other three district judges, that plaintiffs were likely to succeed on the merits of their Equal Protection claim, so it was unnecessary to analyze the other constitutional theories they offered.

He also rejected DOJ’s argument that the court should follow the normal practice of according “a highly deferential level of review” to executive branch decisions about military policy. Quoting a Supreme Court ruling from 1981, which such that such deferential review is most appropriate when the “military acts with measure, and not ‘unthinkingly or reflexively,’”  he observed, “Here, the only serious study and evaluation concerning the effect of transgender people in the armed forces led the military leaders to resoundingly conclude there was no justification for the ban.”  He agreed with Judge Kollar-Kotelly that “the reasons offered for categorically excluding transgender individuals were not supported and were in fact contradicted by the only military judgment available at the time.”

Bernal also easily concluded that blocking implementation of the policy and ending the enlistment ban on January 1 were necessary to prevent irreparable harm to the plaintiffs.  This was basically a determination that allowing the Trump policies to go into effect would cause injuries to transgender individuals that could not be completely remedied by monetary damages awarded after the fact.  The Justice Department argued that “separation from the military would not constitute irreparable harm because it is within the Court’s equitable powers to remedy the injury,” but Bernal countered, “These arguments fail to address the negative stigma the ban forces upon Plaintiffs,” including the “damaging public message that transgender people are not fit to serve in the military.  There is nothing any court can do to remedy a government-sent message that some citizens are not worthy of the military uniform simply because of their gender.  A few strokes of the legal quill may easily alter the law, but the stigma of being seen as less-than is not so easily erased.”  Furthermore, federal courts have frequently held that “deprivation of constitutional rights unquestionably constitutes irreparable injury.”

As to the “balance of equities” and “public interest” factors that courts are supposed to weigh in deciding whether to enjoin government action, Bernal found that these weighed in favor of granting the injunction. Invoking “national defense” and “unit cohesion” were not persuasive in light of the extended study by the Defense Department that led to its decision in June 2016 to end the ban and to set in motion a change in recruitment polices to take place July 1, 2017 (which was extended by Secretary Mattis to January 1, 2018).

 

Judge Bernal quoted from Judge Kollar-Kotelly’s opinion: “There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effect on the military at all. In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects.”  Judge Bernal saw no reason to depart from the analysis by Judges Garbis and Kollar-Kotelly in their decisions to issue preliminary injunctions.

Judge Bernal issued a two-part order. The first part enjoins the defendants “from categorically excluding individuals … from military service on the basis that they are transgender.” The second part provides that “no current service member … may be separated, denied reenlistment, demoted, denied promotion, denied medically necessary treatment on a timely basis, or otherwise subjected to adverse treatment or differential terms of service on the basis that they are transgender.”

The Justice Department sought to have the preliminary injunctions stayed, but so far the district judges have not been receptive, so DOJ took the next step of filing appeals in the D.C., 4th and 9th Circuits, and, claiming an “emergency” as January 1 drew near, sought particularly to stay the part of the injunctions that would require lifting the enlistment ban as of that date.

On December 21, a 4th Circuit three-judge panel rejected the motion for stay without comment. The next day, however, a three-judge panel of the D.C. Circuit issued an opinion explaining its refusal to grant the requested stay.  Wrote the D.C. panel, “Appellants have not shown a strong likelihood that they will succeed on the merits of their challenge to the district court’s order.  As the district court explained, ‘the sheer breadth of the exclusion ordered by the [Memorandum], the unusual’ and abrupt ‘circumstances surround the President’s announcement of [the exclusion], the fact that the reasons given for [it] do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself,’ taken together, ‘strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious.’”

The court noted in particular the adverse effect that staying the injunction would have on transgender individuals who have been attending the service academies and anticipating graduating and being accepted into the active service as officers. Indeed, the court suggested, federal law actually treats students in the service academies as members of the military, so letting the discharge policy go into effect posed an immediate threat to them.

In seeking “emergency” relief, DOJ contended that the Defense Department was not ready to being enlisting transgender people. In an order that Judge Kollar-Kotelly had issued on December 11, denying an emergency stay motion, she pointed out that DOJ was relying on “sweeping and conclusory statements” without “explaining what precisely needs to be completed by January 1, 2018, in order for Appellants to be prepared to begin transgender accessions.”

Totally undermining this emergency motion was the Defense Department’s own action. “With respect to implementation of transgender accession into the military,” wrote the D.C. panel, “Appellants did not even inform this court of a Defense Department memorandum issued December 8, 2017, that provides detailed directions and guidance governing ‘processing transgender applicants for military service,’ directions that the Secretary of Defense’s Department commanded ‘shall remain in effect until expressly revoked.’  That open-ended directive documenting concrete plans already in place to govern accession was issued before the district court ruled on the motion for a stay pending appeal.”  Thus, the government is tripping over itself in the urgency of DOJ to satisfy the President’s demand that his whims be obeyed.  And the court was totally unconvinced by DOJ’s argument that, in the absence of the preliminary injunction, Mattis had any discretion to alter the terms set out in Trump’s Memorandum.

The court noted that “the enjoined accession ban would directly impair and injure the ongoing educational and professional plans of transgender individuals and would deprive the military of skilled and talented troops,” so “allowing it to take effect would be counter to the public interest.”

“Finally,” wrote the court, “in the balancing of equities, it must be remembered that all Plaintiffs seek during this litigation is to serve their Nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the Nation, the people of the United States, and the Constitution against all who would attack them.”

