New York Law School

Art Leonard Observations

Federal Court Issues Nationwide Injunction to Stop Federal Enforcement of Title IX in Gender Identity Cases

A federal district judge in Wichita Falls, Texas, has issued a “nationwide preliminary injunction” against the Obama Administration’s enforcement of Title IX of the Education Amendments Act to require schools to allow transgender students to use restroom facilities consistent with their gender identity. Judge Reed O’Connor’s August 22 ruling, State of Texas v. United States of America, Civ. Action No. 7:16-cv-00054-O (N.D. Texas), is directed specifically at a “Dear Colleague” letter dated May 13, 2016, which the Department of Justice (DOJ) and Department of Education (DOE) jointly sent to all the nation’s schools subject to Title IX, advising them of how the government was now interpreting federal statutes forbidding discrimination “because of sex.”  The letter advised recipients that failure to allow transgender students’ access to facilities consistent with their gender identity would violate Title IX, endangering their eligibility for funding from the DOE.

The May 13 letter was sent out shortly after the U.S. Court of Appeals for the 4th Circuit, based in Richmond, had ruled in April that this interpretation by the Administration, previously stated in filings in a Virginia lawsuit, should be deferred to by the federal courts.  G.G. v. Gloucester County School Board, 822 F.3d 709.    That lawsuit is about the right of Gavin Grimm, a transgender boy, to use boys’ restroom facilities at his Gloucester County, Virginia, high school.  The ACLU had filed the case on Grimm’s behalf after the school district adopted a rule forbidding students from using single-sex-designated facilities inconsistent with their “biological sex” as identified on their birth certificates, a rule similar to that adopted by North Carolina in its notorious H.B.2, which is itself now the subject of several lawsuits in the federal district courts in that state.  After the 4th Circuit ruled, the federal district judge hearing that case, Robert Doumar, issued a preliminary injunction requiring that Grimm be allowed access to the boys’ restrooms while the case is pending, and both Judge Doumar and the 4th Circuit Court of Appeals refused to stay that injunction.  However, the U.S. Supreme Court voted 5-3 to grant the school district’s request for a stay on August 3.  Judge O’Connor prominently mentioned the Supreme Court’s action in his opinion as helping to justify issuing his preliminary injunction, commenting that the case presents a question that the Supreme Court may be resolving this term.

Underlying this and related lawsuits is the Obama Administration’s determination that federal laws banning sex discrimination should be broadly interpreted to ban discrimination because of gender identity or sexual orientation. The Administration adopted this position officially in a series of rulings by the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the workplace.  This interpretation was in line with prior decisions by several federal circuit courts, ruling in cases that had been brought by individual transgender plaintiffs to challenge discrimination under the Violence against Women Act (VAWA), the Fair Credit Act (FCA), and Title VII.  These are all “remedial statutes” that traditionally should receive a liberal interpretation in order to achieve the policy goal of eliminating discrimination because of sex in areas subject to federal legislation.  Although the EEOC and other federal agencies had rejected this broad interpretation repeatedly from the 1960s onward, transgender people began to make progress in the courts after the Supreme Court ruled in 1989 that sex-stereotyping by employers – disadvantaging employees because of their failure to comply with the employer’s stereotyped view of how men and women should act, groom and dress – could be considered evidence of sex discrimination, in the case of Price Waterhouse v. Hopkins.  While some of these courts continue to reject the view that gender identity discrimination, as such, is automatically illegal under these statutes, they have applied the sex-stereotype theory to uphold lawsuits by individual transgender plaintiffs, especially those who are discharged in response to their announcement that they will be transitioning or when they begin their transition process by dressing in their desired gender.

The Education Department built on this growing body of court rulings, as well as on the EEOC’s rulings, when it became involved in cases where transgender students were litigating over restroom and locker room access. DOE first expressed this view formally in a letter it sent in connection with a lawsuit against an Illinois school district, participated in negotiating a settlement in that case under which the school district opened up restroom access, and then began to take a more active approach as more lawsuits emerged.  By earlier this year DOE and DOJ were ready to push the issue nationwide after the 4th Circuit’s ruling marked the first federal appellate acceptance of the argument that this was a reasonable interpretation of the existing regulation that allows school districts to provide separate facilities for boys and girls, so long as the facilities are comparable.  DOE/DOJ argue that because the regulation does not specifically state how to resolve access issues for transgender students, it is ambiguous on the point and thus susceptible to a reasonable interpretation that is consistent with the EEOC’s position on workplace discrimination and the rulings that have emerged from the federal courts under other sex discrimination statutes.  Under a Supreme Court precedent, agency interpretations of ambiguous regulations should receive deference from the courts if those interpretations are reasonable.

The May 13 letter provoked consternation among officials in many states, most prominently Texas, where Attorney General Ken Paxton took the lead in forming a coalition of about a dozen states to file this joint lawsuit challenging the DOE/DOJ position. Paxton aimed to bring the case in the federal court in Wichita Falls before Judge O’Connor, an appointee of George W. Bush who had previously issued a nationwide injunction against the Obama Administration’s policy of deferring deportation of undocumented residents without criminal records and had also ruled to block an Obama Administration interpretation of the Family and Medical Leave Act favoring family leave for gay employees to care for same-sex partners.  Paxton found a small school district in north Texas, Harrold Independent School District, which did not have any transgender students but nonetheless adopted a restrictive restroom access policy, to be a co-plaintiff in the case in order justify filing it in the Wichita Falls court.  Shortly after Paxton filed this case, Nebraska Attorney General Doug Peterson put together another coalition of nine states to file a similar lawsuit in the federal district court in Nebraska early in July.

These cases rely heavily on an argument that was first proposed by Alliance Defending Freedom (ADF), the anti-gay “Christian” public interest law firm, in a lawsuit it brought in May on behalf of some parents and students challenging the settlement of the Illinois case, and a “copycat” lawsuit filed by ADF in North Carolina. The plaintiffs argue that the DOE/DOJ position is not merely an “interpretation” of existing statutory and regulatory requirements under Title IX, but rather is a new “legislative rule,” imposing legal obligations and liabilities on school districts.  As such, they argue, it cannot simply be adopted in a “guidance” or “letter” but must go through the formal process for adopting new regulations under the Administrative Procedure Act. This would require the publication of the proposed rule in the Federal Register, after which interested parties could submit written comments, perhaps one or more public hearings being held around the country to receive more feedback from interested parties, and then publication of a final rule, which would be subject to judicial review in a case filed in a U.S. Court of Appeals.  (This is referred to as the “notice and comment” process.) Neither DOE nor any other agency that has adopted this new interpretation of “sex discrimination” has gone through this administrative rulemaking process.  Additionally, of course, the plaintiffs contend that this new rule is not a legitimate interpretation of Title IX, because Congress did not contemplate this application of the law when it was enacted in the 1970s.

In his August 22 ruling, O’Connor concluded that the plaintiffs met their burden to show that they would likely succeed on the merits of their claim, a necessary finding to support a preliminary injunction. As part of this ruling, he rejected the 4th Circuit’s conclusion that the existing statute and regulations are ambiguous and thus subject to administrative interpretation.  He found it clear based on legislative history that Congress was not contemplating outlawing gender identity discrimination when it passed sex discrimination laws, and that the existing regulation allowing schools to provide separate facilities for boys and girls was intended to protect student privacy against being exposed in circumstances of undress to students of the opposite sex.  In the absence of ambiguity, he found, existing precedents do not require the courts to defer to the agency’s interpretation.  He found that the other prerequisites for injunctive relief had been met, because he concluded that if the enforcement was not enjoined, school districts would be put to the burden of either changing their facilities access policies or potentially losing federal money.  He rejected the government’s argument that the lack of any imminent enforcement activity in the plaintiff states made this purely hypothetical.  After all, the federal government has affirmatively sued North Carolina to enjoin enforcement of the facilities access restrictions in H.B.2.