In addition to denying the stay, the D.C. panel set out an expedited calendar for addressing DOJ’s appeal of the District Court’s decision to issue the injunction, directing that oral argument be scheduled for January 27, 2018. Furthermore, apparently reacting to the maze of unfamiliar acronyms strewn through the papers filed with the court, making them difficult for the judges to process efficiently, “the parties are urged to limit the use of abbreviations, including acronyms.  While acronyms may be used for entities and statues with widely recognized initials, briefs should not contain acronyms that are not widely known.

Perhaps federal judges are too polite to say so, but the clear import of their opinions in this litigation is that President Trump lied in his original tweet when he said that his decision was made “after consultation with my Generals and military experts.” To date, neither the president nor anybody speaking for him has actually identified any “military experts” or “Generals” who were consulted before the president decided to take this action.  The Defense Department, confronted with the allegations in the complaints about the extended studies that preceded the June 2016 policy announcement by Secretary Carter, has not cited any studies to counter them.  Secretary Mattis, who was on vacation when the president issued his tweet, was informed that it was happening the night before, according to press reports, but is not said to have been consulted about whether this policy change should be made.  Thus, the reference in the court opinions to the lack of “facts” backing up this policy, and the unanimous agreement that the usual judicial deference to military expertise is inappropriate in these cases.

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Two Federal Judges Deal Setbacks to Trump’s Transgender Military Ban

Federal district judges on opposite coasts dealt setbacks to President Donald J. Trump’s anti-transgender military policy on December 11.  U.S. District Judge Colleen Kollar-Kotelly of the District Court in Washington, D.C., rejected a motion by the Justice Department in Doe v. Trump to stay her preliminary injunction that requires the Defense Department to allow transgender people to apply to join the service beginning January 1, 2018.  And U.S. District Judge Marsha J. Pechman refused to dismiss the complaint in Karnoski v. Trump, a lawsuit challenging the anti-transgender service ban, while granting the plaintiffs’ motion for a preliminary injunction against implementation of the policy.  Also on December 11, U.S. District Judge Jesus G. Bernal in Los Angeles heard arguments in support of a motion for preliminary injunction in Stockman v. Trump, a fourth lawsuit challenging the ban.

Judge Kollar-Kotelly’s decision was predictable, given her October 30 ruling granting the preliminary injunction and a more recent ruling “clarifying,” at the request of the Justice Department, that she really intended to require the Defense Department to allow transgender individuals to begin enlisting on January 1.  The Justice Department incredibly claimed that this January 1 deadline created an emergency situation, but their argument was significantly undercut by reports last week that the Pentagon had, in response to the judge’s earlier Order, put into motion the steps necessary to comply.

In support of its motion for a stay, DOJ presented a “declaration” from Acting Deputy Assistant Secretary of Defense for Military Personnel Policy Lernes J. Hebert, who claimed that implementing the court’s order on January 1 would “impose extraordinary burdens on the Department and the military services” and that “notwithstanding the implementation efforts made to date, the Department still would not be adequately and properly prepared to begin processing transgender applicants for military service by January 1, 2018.”

The judge found this unconvincing, pointing out that DoD has had almost a year and a half to prepare for this eventuality, dating back to former Secretary of Defense Ashton Carter’s June 2016 Directive pointing to a July 1, 2016, implementation date for allowing transgender people to enlist, which was extended for six months by Secretary James Mattis at the end of June 2017.  “Moreover,” she wrote, “the Court issued the preliminary injunction in this case approximately six weeks ago, and since then Defendants have been on notice that they would be required to implement the previously established policy of beginning to accept transgender individuals on January 1, 2018.  In other words, with only a brief hiatus, Defendants have had the opportunity to prepare for the accession of transgender individuals into the military for nearly one and a half years.”

In opposition to the motion, the plaintiffs had submitted a declaration by Dr. George Richard Brown, who has trained “approximately 250 medical personnel working in Military Entrance Processing Stations (MEPS) throughout the military” in anticipation of implementing the accessions policy, and a declaration by former Secretary of the Navy Ray Mabus, Jr., who stated that “the Services had already completed almost all of the necessary preparation for lifting the accession ban” as long as a year ago.

As to the so-called emergency nature of this motion, Judge Kollar-Kotelly wrote, “As a final point, the Court notes that Defendants’ portrayal of their situation as an emergency is belied by their litigation tactics. The Court issued its preliminary injunction requiring Defendants to comply with the January 1, 2018 deadline on October 30, 2017.  Defendants did not file an appeal of that decision until November 21, 2017, and did not file the current motion for a stay of that deadline until December 6, 2017, requesting a decision by noon today, December 11, 2017.  There is also no indication that Defendants have sought any sort of expedited review of their appeal, the first deadlines in which are not until January, 2018.  If complying with the military’s previously established January 1, 2018 deadline to begin accession was as unmanageable as Defendants now suggest, one would have expected Defendants to act with more alacrity.”

However, the judge’s denial of the stay may prove more symbolic than effective in terms of allowing transgender people to actually enlist, since she noted that the policy that will go into effect on January 1 presents significant barriers to enlistment on medical grounds.  The Pentagon is planning to require that transgender applicants show, generally speaking, that for at least 18 months prior to their applications they have been “stable” with regard to their gender identity.  Nobody can enlist, for example, if they have undergone gender confirmation surgery within the past 18 months, since the medical standard will require that they have been “stable” for at least 18 months after the last surgical treatment.  Similarly, anybody first diagnosed as having gender dysphoria within the previous 18 months cannot enlist, since they will have to have certified by a licensed medical provider that they have been “stable without clinically significant distress or impairment” for at least 18 months since their diagnosis.  And those under treatment, for example taking hormone therapy, will have to show they have been stable for at least 18 months since commencing therapy.  In addition, of course, applicants will have to meet all medical requirements applicable to everybody regardless of gender identity, and it is well-known that a substantial percentage of potential enlistees are disqualified on physical/medical grounds.

As to the government’s “extraordinary burden” argument, Judge Kollar-Kotelly noted, “There is no evidence in the record that would suggest that the number of transgender individuals who might seek to accede on January 1, 2018, would be overwhelmingly large.  To the contrary, although the Court understands that there may be some dispute as to the amount of transgender individuals in the general population and in the military, the record thus far suggests that the number is fairly small.”

Plaintiffs in Doe v. Trump are represented by National Center for Lesbian Rights and GLAD.

The plaintiffs in Karnoski v. Trump, pending in the district court in Seattle, are represented by Lambda Legal and Outserve/SLDN.  They alleged four theories for challenging the policy: equal protection, substantive due process (deprivation of liberty), procedural due process, and freedom of speech.  Judge Pechman found that three out of these four theories were sufficiently supported by the complaint to deny the Justice Department’s motion to dismiss the case, although she granted the motion as to the procedural due process claim.  She efficiently disposed of various procedural objections to the lawsuit, finding that all of the plaintiffs have standing to proceed, including the organizational plaintiffs and the State of Washington, whose motion to intervene as a plaintiff had previously been granted, and that the dispute is ripe for judicial resolution because of the imminent implementation of Trump’s policy directives.

As had two district judges before her, Judge Pechman cut and pasted screen captures of the president’s July 26 tweet announcing the policy into her opinion, and used particularly cutting language to reject DOJ’s argument that the president’s policy decision was entitled to the kind of judicial deference usually accorded to military policy decisions. “Defendants rely on Rostker v. Goldberg (1981). In Rostker, the Supreme Court considered whether the Military Selective Service Act (MSSA), which compelled draft registration for men only, was unconstitutional.  Finding that the MSSA was enacted after extensive review of legislative testimony, floor debates, and committee reports, the Supreme Court held that Congress was entitled to deference when, in ‘exercising the congressional authority to raise and support armies and make rules for their governance,’ it does not act ‘unthinkingly’ or ‘reflexively and not for any considered reason.’  In contrast, the prohibition on military service by transgender individuals was announced by President Trump on Twitter, abruptly and without any evidence of considered reason or deliberation.  The policy is therefore not entitled to Rostker deference.  Because Defendants have failed to demonstrate that the policy prohibiting transgender individuals from serving openly is substantially related to important government interests, it does not survive intermediate scrutiny.”  In a footnote, the judge added, “For the same reasons, the policy is also unlikely to survive rational basis review.”

The court concluded that all the tests for preliminary injunctive relief established by the 9th Circuit Court of Appeals (Washington State is within the 9th Circuit) had easily been satisfied.  Her Order “enjoins Defendants and their officers, agents, servants, employees, and attorneys, and any other person or entity subject to their control or acting directly or indirectly in concert or participation with Defendants from taking any action relative to transgender individuals that is inconsistent with the status quo that existed prior to President Trump’s July 26, 2017 announcement.  This Preliminary Injunction shall take effect immediately and shall remain in effect pending resolution of this action on the merits or further order of this Court.”

Thus, Judge Pechman issued the third preliminary injunction against Trump’s anti-transgender policy, after those issued by Judge Kollar-Kotelly on October 30 and U.S. District Judge Marvin J. Garbis in Stone v. Trump on November 21 in the District Court in Maryland. All three preliminary injunctions block the discharge of transgender service members while the case is pending and require the Pentagon to allow transgender people to begin enlisting on January 1.  The injunctions by Judge Garbis and Judge Pechman also block the administration from refusing to fund transition-related health care (including surgery).  In the face of this united front from the three judges, it seems likely that Judge Bernal will eventually issue a similar order, so attention will turn to the Courts of Appeals to which DOJ has appealed the first ruling and presumably will soon appeal the others.

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Supreme Court Denies Review in Title VII Sexual Orientation Discrimination Case

The U.S. Supreme Court announced on December 11 that it will not review a decision by a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals, which ruled on March 10 that a lesbian formerly employed as a security guard at a Georgia hospital could not sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964.  The full 11th Circuit denied a motion to reconsider the case on July 10, and Lambda Legal, representing plaintiff Jameka Evans, filed a petition with the Supreme Court seeking review on September 7.  Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), rehearing en banc denied, 7/6/2017, cert. denied, 2017 WL 4012214 (12/11/2017).

At the heart of Lambda’s petition was an urgent request to the Court to resolve a split among the lower federal courts and within the federal government itself on the question whether Title VII, which bans employment discrimination because of sex by employers that have at least 15 employees, can be interpreted to ban discrimination because of sexual orientation.

Nobody can deny that members of Congress voting on the Civil Rights Act in 1964 were not thinking about banning sexual orientation discrimination at that time, but their adoption of a general ban on sex discrimination in employment has been developed by the courts over more than half a century to encompass a wide range of discriminatory conduct reaching far beyond the simple proposition that employers cannot discriminate against an individual because she is a woman or he is a man.