Much of O’Connor’s decision focuses on the question whether the plaintiffs had standing to challenge the DOE/DOJ guidance in a district court proceeding and whether the court had jurisdiction over the challenge. He found support for his ruling on these points in a recent decision by the 5th Circuit Court of Appeals (which has appellate jurisdiction over cases from Texas) in a lawsuit that Texas brought against the EEOC, challenging a “guidance” about employer consideration of applicant arrest records in deciding whether to hire people.  Texas v. EEOC, 2016 WL 3524242.  Noting disparate enforcement of criminal laws against people of color, the EEOC took the position that reliance on arrest records has a disparate impact on people of color and thus potentially violates Title VII.  A 5th Circuit panel divided 2-1 in determining that the state had standing to maintain the lawsuit and that the district court had jurisdiction to rule on the case.   This suggests the likelihood that the Administration may have difficulty persuading the 5th Circuit to overrule O’Connor’s preliminary injunction on procedural grounds if it seeks to appeal the August 22 ruling.

The Administration argued in this case that any preliminary injunction by O’Connor should be narrowed geographically to the states in the 5th Circuit, even though co-plaintiffs included states in several other circuits, but O’Connor rejected this argument, agreeing with the plaintiffs that the injunction should be nationwide.  He emphasized the regulation allowing schools to have sex-segregated restroom facilities.  “As the separate facilities provision in Section 106.33 is permissive,” he wrote, “states that authorize schools to define sex to include gender identity for purposes of providing separate restrooms, locker rooms, showers, and other intimate facilities will not be impacted” by the injunction.  “Those states who do not want to be covered by this injunction can easily avoid doing so by state law that recognized the permissive nature” of the regulation.  “It therefore only applies to those states whose laws direct separation.  However, an injunction should not unnecessarily interfere with litigation currently pending before other federal courts on this subject regardless of state law.  As such, the parties should file a pleading describing those cases so the Court can appropriately narrow the scope if appropriate.”  This reference is directed mainly to the plethora of lawsuits pending in North Carolina, in which the federal government is contending that H.B.2 violates Title IX and Title VII.

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Denial of Refuge to Jamaican Who Claims to Be Bisexual Sparks Disagreement on 7th Circuit Panel

By a 2-1 vote, a panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit affirmed a decision by the Board of Immigration Appeals (BIA) to deny relief under the Convention Against Torture to a Jamaican man who claims to be bisexual.  [Petitioner] v. Lynch, 2016 WL 4376516, 2016 U.S. App. LEXIS 15127 (August 17, 2016).  The majority of the panel, in an opinion by Judge Diane Pamela Wood, found that under the deferential standard for reviewing administrative decisions in the immigration system, the evidentiary record that led the Immigration Judge to conclude that the petitioner had failed to prove he was bisexual did not compel a contrary conclusion and so could not be overturned.

Dissenting, Judge Richard Posner contended that the Immigration Judge had “fastened on what are unquestionable, but trivial and indeed irrelevant, mistakes or falsehoods in [petitioner’s] testimony,” and, furthermore, “The weakest part of the immigration judge’s opinion is its conclusion that [petitioner] is not bisexual, a conclusion premised on the fact that he’s had sexual relations with women (including a marriage). Apparently the immigration judge does not know the meaning of bisexual.  The fact that he refused even to believe there is hostility to bisexuals in Jamaica suggests a closed mind and gravely undermines his critical finding that [petitioner] is not bisexual.”

According to Judge Wood’s decision summarizing the record in the case, the petitioner, who was born and grew up in Jamaica, claims to have begun having sex with both men and women while a teenager. He fell in love with an American woman visiting Jamaica and they married and moved to the U.S., where she sponsored him for resident status.  However, the marriage didn’t last and their failure to attend a required interview with immigration officials resulted in termination of his status, after which they divorced.  Around the same time, he pled guilty to an attempted criminal sexual assault charge, was sentenced to probation, violated his probation and was resentenced to prison time.  After his release from prison, he was swooped up by Homeland Security and processed for deportation.  In the course of those proceedings, he raised the horrendous conditions for gay and bi people in Jamaica, seeking protection under the Convention Against Torture (CAT).

The Immigration Judge concluded that his criminal record prevented granting him withholding of removal, and most of the attention in the case focused on the CAT claim. A person who is otherwise deportable may win relief under the CAT by showing that they would likely be subjected to torture or serious harm at the hands of the government or those the government is unable to control.  While numerous sources, including State Department Human Rights reports from 2012 and 2013, document the fierce homophobia in Jamaica and the failure of the government to address it effectively, the BIA continues to dither about whether LGBT refugees from Jamaica are entitled to CAT relief.  The U.S. Court of Appeals for the 2nd Circuit recently remanded another Jamaican case to the BIA for reconsideration in light of this information.

In this case, the IJ, following the BIA line, rejected the claim, but most of the attention was focused on the credibility of petitioner’s claim to be bisexual and that he would be known as such in Jamaica and thus likely to encounter serious harm there. The IJ focused on the numerous inconsistencies in his testimony about his experiences in Jamaica, in which he mixed up dates, places, and names to such an extent that the IJ found his claims to be not credible.  The IJ rejected the submission of letters from various people attesting to his bisexuality (including two letters signed by former boyfriends now living in other states), doubting their validity.

The BIA “found no clear error in the IJ’s findings that [petitioner] ‘did not credibly testify and did not establish that he has ever been bisexual.’,” wrote Judge Wood, “And because [petitioner] had not established that he was bisexual or that he would be perceived in Jamaica as bisexual – the basis of his purported fear of torture – he had not met his burden of proof under the CAT.”

In refusing to upset this ruling, the majority of the 7th Circuit panel focused on its limited authority to review factual findings by an IJ, stating that the question is “whether the facts compel a conclusion contrary to the one that the IJ reached.  While we might wish it were otherwise, there is no exception under which plenary review is available for factual questions of enormous consequence, as this one is for [petitioner].”

“We are not insensible to the fact that immigration judges sometimes make mistakes, and that the costs of such errors can be terrible,” wrote Wood. “A mistaken denial of asylum can be fatal to the person sent back to a country where persecution on account of a protected characteristic occurs; a mistaken denial of deferral of removal under the Torture Convention can have ghastly consequences.  If we could balance the magnitude of the risk times the probability of its occurrence against the cost of offering a few additional procedures, or a few more years in the United States, we would.”

While admitting that this result is harsh, Judge Wood dangled hope that if the petitioner could come up with more credible evidence, he might be able to persuade the IJ to grant a motion to reopen his case.

This did not satisfy Judge Posner, who really ripped into the majority in his dissenting opinion. Posner pointed out that the merits of the petitioner’s claim “depend on how two issues are resolved: whether [petitioner] is bisexual and whether bisexuals are persecuted in Jamaica.  The rejection of the second point by the Immigration Judge, upheld by the Board of Immigration Appeals, is cursory and unconvincing; but if he isn’t bisexual the error is harmless.  But the rejection of his claim to be bisexual is also unconvincing.  The immigration judge emphasized such things as [his] lack of detailed recollection of events that go back as far as 1983 and a supposed lack of ‘proof’ of bisexuality.  Well, even members of this panel have forgotten a lot of 33-year-old details.  And how exactly does one prove that he (or she) is bisexual?  Persuade all one’s male sex partners to testify, to write letters, etc.?  No, because most Jamaican homosexuals are not going to go public with their homosexuality given the vicious Jamaican discrimination against lesbian, gay, bisexual, and transgender (“LGBT”) persons, which is undeniable….”

Posner recited at some length information easily available on-line and from the State Department, and asserted that the immigration judge’s opinion “is oblivious to these facts.” He pointed out that the court’s opinion “does not explain” how many of the consistencies of testimony “could have any bearing on the question of [his] sexual orientation.”  Posner ripped to shreds the IJ’s rationale for rejecting the various letters offered by the petitioner, including those from his ex-lovers, and criticized the immigration judge for failing to ask a psychologist to provide input on the question.  “Immigration judges are authorized to do this,” he wrote, “authorized to select and consult, which they may and usually do on the phone, an expert with expertise relevant to the case at hand.”

Most tellingly, however, wrote Posner, “Nor had any reason been given, either by the immigration judge or by the majority opinion in this court, why if [petitioner] is not bisexual he would claim to be in an effort to remain in the United States, knowing that if he failed in this effort to remain he would be in grave danger of persecution when having lost his case he was shipped off to Jamaica. No doubt once back in Jamaica he could deny being bisexual – but no one who was either familiar with this litigation, or had been one of his persecutors before he left Jamaica for the United States, would believe (or at least admit to believing) his denial.”