Early in the history of Title VII, the Supreme Court ruled that employers could not treat people differently because of generalizations about men and women, and by the late 1970s had accepted the proposition that workplace harassment of women was a form of sex discrimination. In a key ruling in 1989, the Court held that discrimination against a woman because the employer considered her inadequately feminine in her appearance or behavior was a form of sex discrimination, under what was called the sex stereotype theory, and during the 1990s the Court ruled that a victim of workplace same-sex harassment could sue under Title VII, overruling a lower court decision that a man could sue for harassment only if he was being harassed by a woman, not by other men.  In that decision for a unanimous court, Justice Antonin Scalia opined that Title VII was not restricted to the “evils” identified by Congress in 1964, but could extend to “reasonably comparable evils” to effectuate the legislative purpose of achieving a non-discriminatory workplace.

By the early years of this century, lower federal courts had begun to accept the argument that the sex stereotype theory provided a basis to overrule earlier decisions that transgender people were not protected from discrimination under Title VII.  There is an emerging consensus among the lower federal courts, bolstered by rulings of the Equal Employment Opportunity Commission (EEOC), that gender identity discrimination is clearly discrimination because of sex, and so the 11th Circuit Court of Appeals ruled several years ago in a case involving a transgender woman fired from a research position at the Georgia legislature.

However, the idea that some variant of the sex stereotype theory could also expand Title VII to protect lesbian, gay or bisexual employees took longer to emerge.  It was not until 2015 that the EEOC issued a decision in the Baldwin case concluding that sexual orientation discrimination is a form of sex discrimination, in part responding to the sex stereotype decisions in the lower federal courts.  And it was not until April 4 of this year that a federal appeals court, the Chicago-based 7th Circuit Court of Appeals, approved that theory in a strongly worded opinion by a decisive majority of the entire 11-judge circuit bench, just a few weeks after the 11th Circuit panel ruling in the Jameka Evans case.  Writing for the 7th Circuit in the Hively  case, Judge Diane Wood said, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”

The 11th Circuit panel’s 2-1 decision to reject Jameka Evans’ sexual orientation discrimination claim seemed a distinct setback in light of these developments.  However, consistent with the 11th Circuit’s prior gender identity discrimination ruling, one of the judges in the majority and the dissenting judge agreed that Evans’ Title VII claim could be revived using the sex stereotype theory based on how she dressed and behaved, and sent the case back to the lower court on that basis.  The dissenting judge would have gone further and allowed Evans’ sexual orientation discrimination claim to proceed under Title VII.  The other judge in the majority strained to distinguish this case from the circuit’s prior sex stereotype ruling, and would have dismissed the case outright.

The 7th Circuit’s decision in April opened up a split among the circuit courts in light of a string of rulings by several different circuit courts over the past several decades rejecting sexual orientation discrimination claims by gay litigants, although several of those circuits have since embraced the sex stereotype theory to allow gay litigants to bring sex discrimination claims under Title VII if they could plausibly allege that they suffered discrimination because of gender nonconforming dress or conduct.  Other courts took the position that as long as the plaintiff’s sexual orientation appeared to be the main reason why they suffered discrimination, they could not bring a Title VII claim.

In recent years, several federal trial judges have approved an alternative argument: that same-sex attraction is itself a departure from widely-held stereotypes of what it means to be a man or a woman, and thus that discrimination motivated by the victim’s same-sex attraction is a form of sex discrimination under Title VII.  Within the New York-based 2nd Circuit, several trial judges have recently embraced this view, but three-judge panels of the Court of Appeals consistently rejected it.  Some progress was made last spring, however, when a three-judge panel in Christiansen v. Omnicom Group overruled a trial judge to find that a plaintiff whose sexual orientation was clearly a motivation for his discharge could bring a sex stereotype Title VII claim when he could plausibly allege behavioral nonconformity apart from his same-sex attraction.

More recently, however, the 2nd Circuit agreed to grant en banc reconsideration to the underlying question and heard oral argument in September in Zarda v. Altitude Express on whether sexual orientation discrimination, as such, is outlawed by Title VII.  That case involved a gay male plaintiff whose attempt to rely alternatively on a sex stereotype claim had been rejected by the trial judge in line with 2nd Circuit precedent.  Plaintiff Donald Zarda died while the case was pending, but it is being carried on by his Estate.  Observers at the oral argument thought that a majority of the judges of the full circuit bench were likely to follow the lead of the 7th Circuit and expand the coverage of Title VII in the 2nd Circuit (which covers Connecticut, Vermont and New York).  With argument having been held more than two months ago, a decision could be imminent.

Much of the media comment about the Zarda case, as well as the questioning by the judges, focused on the spectacle of the federal government opposing itself in court.  The EEOC filed an amicus brief in support of the Zarda Estate, and sent an attorney to argue in favor of Title VII coverage.  The Justice Department filed a brief in support of the employer, and sent an attorney to argue that the three-judge panel had correctly rejected the plaintiff’s Title VII claim.  The politics of the situation was obvious: The Trump appointees now running the Justice Department had changed the Department’s position (over the reported protest of career professionals in the Department), while the holdover majority at the EEOC was standing firm by the decision that agency made in 2015.  As Trump’s appointment of new commissioners changes the agency’s political complexion, this internal split is likely to be resolved against Title VII protection for LGBT people.

This is clearly a hot controversy on a question with national import, so why did the Supreme Court refuse to hear the case?  The Court does not customarily announce its reasons for denying review, and did not do so this time.  None of the justices dissented from the denial of review, either.

A refusal to review a case is not a decision on the merits by the Court, and does not mean that the Court approves the 11th Circuit Court of Appeals’ decision.  It is merely a determination by the Court, which exercises tight control over its docket, not to review the case.  Hypothesizing a rationale, one might note that the plaintiff here has not suffered a final dismissal of her case, having been allowed by the 11th Circuit to file an amended complaint focusing on sex stereotype instead of sexual orientation, so she can still have her day in court and there is no pressing need for the Court to resolve the circuit split in her case.  One might also note that Georgia Regional Hospital did not even appear before the 11th Circuit to argue its side of the case, and did not file papers opposing Lambda Legal’s petition until requested to do so by the Court.

On October 11, the Supreme Court Clerk’s office distributed the Lambda petition and some amicus briefs supporting it to the justices in anticipation of their conference to be held October 27. The lack of a response by Georgia Regional Hospital evidently sparked concern from some of the justices, who directed the Clerk to ask the Hospital to file a response, which was filed by Georgia’s Attorney General on November 9, and the case was then put on the agenda for the Court’s December 8 conference, at which the decision was made to deny review.  The responsive papers argued, among other things, that the Hospital had not been properly served with the Complaint that initiated the lawsuit. Those kinds of procedural issues sometimes deter the Court from taking up a case.

For whatever reason, the Court has put off deciding this issue, most likely for the remainder of the current Term. The last argument day on the Court’s calendar is April 25, and the last day for announcing decisions is June 25.  Even if the 2nd Circuit promptly issues a decision in the Zarda case, the losing party would have a few months to file a petition for Supreme Court review, followed by a month for the winner filing papers responding to the Petition.  Even if the Court then grants a petition for review, thus starting the clock running for filing merits briefs and amicus briefs, it is highly likely that once all these papers are submitted, it will be too late in the Term for the case to be argued, so it would end up on the argument calendar for Fall 2018.

Which raises the further question of who would be on the Court when this issue is finally before it? Rumors of retirements are rife, and they center on the oldest justices, pro-LGBT Ruth Bader Ginsburg and conservative but generally pro-gay Anthony Kennedy.  If President Trump gets to nominate successors to either of them, the Court’s receptivity to gay rights arguments is likely to be adversely affected.

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U.S. Supreme Court Denies Petition to Review Texas Supreme Court Ruling in Houston Benefits Case

On December 4 the U.S. Supreme Court rejected without explanation a petition from the City of Houston seeking review of the Texas Supreme Court’s June 30 ruling in Pidgeon v. Turner, which had cast doubt on whether the City was obligated under Obergefell v. Hodges, the 2015 marriage equality ruling, to provide same-sex spouses of Houston employees the same employee benefits offered to different-sex spouses.

A decision by the Supreme Court to deny review of a case is not a ruling on the merits of the case. In this case, it most likely means that there were not at least four members of the Court, the number required under the Court’s rules to grant a petition for review, who thought the Court should intervene in a lawsuit that is ongoing in the state trial court.  The Court’s action should not be construed as a decision approving the Texas Supreme Court’s ruling.  It is consistent with the Court’s tight control of its docket, under which sharply limits the number and type of cases that it takes up for review and rarely inserts itself into a case that has not received a final disposition in the lower courts.

Retired Texas Supreme Court Justice Wallace B. Jefferson and his law firm, Alexander Dubose Jefferson & Townsend LLP, filed the petition on behalf of Mayor Sylvester Turner and the City of Houston on September 15, several weeks after Lambda Legal had filed a new federal district court lawsuit on behalf of some Houston employees whose same-sex spouses are receiving benefits and who fear losing them in the state court litigation. Lambda’s suit was quickly dismissed by the federal trial judge as not “ripe” for review because the plaintiffs are receiving their benefits and it was likely, in the judge’s view, that the state trial court would rule that the benefits were legal in light of the current state of the law.

The Texas Supreme Court’s June 30 decision, which reversed a ruling by the Texas Court of Appeals, was not a final disposition of that case, instead sending it back to the trial court in Harris County for a hearing on the original claim by plaintiffs Jack Pidgeon and Larry Hicks, Republican anti-gay activists, that the City had unlawfully extended employee benefits eligibility to same-sex spouses of City employees in 2013.

Pidgeon and Hick first started litigating against the City when then-Mayor Annise Parker extended benefits eligibility by executive action after receiving an opinion from the city attorney about the impact of the U.S. Supreme Court’s June 26, 2013, ruling, U.S. v. Windsor, which struck down part of the federal Defense of Marriage Act. Pidgeon and Hicks argued that under Texas statutory and constitutional law at the time, it was illegal for the City to extend the benefits, as the U.S. Supreme Court’s Windsor decision did not address the constitutionality of state laws banning same-sex marriage.

Pidgeon and Hicks had a plausible argument in 2013, enough to persuade the trial judge to issue a preliminary injunction against the City, which promptly appealed. The Court of Appeals sat on the appeal for a few years, waiting for the storm of marriage equality litigation in Texas and throughout the country to play out.  Less than a year after the Windsor decision, a federal trial judge in San Antonio ruled that the state’s ban on same-sex marriage was unconstitutional, but the state’s appeal languished in the 5th Circuit Court of Appeals until after the U.S. Supreme Court decided the Obergefell case on June 26, 2015.  A few days later the 5th Circuit affirmed the trial court’s ruling invalidating the Texas laws banning same-sex marriages.  Then the Texas Court of Appeals reversed the preliminary injunction, instructing the trial court to decide the case in accord with the 5th Circuit’s ruling.  The City then resumed providing the benefits, which it has continued to do.