Posner also threw in his insight that “homosexuals are often antipathetic to bisexuals,” for which he cited some articles from the internet. Posner seems to be an avid googler, judging by his on-line references in this and other cases.  “This is not to say that they would be likely to attack [petitioner] physically when he returned to Jamaica, but they might well talk about his return to the island – the return of a bisexual – and some of the persons to whom they talked might well be heterosexual and want to harm [him] physically.  Word is likely to spread quickly in an island of fewer than three million inhabitants.”  Posner’s parting shot, as noted above, was to suggest that the IJ was ignorant about bisexuality and had a “closed mind” on the subject.

At this point, the petitioner, who has been representing himself without a lawyer (and thus, statistically, never had a particularly good chance of winning his case), likely faces imminent deportation. We have withheld his name in this account of the case to avoid spreading it on the internet and exposing him to further potential harm.

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Funeral Home Wins Summary Judgment Motion in Transgender Discrimination Case with RFRA Defense

U.S. District Judge Sean F. Cox ruled on August 18 that a funeral home that discharged a transgender funeral director because of her intention to dress according to the employer’s dress code for women was not liable for sex discrimination under Title VII of the Civil Rights Act of 1964. The ruling, granting the employer’s motion for summary judgment, stemmed from the court’s conclusion that the employer prevailed on a religious free exercise defense raised under the federal Religious Freedom Restoration Act (RFRA), because the plaintiff in the case, the Equal Employment Opportunity Commission (EEOC), a federal agency that enforces Title VII, had failed to show that requiring the employer to allow the employee to use the approved female outfit was the “least restrictive alternative” to achieve the government’s compelling interest in preventing sex stereotyping discrimination in the workplace.  The case is EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 2016 U.S. Dist. LEXIS 109716, 2016 WL 4396083 (E.D. Mich.).

Importantly, Judge Cox made clear in his opinion that had the employee, Amiee Stephens, sued the funeral home on her own behalf, the funeral home would not have been able to raise the RFRA religious freedom defense, and she would most likely have won her Title VII case. Within the 6th Circuit (the states of Michigan, Ohio, Kentucky and Tennessee), the controlling circuit precedent states that a RFRA defense may only be raised in a case where “the government” is either the plaintiff or the defendant.

There are similar controlling precedents in the 7th and 9th Circuits, according to the opinion in the 6th Circuit case on which Judge Cox relied, General Conference of Seventh-Day Adventists v. McGill, 617 F.3d 402 (2010).  In the 2nd Circuit, which includes New York, there is a contrary precedent by a three- judge panel which has been questioned by a different three-judge panel, so the issue is a bit muddled.  The Supreme Court has never made clear whether RFRA is so limited in employment discrimination cases, but in the Hobby Lobby v. Burwell case, in which the Court ruled that business corporations may claim protection from government actions under RFRA, Justice Samuel Alito wrote for the Court in dicta (non-precedential language) that an employer would not be able to rely on RFRA to defend against a Title VII race discrimination charge.  He made this statement in response to Justice Ruth Bader Ginsberg’s statement in her dissent that the majority’s approach would endanger the enforcement of Title VII and other anti-discrimination laws.  Alito’s statement did not mention any distinction between cases brought by the EEOC and cases brought by individual employees.

Aimee Stephens – then known as Anthony Stephens – was hired by the Harris Funeral Home in October 2007. Stephens was identified as male on the Funeral Home’s employment records.  Stephens worked as a funeral director and embalmer for nearly six years under that name.  On July 31, 2013, Stephens sent a letter to her boss, Thomas Rost (who owns over 90% of the stock in Harris Funeral Homes, Inc.) and to her co-workers, telling them about her female gender identity and her determination to transition.  She wrote, “The first step I must take is to live and work full-time as a woman for one year.  At the end of my vacation on August 26, 2013, I will return to work as my true self, Amiee Australia Stephens, in appropriate business attire.”  Stephens stated in the letter that eventually she would be undergoing “sex reassignment surgery.”

The Funeral Home has a dress code specifying dark suits for men and “a suit or plain conservative dress” for women. In the letter, of course, Stephens indicated that she would wear “appropriate business attire” as a woman.  In response to the letter, Rost fired Stephens on August 15, telling her, according to his deposition testimony, “Anthony, this is not going to work out.  And that your services would no longer be needed here.”  Stephens testified that her understanding was that the way she proposed to dress was the immediate issue leading to her discharge.  (In his opinion, Judge Cox pointed out that there was no discussion in the depositions about other aspects of Stephens’ proposed appearance, such as grooming or hair style.)

Stephens filed a sex discrimination charge with the EEOC, alleging that she was fired due to her sex and gender identity. After investigating the charge, the EEOC concluded that there was “reasonable cause” to believe that Stephens’ “allegations are true.”  The EEOC also concluded, as a result of its investigation, that the Funeral Home was discriminating against its female employees because it provided appropriate suits and ties for male employees but required female employees to assume all expenses of complying with the dress code.

After the EEOC concludes an investigation resulting in a finding of “probable cause” without any kind of settlement being achieved, the case can go in either of two directions. The agency can decide to initiate a lawsuit against the employer, or it can notify the employee, in a “right to sue” letter, that the agency will not be bringing a lawsuit but that the employee may do so directly.  In 2014 the EEOC had begun an effort to establish that gender identity claims can be litigated under Title VII, and chose this as one of its first cases for direct litigation, so the EEOC filed suit in the U.S. District Court for the Eastern District of Michigan on September 25, 2014.

As expected, the Funeral Home filed a motion to dismiss the case, claiming that gender identity discrimination claims are not covered under Title VII. Responding to the motion, Judge Cox agreed with the Funeral Home that gender identity discrimination claims are not covered, as such, but refused to dismiss the Title VII claim, finding that it was covered by 6th Circuit precedents involving transgender public employees who sued on a theory of “sex stereotyping,” derived from a Supreme Court decision called Price Waterhouse v. Hopkins.

The EEOC’s complaint had presented the court with alternative theories in this case, including sex-stereotyping. If an employer discharges an employee for failing to conform to the employer’s stereotyped views as to how employees of a particular sex should dress, that may violate the ban on sex discrimination unless the employer can prove that dressing in a particular way is a bona fide occupational qualification necessary to perform the essential functions of the job.  Such potential employer defenses are generally irrelevant in deciding a motion to dismiss a claim, which is based entirely on whether the allegations in the plaintiff’s complaint are sufficient to “state a claim” under the statute, so Cox’s decision denying the motion to dismiss did not address this potential defense.  The Funeral Home did not mention any religious freedom claim under RFRA in its motion to dismiss, either, and it would have been irrelevant at that point.

After the motion to dismiss was denied, the case proceeded to discovery, during which the attorneys conducted depositions of the parties.  After discovery, the EEOC and the Funeral Home filed motions for summary judgment, contending that there were no contested facts requiring trial and the court could rule as a matter of law.   After the Funeral Home had lost its motion to dismiss, the Funeral Home got new legal representation from the Alliance Defending Freedom (ADF), a so-called Christian public interest law firm, which raised for the first time the claim that the Funeral Home was privileged to discharge Stephens regardless of Title VII because Mr. Rost’s objection to her proposed mode of dress was based on his religious views against transgender status.

Rost asserted his belief that gender and biological sex are created by God and immutable. During discovery ADF presented evidence, not questioned by the EEOC, that this was Rost’s sincere religious belief and, furthermore, that he had consistently expressed that he sought to operate this family-owned corporate business in line with his religious beliefs.  There is relevant language about this on the Funeral Home’s website and in its literature.

Judge Cox’s August 18 ruling was presented in three parts. In the first, he found that the Funeral Home had violated Title VII by discharging Stephens over the anticipated dress code violation.  In the view of Rost, Stephens was immutably a man, regardless of what Stephens asserted about her gender identity, and thus was required to dress as a man consistent with the business’s dress code.  There are many precedents under Title VII upholding the right of employers to adopt reasonable dress codes that do not impose greater burdens on employees of one or the other sex.  The Funeral Home relied on these precedents, especially one from the 9th Circuit upholding the right of an employer to require women to wear makeup.  Judge Cox noted, however, that a 6th Circuit case had specifically differed with that 9th Circuit case, and had rejected the idea that a dress code would necessarily insulate an employer from a charge of sex stereotyping.  Referring to the 6th Circuit’s ruling in an early gender identity sex stereotyping case, Judge Cox wrote, “It appears unlikely that the Smith court would allow an employer like the employer in Jesperson [the 9th Circuit make-up case] to avoid liability for a Title VII sex-stereotyping claim simply by virtue of having put its gender-based stereotypes into a formal policy.  Accordingly. . . the Court rejects the Funeral Home’s sex-specific dress code defense to the Title VII sex-stereotyping claim asserted on behalf of Stephens [by the EEOC] in this case.”

However, in the second part of his opinion, Judge Cox found that the employer should prevail based on a RFRA defense. The Funeral Home argued that requiring it to allow a funeral director identified as male in its employment records to wear clothing specified for a woman presented an unacceptable burden on Rost’s right to operate his business consistent with his religious views.  Assuming the sincerity of Rost’s religious belief, which EEOC did not challenge, Cox found that the EEOC had failed to show that requiring the Funeral Home to let Stephens dress as a woman was the “least restrictive alternative” to achieve the government’s compelling interest in preventing sex stereotyping in the workplace.

Indeed, Cox pointed out, the EEOC’s own theory of the Title VII case was that requiring a particular mode of dress based on gender was a form of sex stereotyping, so its argument that the Funeral Home had to let Stephens dress as a woman under the employer’s dress code in order to achieve the EEOC’s compelling interest in opposing sex-stereotyping was contradictory. Cox noted that the EEOC had not presented any evidence of an attempt to negotiate with the Funeral Home about some sort of gender-neutral dress code that might be acceptable to both Stephens and Rost, and there was deposition testimony by Rost suggesting that a pants suit might be an acceptable compromise. The real problem, from this point of view, was Rost’s insistence that Stephens could not wear a skirt or dress.

Thus, the court concluded that the Funeral Home had a valid defense to the Title VII claim under RFRA, and granted summary judgment to the Funeral Home on that claim.

However, at the end of this part of the decision, responding to an argument by the EEOC that this ruling would severely undermine enforcement of Title VII, Cox pointed out that under 6th Circuit precedent the Funeral Home would not have been able to raise the RFRA defense if Stephens had filed suit against it directly.  “In the vast majority of Title VII employment discrimination cases,” he wrote, “the case is brought by the employee, not the EEOC.  Accordingly, at least in the Sixth and Seventh Circuits, it appears that there cannot be a RFRA defense in a Title VII case brought by an employee against a private employer because that would be a case between private parties.”

The 6th Circuit’s opinion is based on a close reading of RFRA, which can be construed to extend only to cases in which the government is either the plaintiff or the defendant.  That reading is controversial, but so far it seems to have been accepted in several of the circuits.  Thus, although in this case the Funeral Home was able to raise a RFRA defense because the lawsuit was brought by the EEOC, in the vast majority of cases, such a defense would be unavailable to it.

Since Judge Cox had rejected all of the other defenses offered by the Funeral Home under Title VII, consequently, it seems that Stephens would have won on the motion for summary judgment had she sued directly, leaving RFRA out of the picture.

In the last part of the opinion, Judge Cox granted summary judgment to the Funeral Home on the EEOC’s claim that the dress code violated Title VII because the employer provided suits for men but required women to purchase their own work clothes without subsidy. He found that this claim did not relate to the issues in Stephens’ complaint, so it should have been dealt with in a separate lawsuit.  In any event, it seems that the Funeral Home had reacted to the EEOC’s investigation by changing its dress policy to provide financial assistance to female employees, so this issue might be moot.

Judge Cox was appointed to the court by President George W. Bush. He was previously a Michigan state court judge and before that had been a partner in a Michigan law firm.  He is the older brother of former Michigan Attorney General Mike Cox.

Early press coverage of the ruling failed to note Judge Cox’s explanation that the RFRA defense could be raised by the employer only in a case brought by the government, thus making it sound, incorrectly, as if Cox had ruled that employers with religious objections to transgender employees are exempt from any non-discrimination obligation under Title VII. Cox made clear that, at least in the 6th Circuit, the RFRA exemption is only available in an employment discrimination case as a defense to a lawsuit by the government.

 

 

 

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Formalistic Texas Appeals Court Refuses to Issue a Change of “Sexual Designation” for Transgender Petitioner

The Texas 14th District Court of Appeals in Houston upheld a trial judge’s denial of a transgender man’s request for a “gender designation change” embodied in a court order on August 2.  In re Rocher, 2016 WL 4131626, 2016 Tex. App. LEXIS 8266.  The court’s ruling turned on the absence of any Texas statute or regulation specifically authorizing courts to grant such requests.

According to the opinion for the three-judge panel by Justice Martha Hill Jamison, the petitioner, “formerly known as Aidyn Rocher,” filed an Original Petition for Change of Name of Adult in the Harris County District Court on January 28, 2015, almost exactly six months before the U.S. Supreme Court issued its marriage equality ruling of Obergefell v. Hodges.  At the time, same-sex marriage was not available in Texas, so a sexual designation would be important for somebody who sought to get married.  The Petition in this case sought not only a legal change of name to Alex Winston Hunter, but also a change of “sexual designation” from female to male.  The petitioner was represented by a lawyer, who is not named in the court’s opinion.

The lawyer presented two prior Texas court opinions to the trial judge to support the request for the change: In re Estate of Araguz, 443 S.W.3d 233 (Tex. App. 2014 – petition for review denied), and In re N.I.V.S., 2015 WL 1120913 (2015).  Then Hunter testified briefly, with all the testimony relating to the name change request, satisfying the requirement that the court make findings about the date and place of birth, the lack of a felony criminal record (felons may not legally change their names in Texas), and evidence that a name change is not being sought to evade creditors.  At the end of the hearing, petitioner’s lawyer pointed out to the court that under the Texas Family Code “proof of an order relating to a sex change could be used to prove identity for purposes of an application for a marriage license.”  At the end of the hearing, the trial judge granted the name change but denied the request for a “change in gender designation,” finding that there was no specific authority under Texas law authorizing a court to make such a change in designation.

Texas, in common with most (but not all) states, has a statutory procedure for changing the gender designation on a birth certificate. The petitioner in this case, however, was born in Pennsylvania, and Texas courts have no authority to order another state to issue a new birth certificate.  Furthermore, Texas law does not authorize issuance of a birth certificate for somebody who was not born in Texas.  The petitioner could try to get a new birth certificate from Pennsylvania, but he argued that this would be unduly burdensome, and that since Texas law does, in a broad sense, recognize the reality of gender transition by allowing such changes on birth certificates, the court should be able to issue such a declaration in the context of a name-change case.

The court discounted the precedential value of the cases that petitioner’s lawyer had presented. In Araguz, the court was dealing with a dispute about inheritance rights of a transgender woman who had married a Texas man, and the court of appeals had concluded, citing a Texas statute authorizing county clerks to accept a copy of a “court order relating to the applicant’s name change or sex change” in processing a marriage license application, that “Texas law recognizes that an individual who has had a ‘sex change’ is eligible to marry a person of the opposite sex.”  But, wrote Justice Jamison, “The Araguz court did not, however, suggest that the section authorized a trial court to order a change in a person’s gender designation.”  In the other case, N.I.V.S., although the court of appeals had noted that “one of the parties had ‘obtained a court order changing his identity from female to male,’” citing the same section of the marriage statute, the court in that case had stated, “because it is not necessary to the disposition of this appeal, we do not comment on the effect, if any, of such an order.”

Thus, although some past Texas court opinions had intimated that court might, or actually had, issued orders recognizing changes of sex designation, this court found that none of those cases directly answered the question whether a Texas court has authority to do such a thing, and this panel of judges was unwilling to take that step without some direct prior precedent or statutory authorization.

The petitioner had also argued on appeal that in light of Obergefell, it would be unconstitutional for the courts of Texas to refuse to issue such an order if presented with appropriate evidence.  Unfortunately, however, the trial hearing took place before Obergefell, so this claim had not been presented to the trial court, and appeals courts generally refuse to consider arguments that were not raised at trial and thus “preserved” for review.  A good argument can be made that the Supreme Court’s commentary in that case, and in the prior cases of Lawrence v. Texas and United States v. Windsor, would support a claim that the liberty protected by the Due Process Clause of the 14th Amendment would include a right of self-determination in matters of gender identity, as a matter of respect for individual dignity.  But this court ruled out any consideration of that argument.