Undaunted, Pidgeon and Hicks asked the Texas Supreme Court to review the Court of Appeals decision, arguing that the Court of Appeals erred by instructing the trial court to follow the 5th Circuit’s ruling because, as a technical matter, state courts are not bound by federal court of appeals rulings.  They argued, in effect, that the City was still bound to abide by the Texas state law banning recognition of same-sex marriages for purposes of public employee benefits, which had never been invalidated in the state courts and, they argued, was technically not declared unconstitutional by the U.S. Supreme Court, whose opinion in Obergefell only directly struck down state marriage bans in the states of the 6th Circuit, Ohio, Michigan, Kentucky, and Tennessee.

After lengthy deliberation, the Texas Supreme Court announced in September 2016 that it would not consider Pidgeon and Hicks’ appeal. This prompted a fervent campaign by Governor Greg Abbott and other elected officials to persuade the court to change its mind, stimulating thousands of Texans to flood the court with demands that it reverse the Court of Appeals decision.  The court ultimately bowed to this pressure, granted review, and issued its June 30 decision.

The Texas Supreme Court agreed that the Texas Court of Appeals should not have treated the 5th Circuit’s decision as binding on the trial court, and opined further that the Obergefell decision was just about whether same-sex couples could marry as a question of federal constitutional law, not what benefits they were entitled to if they married.  This was palpably wrong, as shown by another Supreme Court ruling, just days prior, in Pavan v. Smith, a case from Arkansas involving parental names on birth certificates, in which the Court made clear that married same-sex couples are entitled to the “full constellation of rights” that go with marriage under the Obergefell decision.

At present Pidgeon and Hicks’ lawsuit is still pending in the state trial court and the same-sex spouses of Houston employees are receiving their equal benefits, so it is likely that the Supreme Court justices saw no pressing reason to add this case to their docket. Perhaps they agree with the opinion by U.S. District Judge Vanessa D. Gilmore, who, in dismissing Lambda’s lawsuit, in predicted that the state trial court, being bound to follow U.S. Supreme Court precedent in Obergefell and Pavan, will ultimately reject the challenge to the benefits.

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British Appeals Court Affirms Residential Child Custody for Gay Male Couple in Contest with Gestational Surrogate

A unanimous three-judge panel of the England and Wales Court of Appeal issued a decision on November 17 affirming a ruling by Justice Lucy Theis of the High Court Family Division that a gay male couple should have residential custody of a child born as a result of an unenforceable gestational surrogacy agreement they had entered with a married woman who sought to keep the child. Between: H (A Child); Re H (Surrogacy Breakdown), [2017] EWCA Civ 1798 (Case No: B4/2-17/-0064/FAFMF (Nov. 17, 2017).  Although the appeal had been presented as “involving novel issues about the interface between the Human Fertilisation and Embryology Act 2008 and the Child Act 1989,” wrote Lord Justice Andrew McFarlane for the Court of Appeal, “on examination these issues fell away and the argument ultimately boiled down to the question of whether the Judge erred on her evaluation of the evidence.”

A and B, the gay couple, entered into a surrogacy agreement with C and D, a “heterosexual married couple” who had five children. C, the wife, had been a gestational surrogate twice before.  The parties had met on-line in April 2015, and signed the surrogacy agreement in August of that year.  C and A traveled to a clinic in Cyprus, where A’s sperm was used to fertilize a donated egg, which was then implanted in C.  Thus, C would have no genetic relationship to the child.

The relationship between the parties deteriorated during the pregnancy, to the point where communication between them had ceased in March 2016. According to the opinion by Family Court Justice Theis, “At some point in late March 2016, C and D sought legal advice and decided that they were not going to hand over the child to A and B, as had been agreed between the parties as recorded in the agreement they signed in August 2015.  At this time, A and B were seeking to establish contact with C, but with no response.”  C gave birth to H in late April.  Due to difficulties with the birth and aftermath, she and the child remained in the hospital until May 6.

The day before the birth, C and D’s then-lawyer wrote to A and B, telling them that C and D were not prepared to follow the surrogacy agreement and would not be giving their consent to a parental order on behalf of A, the child’s biological father. Although correspondence between the attorneys occurred for ten days following H’s birth, A and C were not informed of the birth until May 10, by which time C and D had already registered the birth with the name they had chosen rather than that chosen by A and B.  A and B then filed suit, which resulted in arrangements being made for them to have contact with the child, which ultimately became a “shared care arrangement” up to the time of the hearing in Family Court.

Justice Theis appointed a Guardian for the child in the context of the hearings and hear testimony from all parties. Because C and D were not willing to cooperate with a parental order, they are considered the legal parents of H, as birth mother and her spouse at the time of the birth.  Surrogacy agreements are not enforceable under English law.  The intended father cannot obtain a parental order designating him as the legal parent in such a case without the cooperation of the birth mother and her spouse, if any.  The main question for the court was whether the child should reside with C and D, or with A and B, in light of the history of the child’s conception and the subsequent bonding through the shared care arrangement, and A’s claims as a biological parent.

C and D’s lawyer argued that “as a matter of law, C and D had a right ‘to change their minds and keep H.’,” wrote Lord Justice McFarlane. “It is undoubtedly correct that a surrogate mother has the right to change her mind,” he wrote, but noted that the lawyer “wisely withdrew from the submission that such a mother also had the right to have her own way about where the child should live.  She was also forced to concede that, while the six week ‘cooling off’ period protects a mother in relation to the important issue of consent to a parental order, it tells one nothing about what the best welfare arrangements for the child will be after birth.  That will depend on the circumstances, which will include, in addition to the factors in the [Child Act] 1989, sec. 1(3) checklist, the child’s gestational and legal parentage, his or her genetic relationships and the manner in which the intended surrogacy came about.”