Indeed, in a footnote the court also stated that because it had found lacking any authority to issue such an order, it “need not in this case take any position regarding what type of evidence could suffice to demonstrate a gender change.” This is a much-contested issue in other jurisdictions, especially focusing on whether and the degree to which a transgender person must undergo surgical alteration before they can claim to have transitioned sufficiently to change their sex for legal purposes.

Of course, after Obergefell it is unnecessary for a transgender person to get a legal designation of sex in order to marry the person with whom they are in love, because the gender of the parties has been rendered irrelevant.  But sex still matters for other purposes, and particularly for legal identification documents such as driver’s licenses and voter identification card for non-drivers, so the unavailability of a mechanism in Texas for transgender residents born in other jurisdictions to obtain such a declaration from a Texas court is another unnecessary stumbling block to getting on with one’s life.

Many years ago, a more empathetic court, the Maryland Court of Appeals, ruled in In re Heilig (2003) that a Maryland trial court could draw upon its general equitable powers to declare a change of sex designation for a transgender applicant who was born, coincidentally, in Pennsylvania.  And, interestingly, as of August 8, 2016, new regulations in Pennsylvania allow a transgender person born in that state to obtain a new birth certificate by providing certain documentation to the Health Department, including a declaration under oath by a doctor that the individual has received appropriate clinical treatment to be considered male or female, as the case may be, without getting into specifics.  The necessary information is easily available on several websites.  So the petitioner in this case can download the necessary forms and obtain a new birth certificate from Pennsylvania with minimal expense and fuss.  Unfortunately, not every state is so accommodating, and some still refuse to issue new birth certificates for this purpose.

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2nd Circuit Remands CAT Claim by Gay Jamaican Man

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit has remanded to the Board of Immigration Appeals (BIA) for reconsideration a claim for relief under the Convention Against Torture (CAT) by a gay man from Jamaica who was subject to deportation based on some state law convictions in Connecticut.  Walker v. Lynch, 2016 WL 4191844, 2016 U.S. App. LEXIS 14554 (August 9, 2016).  The panel, consisting of Circuit Judges Pierre N. Leval, Reena Raggi, and Raymond J. Lohier, Jr., found that the BIA had misapplied the law and inexplicably failed to respond to strong evidence from the U.S. State Department’s Human Rights Report on Jamaica as well as from a former leader of a Jamaican gay rights group about the dangers facing men known to be gay in Jamaica.

The court designated this decision as an “unpublished summary order,” so it does not include a detailed account of what the petitioner claimed to have happened to him growing up in Jamaica, but it mentions his claim that he was raped by an uncle, who allegedly threatened to “slit his throat for revealing the rapes and spreading rumors” that the uncle is gay, and that a cousin (the son of this uncle) had threatened to kill him “for levying accusations of homosexuality” at the cousin’s brother and father, who were “the two individuals responsible for his childhood sexual traumas.” The petitioner claimed that he was widely known to be gay in Jamaica.

The petitioner is resorting to a CAT claim because his criminal record in the U.S. precludes an application for asylum or withholding of removal. A non-citizen can be deported by the government, even if there is a probability that he would be subjected to persecution in his home country, if he is convicted of a serious crime in the U.S. The court in this case is not specific about the crimes for which the petitioner was convicted, merely commenting in passing that he was found to be removable “by reason of having been convicted of, inter alia, an aggravated felony and a controlled substance offense.”  In order to claim protection against deportation to his home country under the CAT, the petitioner has to show that (1) “it is more likely than not that he or she would be tortured if removed to the proposed country of removal” and (2) “government officials would inflict such torture, or otherwise acquiesce in it.”  In this context, torture is defined as being “subjected to acts ‘by which severe pain or suffering is intentionally inflicted for any reason based on discrimination of any kind.’”  Acquiescence by the government describes a situation where the government “knows of or is willfully blind to anticipated acts of torture and breaches its legal responsibility to prevent it.”

The main evidence presented to the Immigration Judge (IJ) in addition to the petitioner’s credible claims about sexual assault and threats from relatives was a 2013 Human Rights Report published by the U.S. State Department, the kind of document that is supposed to carry great weight in these kinds of proceedings. The court wrote that this document “states that, in Jamaica – where laws criminalize ‘acts of gross indecency … between persons of the same sex’ – lesbian, gay, bisexual, and transgender (“LGBT”) individuals suffer ‘serious human rights abuses, including assault with deadly weapons, ‘corrective rape’ of women accused of being lesbians, arbitrary detention, mob attacks, stabbings, harassment . . . by hospital and prison staff, and targeted shootings.”  The Report “further states that ‘brutality against [gay men], primarily by private citizens, was widespread in the community,’ and that ‘gay men hesitated to report such incidents against them because of fear for their physical well-being.’  Moreover, ‘although individual police officers expressed sympathy for the plight of the LGBT community and worked to prevent and resolve instances of abuse, the police force in general did not recognize the extent and seriousness of violence against members of the LGBT community, and failed to investigate such incidents.”

The court also referred to a letter from “the former director of the Jamaica Forum for Lesbians, All-Sexuals & Gays (‘J-FLAG’),” placed in evidence before the IJ, which stated that while “there have been improvements in the overall response of the police in the past year, the police frequently refuse to investigate crimes against gay individuals.” As a result, said the letter, “gay Jamaicans are not simply subject to violent persecution, but also are understood as safe targets for robbery, extortion and murder because of their outcast status.”

The IJ concluded based on this evidentiary record that the petitioner had failed to show “government acquiescence” because there was “insufficient evidence that the Jamaican government ‘indirectly condones the torture’ of gay individuals,” and the BIA approved this based on its conclusion that the evidence “does not describe whether the failure to investigate in most cases was purposeful and because of the victim’s sexuality.” The 2nd Circuit panel found that the IJ’s statement “appears to have ‘totally overlooked’ the contrary record evidence, and the BIA’s statement “appears to have misapplied the applicable standard by ‘conflating’ the CAT’s ‘specific intent requirement with the concept of state acquiescence.”  In other words, it is not necessary for the petitioner to show that the government wants people to torture gays or intends to leave gays at the mercy of the mob; it is enough to show that the government “know of or remain willfully blind to an act and thereafter breach their legal responsibility to prevent it.”  In short, if gays in Jamaica can’t depend on the government to bring to bear reasonable law enforcement efforts to combat anti-gay persecution amidst an environment that is extreme hostile to gay people, the standard set by the CAT has been met.

In this regard, the CAT standard resembles the “deliberate indifference” standard the courts use in 8th Amendment cases challenging prison living conditions that pose serious risk of harm to inmates.  The plaintiff has to show that government officials are aware of the situation and are effectively refusing to deal with it, leaving the plaintiff in danger of serious harm.  This sounds very much like what the State Department found in Jamaica.  (As a matter of political note, it is worth observing that during the Bush Administration the State Department itself seemed willfully blind to anti-gay persecution in many of its Human Rights Reports, while the Obama Administration, with Hillary Clinton and John Kerry heading the State Department, provided much more inclusive and accurate reporting about anti-gay conditions around the world.)

“Accordingly,” wrote the court, “we remand for the agency to consider, consistent with the controlling precedent referenced, whether it is more likely than not that [Petitioner] will be tortured if removed to Jamaica and that the government will acquiesce in such torture, particularly in light of (1) the evidence discussed herein regarding the general failure of the Jamaican police to investigate crimes against gay individuals, and (2) [Petitioner’s] testimony regarding threats he received from family members.”

The ruling is an effective bench-slap against the BIA for ignoring the strongly-worded State Department Human Rights report on Jamaica – a report that is regularly confirmed by press accounts of anti-gay activity in the country – and a major victory for the Petitioner’s attorney on appeal, Jon Bauer of the Legal Clinic at the University of Connecticut School of Law.

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Supreme Court Stays Injunction against Gloucester School District in Transgender Restroom Case

On August 3 the U.S. Supreme Court granted an application by the Gloucester (Virginia) County School Board to stay a preliminary injunction that had been issued by U.S. District Judge Robert Doumar (E.D. Va.) on June 23; see 2016 WL 3581852. Gloucester County School Board v. G.G., 136 S.Ct. 2442 (No. 16A52), granting stay. The injunction ordered the school board to allow Gavin Grimm, a transgender boy, to use the boys’ restroom facilities at his high school while the trial court determined whether the school’s policy denying such access violates Title IX of the Education Amendments Act of 1972.  What was unusual about the Supreme Court’s action was the brief concurring statement from Justice Stephen Breyer explaining that he had voted to grant the application as a “courtesy.”  The Court indicated that Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan “would deny the application.”  With the vacancy created by the death of Justice Scalia last winter, the four conservative members of the Court – Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas – could not issue the stay, which requires a majority of the Court.

The court specified that the injunction was stayed “pending the timely filing and disposition of a petition for a writ of certiorari.” If the Court denies the writ (that is, refuses to review the lower court’s ruling on the merits), the injunction will go into effect.  If the Court votes to grant review, the stay would end when the Supreme Court issues its ruling on the merits of the appeal.

The lawsuit involves the hotly disputed question whether Title IX’s ban on discrimination “because of sex” by educational institutions prohibits a school from denying transgender students access to restroom and locker-room facilities consistent with their gender identity. It is undisputed that when Congress enacted Title IX several decades ago, there was no consideration or discussion about whether it would require such a result, and it was made clear in the legislative history and subsequent regulations and guidelines that Title IX did not prohibit educational institutes from designating access to such facilities as male-only or female-only. (Indeed, many states have statutory requirements that educational institutions provide separate restroom and locker-room facilities for males and females.)  Furthermore, a series of cases under the various sex discrimination laws over several decades had rejected claims that they extended to gender identity discrimination. As to Title IX, it was not until relatively recently, when teens began to identify as transgender and to begin transitioning while still in school, that the issue has heated up, and it was not until 2015 that the U.S. Department of Education, charged with interpreting and enforcing Title IX, took the position that the ban on discrimination “because of sex” included discrimination because of gender identity.

The Education Department’s interpretation, expressed first in a letter released in connection with litigation over restroom access in a suburban Illinois school district, was not entirely unprecedented, since several lower federal courts have ruled under a variety of sex discrimination laws that discrimination because of gender identity is form of sex discrimination. These include the San Francisco-based 9th Circuit, in a case under the Violence against Women Act (VAWA), the Boston-based 1st Circuit, in a case under the Fair Credit Act, the Atlanta-based 11th Circuit, in a case interpreting the Equal Protection Clause of the 14th Amendment, and the Cincinnati-based 6th Circuit, in a case under Title VII of the Civil Rights Act of 1964 concerning employment discrimination.  However, challengers to the Education Department’s interpretation have argued that it is, in effect, a “changing of the rules” that can only be effected through a formal regulatory process under the Administrative Procedure Act, and not through a position letter in a pending case or an informal “guidance” memorandum.

In this Gloucester County case, Gavin Grimm had been using the boys’ facilities without incident after his gender transition until some complaints by parents to the school board resulted in a vote to adopt a policy requiring Grimm and any other transgender students to use either the facilities consistent with the gender indicated on their birth certificates (sometimes called “biological sex”) or to use single-user facilities designated for use by either sex, such as the restroom in the school nurse’s office. Since medical authorities will not perform “sex-reassignment surgery” on minors, it is impossible for a transgender youth to qualify for a change of gender designation on their birth certificate in most states, and some states rule out such changes altogether.  Grimm, who presents as male, sued under Title IX, claiming that the school district’s new access rule violated his rights under Title IX and the Equal Protection Clause.  Judge Doumar initially rejected his Title IX claim and reserved judgement on the Equal Protection claim, disagreeing with the Education Department’s interpretation of the statute.  132 F.Supp.3d 736 (E.D.Va., Sep. 17, 2015). This ruling was reversed on April 19 by the Richmond-based 4th Circuit Court of Appeals, 822 F.3d 709, which ruled that Doumar should have deferred to the Education Department’s interpretation of its own regulations and the statute.  The 4th Circuit subsequently voted to deny en banc review of this ruling, 824 F.3d 450 (May 31, 2016).  The 4th Circuit sent the case back to Judge Doumar, who then issued the preliminary injunction, and refused to stay it.  The 4th Circuit also refused to stay it, on July 12, 2016 WL 3743189.  The school district’s application to the Supreme Court indicated that it would be filing a petition for review of the 4th Circuit’s April 23 ruling, but in the meantime it wanted to preserve the “status quo” until there was a final ruling on the merits of the case.  Most pressingly, it wanted to ensure that its existing access rule would be in place when classes resumed at the high school.

At the heart of the disputes about Title IX restroom access cases is a fundamental disconnect between those who reject, based on their religious views or other beliefs, the idea that a transgender man is actually male or a transgender woman is actually female. (This is expressed in the controversial Mississippi HB 1523, which seeks to privilege those whose religious beliefs reject the concept of gender identity being discordant with anatomical sex at birth, by allowing individuals and businesses holding such beliefs to refuse to recognize transgender identity.)  Based on their political rhetoric and the arguments they make in court, it is clear that these critics believe that gender is fixed at birth and always coincides with anatomical sex, rejecting the whole idea of gender transition.  Thus, their slogan: No men in women’s restrooms, and no women in men’s restrooms.  Some premise this opposition on fears about safety, while others emphasize privacy, arguing that people have a “fundamental” constitutional privacy right not to confront transgender people in single-sex facilities.)  On the other side of the issue are those who accept the experience of transgender people and the findings of scientific researchers who have detected evidence that there is a genetic and/or biological basis for individuals’ strong feeling that they are misclassified.

This is, of course, not the only pending case placing in issue the Education Department’s interpretation of Title IX (which has also been endorsed by the Justice Department as it has represented the Education Department in court), or the broader question of whether federal sex discrimination laws are limited to instances of discrimination against somebody because of their “biological sex.” A three-judge panel of the 7th Circuit Court of Appeals recently ruled that circuit precedent required dismissal of a sexual orientation employment discrimination claim under Title VII, and the plaintiffs in that case will be seeking rehearing by the full 7th Circuit “en banc.”  There are also two appeals pending in the New York-based 2nd Circuit appealing dismissals of sexual orientation discrimination claims under Title VII, as well as an appeal in the Atlanta-based 11th Circuit by an employer seeking reversal of a district court’s refusal to dismiss such a claim.

There are also multiple lawsuits pending in North Carolina and Mississippi, and cases involving multiple states as plaintiffs in Texas and Nebraska, challenging the federal government’s interpretations of “sex discrimination” in either or both of the sexual orientation and gender identity contexts. Early in August federal district judges held hearings in several of these cases where litigants were seeking preliminary injunctions, either to bar enforcement of state laws or to block enforcement of Title IX by the Education Department.  The district court in Mississippi has refused to stay its injunction against the Mississippi law, and has been backed up by the New Orleans-based 5th Circuit Court of Appeals.  Mississippi will seek a Supreme Court stay, and in light of the Gloucester County stay, seems likely to receive one.

Justice Breyer cited in support of his “courtesy” vote a 2008 case, Medellin v. Texas, where the four liberal members of the Court had voted to grant a stay of execution of a Mexican national while important issues concerning the consular treaty rights of foreign nationals being tried on criminal charges in U.S. courts were unsettled and no member of the conservative branch of the Court was willing to provide a fifth vote as a “courtesy” to put off the execution until the underlying legal issues could be resolved.  In this case, the four conservative members of the Court clearly believed that the school district should not have to comply with the injunction until the underlying legal issues were settled, and Breyer was willing to extend to them the courtesy that none of them would extend in the 2008 case!

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7th Circuit Panel Rejects Lesbian Professor’s Title VII Claim

A three-judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit ruled on July 28 that a lesbian professor could not sue the local community college in South Bend, Indiana, for sexual orientation discrimination under Title VII of the federal Civil Rights Act of 1964, rejecting her argument that anti-gay discrimination is a form of sex discrimination in violation of that law.  Hively v. Ivy Tech Community College, 2016 U.S. App. LEXIS 13746, 2016 Westlaw 4039703.

 

Weighing in on a question that has taken on renewed vitality since last July, when the Equal Employment Opportunity Commission (EEOC), a federal agency that enforces Title VII, ruled that David Baldwin, a gay air traffic controller, could bring an employment discrimination claim against the U.S. Transportation Department, the court, while describing the existing precedents in the 7th Circuit as “illogical,” nonetheless concluded that it was bound by those precedents.

 

Kimberly Hively began teaching part-time at Ivy Tech Community College in 2000. She applied six times for full-time positions for which she claimed to be qualified, but she was always turned down and her part-time contract was not renewed in July 2014.  By then, she had already filed a complaint with the EEOC on December 13, 2013, representing herself.  This was about 18 months before that agency changed its long-standing position and began to approve gay Title VII claims in the air traffic controller case.   The EEOC’s position, however, is not binding on federal courts.