The Guardian appointed for the child testified that A and B were better placed to meet “the more complex emotional needs of a child born in these circumstances” than were C and D. On this issue, it appeared that A and B were open to allowing H to have a relationship with C and D, but C and D were not disposed to encourage a relationship with A and B.  Both couples were seen as capable of meeting the child’s “ordinary physical, emotional and educational needs.”  The Guardian recommended that H should live with A and B and have visiting contact with C and D, ultimately recommending that such contact should take place six times a year until the child’s 2nd birthday, subject to being increased at that time depending how the relationship developed.

Judge Theis accepted this recommendation, finding that it was best for H to live with A and B, with the recommended visiting schedule for C and D. As described by Lord Justice McFarlane, “The Judge therefore concluded that it would be best for H to live with A and B because (1) H’s identity needs as a child of gay intended parents would be best met by living with a genetic parent, (2) A and B could meet H’s day-to-day needs in an attuned way, (3) A and B were best bale to promote the relationship with C and D, having remained positive about their significance despite the difficulties, and (4) C and D were unlikely to significantly change their views about A and B.”

The Court of Appeal rejected C and D’s argument that placing the child with A and B was “equivalent to the making of a parental order,” pointing out that such an order “leaves the surrogate with no rights, and no right to apply to court. It would not provide for ongoing contact.”  Justice McFarlane observed that Justice Theis had explicitly recognized the ongoing role of C and D as legal parents of H.  He also rejected the argument that the Family Court was “obliged to strive to provide H with two homes and four functioning parents,” since it was “obvious that it was not likely to be in H’s interests to have more than one secure home base, and one couple who could be clearly identified as parents.”  The court rejected any argument that the Family Court’s decision was “punitive to C and D” for having abrogated the surrogacy agreement and behaved poorly towards A and B, finding that the judge’s concern was “relating less to what had happened in the past and more to the respective couples’ ability to respond,” and that she had repeatedly “acknowledged the love that all four adults felt for the child, but she was clear that one of the couples was better placed than the other to negotiate the challenges of the future.”

The Court of Appeal concluded its opinion with observations on two matters. “Firstly, we note that surrogacy is a complex area, ethically and legally, and that there are no internationally agreed norms,” wrote Justice McFarlane, endorsing Justice Theis’s observation that it would be desirable for the government to enact “a properly supported and regulated framework to underpin arrangements of this kind.”  The lack of any legal status for surrogacy agreements is a continuing source of difficulties, since the legal template for dealing with custody disputes between divorcing parents does not easily fit the situation when surrogacy arrangements break down during pregnancy.  And, the court devoted a final paragraph about A and B having “most unwisely and unaccountably” resorted to social media to discuss their situation, as to which the court “made an order restraining A and B from generating further publicity about this matter.”  Preserving confidentiality in contested custody cases is generally deemed to be in the best interest of the child.

The end result, which brought some startled comment from the gay press in the U.K., is that the surrogate, who has no genetic relationship to the child, continues, together with her husband, as legal parents, while the child will live with A and B as, in effect, de facto parents. The surrogate and her husband will have continuing contact with the child through the visitation order and, still to be sorted out in full, there may be some restrictions on where and when A and B can travel with the child outside the country.  The court’s call for the government to establish an appropriate statutory legal framework to govern such situations is heartfelt.

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Pennsylvania District Judge Refuses to Dismiss Transgender Student’s Title IX and Equal Protection Claims

U.S. District Judge Robert D. Mariani denied a school district’s motion to dismiss Title IX and Equal Protection claims by a transgender elementary school student in A.H. v. Minersville Area School District, 2017 U.S. Dist. LEXIS 193622, 2017 WL 5632662 (M.D. Pa., Nov. 22, 2017).  The court rejected the school district’s argument that in light of the Trump Administration’s “withdrawal” of a Guidance issued by the Obama Administration on protection for transgender students under Title IX, the complaint failed to state a valid claim.

A.H., the eight-year-old plaintiff (whose suit was brought by “her next best friend and mother, Tracey Handling”), classified male at birth, “was diagnosed with gender dysphoria while in kindergarten,” wrote Judge Mariani, explaining, “Under the care of a pediatric psychologist, Plaintiff and her family have been exploring ways for Plaintiff to express her gender identity at home, in school, and in the community. . . Since beginning kindergarten in 2014, Plaintiff has continuously presented herself both in and out of school as a female.  Plaintiff uses a female name, dresses in clothing traditionally associated with females, is addressed using female pronouns, and is known to her classmates as a female student.”  Even though A.H.’s mother, supportive of her daughter’s needs, asked that she be allowed to use the girls’ bathroom in school, the School Superintendent, Carl McBreen, said they would not allow it in order to protect the privacy of other students.