 

Hively did not file a complaint with the South Bend human rights agency. Although that city’s anti-discrimination law was amended in 2012 to include sexual orientation, the city does not have jurisdiction to legislate about personnel practices at state-operated educational institutions, and they are explicitly exempted from coverage by the local law.  There is no Indiana state law forbidding sexual orientation discrimination.

 

After the EEOC concluded that it did not have jurisdiction, it sent Hively a “right to sue” letter. She filed her claim in federal court on August 15, 2014.  The college filed a motion to dismiss, arguing that sexual orientation discrimination claims are not covered under Title VII.  Hively, citing the advances of gay rights in the courts, urged that the college should not be allowed to discriminate based on sexual orientation.  On March 3, 2015, U.S. District Judge Rudy Lozano granted the college’s motion.   Citing a 7th Circuit decision from 2000 and a 2010 decision by the federal district court in Indiana, Judge Lozano wrote, “While this Court is sympathetic to the arguments made by Hively in her response brief, this Court is bound by Seventh Circuit precedent.  Because sexual orientation is not recognized as a protected class [sic] under Title VII, that claim must be dismissed.”

 

Hively also alleged a violation of 42 U.S.C. Section 1981, which Judge Lozano had to dismiss as well, because the Supreme Court interprets that 19th-century statute to apply only to race discrimination claims.  HiverlyivelyHi also asked to amend her complaint to push a claim for breach of contract, seeking enforcement of the college’s published non-discrimination policy, but that claim would arise under Indiana state contract law, and federal courts usually refuse to address state law claims when they have determined that the plaintiff has no federal law claim.

 

The fate Hively suffered in the district court shows the perils of individuals trying to navigate the complexities of federal employment law without legal representation. A well-versed lawyer might have found a way to construct a 14th Amendment Equal Protection claim on her behalf, which could be directed against individual school officials if she could allege sufficient facts to suggest that they refused to consider her applications because she is a lesbian, although there would be no guarantee of success because the Supreme Court has yet to rule on whether sexual orientation discrimination claims against public officials are entitled to heightened or strict scrutiny.

 

Attorney Gregory Nevins from Lambda Legal’s Atlanta office represented her on appeal to the 7th Circuit, where oral argument took place on September 30 and a long wait began for the court’s opinion.  The wait seemed surprising, because the three-judge panel would most likely easily conclude, as had Judge Lozano, that circuit precedent would dictate affirmance.  But the court took nine months to release its decision.  (By contrast, the 7th Circuit issued its marriage equality decision in 2014 less than two weeks after oral argument.)

 

Judge Ilana Rovner’s opinion obviously took so long because the majority of the panel was not content just to issue a pro forma dismissal in reliance on circuit precedent. The first, shorter, part of Rovner’s opinion, performing that function, was joined by Senior Judges William Bauer and Kenneth Ripple.  But the second, much longer, part, joined by Judge Ripple, provides a lengthy and detailed discussion of how the  EEOC’s Baldwin decision has led to an intense debate in the district courts around the country about how those old precedents are clearly out-of-step with where the country has moved on LGBT rights.

 

Judge Rovner (or, more likely, Lambda Legal in its appellate brief) collected district court decisions from all over the country – particularly from circuits where there were no adverse appeals court rulings – in which judges have decided to follow the EEOC’s reasoning and find that discrimination because of sexual orientation is “necessarily” sex discrimination.

 

The logical pathway to that conclusion runs through the Supreme Court’s 1989 ruling, Price Waterhouse v. Hopkins, which accepted the argument that discrimination against an employee because that employee fails to meet their employer’s sex-stereotypical views about how employees present themselves, is evidence of sex discrimination. That case involved a woman who was denied a partnership because she was perceived as inadequately feminine in her dress and conduct by partners who voted on the partnership decision.

 

Since 1989 some district courts have extended protection under Title VII to LGBT plaintiffs who could plausibly allege that they encountered discrimination because of sex stereotypes, but other courts have refused to take such cases, criticizing them as attempting to “bootstrap” coverage for sexual orientation into Title VII against the intent of Congress. What has emerged is a hodgepodge of decisions, resulting in the odd situation that, at least in some circuits, a gay plaintiff who is also obviously gender-nonconforming in terms of dress and speech may be protected under Title VII using the stereotyping theory, but a “straight-acting” gay plaintiff would have no protection.  Judge Rovner pointed out the irrationality of this, but, unfortunately, the 7th Circuit precedents seemed inescapable to this panel.

 

After discussing how various courts have pointed out the difficulties of distinguishing between a sex-stereotyping case and a sexual orientation case, she observed that the difficult is not necessarily impossible. “There may indeed be some aspects of a worker’s sexual orientation that create a target for discrimination apart from any issues related to gender,” she wrote.  “Harassment may be based on prejudicial or stereotypical ideas about particular aspects of the gay and lesbian ‘lifestyle,’ including ideas about promiscuity, religious beliefs, spending habits, child-rearing, sexual practices, or politics.  Although it seems likely that most of the causes of discrimination based on sexual orientation ultimately stem from employers’ and co-workers’ discomfort with a lesbian woman’s or a gay man’s failure to abide by gender norms, we cannot say that it must be so in all cases.  Therefore we cannot conclude that the two must necessarily be coextensive unless or until either the legislature or the Supreme Court says it is so.”

 

In this case, she pointed out, Kimberly Hively had not made any specific allegations of gender non-conformity, other than the implicit contention that being a lesbian, as such, was gender non-conforming in that she was attracted to women rather than men. Although a few district courts, especially after the Baldwin ruling, have found that to be enough to squeeze into coverage under the sex stereotype theory, the 7th Circuit hasn’t gotten there yet, and this panel did not feel empowered to extend circuit precedent to accept that argument.

 

While noting the significant advances in LGBT rights at the Supreme Court from Romer v. Evans (1996) through Obergefell v. Hodges (2015), Judge Rovner pointed out that in none of those cases has the Supreme Court said anything that would deal directly with the question whether anti-gay discrimination must be treated as a form of sex discrimination under Title VII. But she did observe the stark legal anomaly created by last year’s marriage equality decision.

 

“The cases as they do stand, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act,” she wrote. “For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.  From an employee’s perspective, that right to marriage might not feel like a real right if she can be fired for exercising it.  Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, ‘You are a hard-working employee and have added much value to my company, but I am firing you because you are gay.’  And the employee would have no recourse whatsoever – unless she happens to live in a state or locality with an anti-discrimination statute that includes sexual orientation.  More than half of the United States, however, do not have such protections.”

 

She pointed out the additional oddity that even a “straight” employee who was discharged because her employer mistakenly thought she was a lesbian would have no protection, unless she could show her overt violation of gender stereotypes aws the reason for the discrimination. Straight people are not protected from “mistaken” sexual orientation discrimination!

 

Judge Rovner observed that this state of the law “leads to unsatisfying results.” It also is inconsistent with Title VII race discrimination cases that impose liability when an employer fires a white employee because he or she is dating or marrying a person of a different race.  It is now well-established that it is race discrimination to single out somebody because of their interracial social life.  Why not, as a logical matter, prohibit discriminating against somebody because of their same-sex social life?  The logic seems irrefutable.  “It is true that Hively has not made the express claim that she was discriminated against based on her relationship with a woman,” wrote Judge Rovner, “but that is, after all, the very essence of sexual orientation discrimination.  It is discrimination based on the nature of an associational relationship – in this case, one based on gender.”

 

Rover found it “curious” that “the Supreme Court has opted not to weigh in on the question of whether Title VII’s prohibition on sex-based discrimination would extend to protect against sexual orientation discrimination” and that even in “the watershed case of Obergefell” the court “made no mention of the stigma and injury that comes from excluding lesbian, gay, and bisexual persons from the workforce or subjecting them to un-remediable harassment and discrimination.” But, frustratingly, the Supreme Court has yet to tackle head-on the direct issue of anti-gay discrimination in a way that would provide guidance to lower federal courts and state courts, and has so far consistently denied review in cases presenting this question.  “In addition to the Supreme Court’s silence,” she observed, “Congress has time and time against said ‘no’ to every attempt to add sexual orientation to the list of categories protected from discrimination by Title VII.”