This was not a problem during kindergarten, since the kindergarten classroom has a single-use bathroom used by all the students, and the only adverse problem during A.H.’s kindergarten year came during a field trip, when teachers required A.H. to wait until all the boys had used a male-designated bathroom and then allowed A.H. to use that bathroom. “The incident upset Plaintiff and resulted in some of her classmates asking her why she, as a girl, was using the boys’ bathroom.”  A.H.’s mother questioned the principal about this.  His response was that it was “school policy that a child must use the bathroom that corresponds with the sex listed on the child’s birth certificate,” and talked about “protecting” the other students from A.H.  However, despite repeated requests, the school never showed A.H.’s mother an actual written policy.  Her request to allow A.H. to use girls’ bathrooms during A.H.’s first grade year was turned down, with Superintendent McBreen stating that “Minersville isn’t ready for this.”  While giving a school tour to Mrs. Handling, the principal referred to A.H. using male pronouns, even after she corrected him.

After the Obama Administration Guidance was distributed to all public school districts, Superintendent Breen informed Mrs. Handling that her daughter could use the girls’ restrooms at school, but the school “has not created any policy on bathroom access for transgender students.” A.H. filed suit seeking a court order to comply with Title IX and Equal Protection requirements.

In its motion to dismiss the Title IX claim, the school first argued that the Trump Administration’s withdrawal of the Obama Administration Guidance left “no legal basis to support a Title IX claim against the school district for transgender discrimination.” After concisely relating the sequence of events surrounding the Obama Administration Guidance and the Trump Administration withdrawal, Judge Mariani, quoting from Evancho v. Pine-Richland School District, 237 F. Supp. 3d 267 (W.D. Pa. 2017), noted that “The 2017 [Trump Administration] Guidance ‘did not propound any “new” or different interpretation of Title IX or [DOE’s restroom regulation], nor did the 2017 Guidance affirmatively contradict the 2015 and 2016 Guidance documents.”  Indeed, the Evancho court had observed, the 2017 Guidance “appears to have generated an interpretive vacuum pending further consideration by those federal agencies of the legal issues involved in such matters.”

“Thus,” wrote Judge Mariani, “the fact that the Department of Justice and the Department of Education withdrew their interpretation of Title IX does not necessarily mean that a school, consistent with Title IX, may prohibit transgender students from accessing the bathrooms that are consistent with their gender identity. Instead, it simply means that the 2016 Guidance cannot form the basis of a Title IX claim.”  Lacking a binding precedent on this issue from the U.S. Supreme Court or the 3rd Circuit Court of Appeals (which has jurisdiction over federal courts in Pennsylvania), Judge Mariani looked to the 7th Circuit’s decision in Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017), as well as the earlier decision from the Western District of Pennsylvania court in Evancho.  He observed that Title IX courts have looked to precedents under Title VII of the Civil Rights Act for guidance in determining the scope of protection under law banning discrimination because of sex, and that both the 7th Circuit and the Evancho court, following such precedents, had concluded, in the words of the 7th Circuit, that “a policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”  The 7th Circuit specifically rejected the argument that providing access to a gender-neutral single user restroom is “sufficient to relieve the School District from liability, as it is the policy itself which violates the Act.”  Similarly, the Evancho court, while noting that the law on this issue was currently “clouded with uncertainty,” determined that the transgender student plaintiffs in that case had “made a more than sufficient ‘showing’ in their Complaint of a right to relief under” Title IX.

Mariani pointed out that the Minersville school district had not attempted in its motion to distinguish these precedents or “present any arguments as to why this Court should not follow their holdings. The Court, further, sees no reason why the analysis and holdings of either Evancho or Whitaker are unsound when applied to the facts of this case.”  Mariani concluded, “Contrary to Defendant’s argument, a specific practice need not be identified as unlawful by the government before a plaintiff may bring a claim under Title IX . . .  Further, while the Court recognizes that the Amended Complaint seems to indicate that Plaintiff now has access to the girl’s bathroom at school and thus may not have alleged any continuing violation of Title IX, that does not undercut the fact that Plaintiff has adequately pleaded that a violation of Title IX occurred as some point in time.”  The judge also rejected the school’s argument that it did not, as a matter of law, have any “discriminatory intent” when it acted.  First, he pointed out, discriminatory intent was not a prerequisite to getting injunctive relief, just damages.  And, in any case, statements attributed to school officials could provide a basis for finding discriminatory intent.

Turning to the Equal Protection claim under the 14th Amendment, Judge Mariani found agreement of the parties that heightened scrutiny would apply to judicial review of the school’s alleged policy and its actions.  As to that standard, which requires the defendant to show that the challenged policy serve an important government objective, Judge Mariani found an absence of proof by the school district.  “Here,” he wrote, “Defendant does not advance any important objective that its bathroom policy served.  Instead, Defendant reiterates its argument that, in the absence of guidance from the government, Defendant made all reasonable efforts to accommodate Plaintiff,” but this argument fails.  “Plaintiff has adequately alleged the existence of a school policy that treated her differently on the basis of her transgender status or nonconformity to gender stereotypes.  As such, she has sufficiently stated a claim for relief under the Equal Protection Clause.”  As constitutional discrimination claims require a showing of discriminatory intent, the judge pointed to statements by school officials that adequately serve at this stage of the case as evidence of discriminatory intent.  Judge Mariani noted the similar rulings in Whitaker and Evancho, while also noting a contrary ruling from several years ago by a different district judge in the Western District of Pennsylvania, Johnston v. University of Pittsburgh, 97 F. Supp. 3d 657 (W.D. Pa. 2015), which for some reason the school district never even cited in support of its motion – perhaps because that opinion is somewhat of an embarrassment.

Judge Mariani was appointed to the court by President Barack Obama in 2011.

A.H. and her mother are represented by David L. Deratzian of Hahalis & Kounoupis PC in Bethlehem, Pennsylvania.

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