 

Ultimately the judge was very critical of the 7th Circuit’s precedent.  “It may be that the rationale appellate courts, including this one, have used to distinguish between gender non-conformity discrimination claims and sexual orientation discrimination claims will not hold up under future rigorous analysis,” she wrote.  “It seems illogical to entertain gender non-conformity claims under Title VII where the non-conformity involves style of dress or manner of speaking, but not when the gender non-conformity involves the sine qua non of gender stereotypes – with whom a person engages in sexual relationships.  And we can see no rational reason to entertain sex discrimination claims for those who defy gender norms by looking or acting stereotypically gay or lesbian (even if they are not), but not for those who are openly gay but otherwise comply with gender norms.  We allow two women or two men to marry, but allow employers to terminate them for doing so.  Perchance, in time, these inconsistencies will come to be seen as denying practical workability and will lead us to reconsider our precedent.”  She then quoted Justice Kennedy’s Obergefell decision, pointing out how “new insights and societal understandings” could lead to changes in the law.

 

Rovner concluded that it was “unlikely” that society would tolerate this anomalous situation for long. “Perhaps the writing is on the wall,” she wrote.  “But writing on the wall is not enough.  Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is affirmed.”

 

This conclusion is not totally accurate.  The full 7th Circuit, considering this issue en banc, could decide to overrule the prior precedent within the circuit without waiting for passage of the Equality Act (which would amend Title VII to add sexual orientation and gender identity) or for a Supreme Court ruling.  Judge Rovner’s extended critique implies receptivity to rethinking the precedent, so perhaps a motion for rehearing en banc could find favor with a majority of the judges of the circuit.

 

A little “circuit math” suggests the possibility: There are nine active judges on the 7th Circuit, with two vacancies for which President Obama has made nominations that are stalled in the Senate.  Only one of the active judges was appointed by President Obama, David Hamilton, and two were appointed by President Clinton, Chief Judge Diane Wood and Ann Williams.  All the other judges are appointees of Presidents George H.W. Bush and Ronald Reagan.  (There is no appointee of George W. Bush sitting on the 7th Circuit.)

 

The three-judge panel in this case consisted entirely of Republican appointees: Judge Rovner by the first President Bush, Senior Judges Bauer and Ripple by Presidents Ford and Reagan. Interestingly, Ripple and Rovner, both Republican appointees with long service on the court, agree that the precedent is “illogical” and not “rational.”  Unfortunately, Judge Ripple, as a Senior Judge, would not participate in an en banc rehearing.  But perhaps despite the strong 6-3 overall Republican tilt of this circuit, a full nine-member bench might find a majority for granting en banc rehearing and changing the circuit precedent.  That would require at least one more Republican appointee to join Rovner and the three Democratic appointees to make a 5-4 majority.

 

One of the other Republican appointees, Richard Posner, could be the prime candidate for that. He wrote the 7th Circuit’s magnificent marriage equality decision, which reflected his strong receptivity to reconsidering his views on LGBT issues, a point he has subsequently reiterated in a law review article musing about his changing understanding of LGBT issues since he was appointed to the court by Ronald Reagan in the 1980s.

 

On the other hand, it is possible that this opinion took so long to get out because some attempt was made within the judges’ chambers to provoke a spontaneous en banc reconsideration , but it was unsuccessful.  Who knows?  Mysterious are the inner workings of our courts.

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9th Circuit Denies On-Line Newspaper’s Anti-SLAPP Motion Against Porn Star’s Libel & False Light Lawsuit

A unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit affirmed a decision by District Judge George H. Wu to deny an anti-SLAPP motion by Associated Newspapers LTD, publishers of Daily Mail Online, which is being sued by “Danni Ashe,” a straight porn diva whose real name is Leah Manzari, over the use of her picture to illustrate an article about HIV in the porn industry.  Manzari v. Associated Newspapers LTD., 2016 U.S. App. LEXIS 13488, 2016 WL 3974178 (July 25, 2016).  Manzari, who asserts without contradiction that she is not and has never been HIV-positive, claimed that the publication would lead viewers to believe that she was infected, and sought $3 million in damages for libel and “false light” invasion of privacy.  The 9th Circuit agreed with Judge Wu that Manzari was likely to prevail on the merits of her tort claims.  Judge M. Margaret McKeown wrote the opinion for the court of appeals.

According to its legislative history, California’s anti-SLAPP statute (SLAPP stands for “strategic lawsuit against public participation”) was passed in response to “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” It is intended to protect those who want to comment or publish on issues of public importance from nuisance suits intended to discourage their exercise of free speech.  When a defendant responds to a tort suit with an anti-SLAPP motion, the burden falls on the plaintiff to establish that “there is a probability that the plaintiff will prevail on the claim.”  In a non-SLAPP situation, a plaintiff can survive a motion to dismiss merely by alleging facts sufficient to suggest a plausible legal claim.  Thus, the anti-SLAPP device, putting a greater burden on the plaintiff, is supposed to protect free speech by nipping non-meritorious lawsuits in the bud, before the defendant incurs significant expenses in discovery and summary judgment litigation defending against a non-meritorious case.

This case arose when Daily Mail Online published a story about a “shutdown of the Los Angeles-area porn industry” in 2013 after a female performer, whose identity was not then disclosed, tested positive for HIV. The author of the article, James Nye, asked the photo desk to supply “some pictures representative of the pornographic film industry that contained no nudity” that could be used to illustrate the article.  He was provided with several “stock” photographs selected from the Corbis Images database, one of which was identified in that database as follows: “Soft porn actress Danni Ashe, founder of Danni.com, poses in front of a video camera connected to the Internet in one of her studios in Los Angeles in 2000.”

Judge McKeown described the article in her opinion. “The headline read ‘PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE PERFORMER’ TESTS POSITIVE FOR HIV.’  After a few lines of text, the article contained a picture of Manzari lying suggestively across a bed with ‘In Bed With Danni” written in neon lights behind her.  Under her photograph was the caption: ‘Moratorium: The porn industry in California was shocked on Wednesday by the announcement that a performer had tested HIV positive.’”

Somebody reading further into the article would learn that the actress who tested positive was “new to the industry” and that “the performer was not immediately identified.” Other “stock” photos depicting other porn actresses also appeared in the article. Neither Danni Ashe nor Manzari was named in the text of the article.

Manzari’s attorney contacted Daily Mail Online when the article was published, demanding that the photograph be removed. Daily Mail made the change on their website, but the damage had been done, according to Manzari.  The original version of the article had been syndicated on the Internet. She claimed that a Google search returned the original version with her picture from websites around the world.  Worse, the version that showed up on a search screen would have the headline and her photograph, without any of the explanatory text as to the actress being “unknown.”  Consequently, she alleged, most of those who saw the article on line or as part of a search would conclude that “Danni Ashe” was HIV-positive.

Daily Mail argued that this was a frivolous lawsuit intended to chill their publication of a newsworthy story, and that the “stock” photograph was an appropriate illustration for the article. They pointed out that they never named Manzari (or “Ashe”) in the article or stated that the model in the picture was HIV-positive.  Furthermore, they pointed out, the article was a true news story on an item of public interest, thus entitled to strong First Amendment protection.  “There is no serious dispute that the libel and false light suit targeted speech protected by the anti-SLAPP statute,” wrote McKeown, so “the burden shifts to Manzari to show a reasonable probability of prevailing on the merits.”  Daily Mail also argued that Manzari, in the guise of Danni Ashe, should be treated as a “public figure,” which means that Daily Mail could be held liable to her only if it was shown that they had published the picture with “actual malice,” which in this case would mean with actual knowledge that it communicated a false meaning or with reckless disregard as to the truth.

Manzari is making two claims. The libel claim contends that an untrue publication that she is HIV-positive would be damaging to her personal or professional reputation, and the “false light” claim contends that the photograph provides an inaccurate depiction of her to the public in the context in which it is presented.  In any tort case, the plaintiff has to prove actual injury, although libel law traditionally presumes “actual injury” if a person is falsely depicted as having a “loathsome” disease, and sexually-transmitted diseases  such as HIV generally fall into that category, or is falsely described in a way that would be harmful to their standing in the profession.  Interestingly, the court’s opinion contains no discussion whatsoever about whether falsely implying or communicating that somebody is HIV-positive would harm their reputation or professional status.  This is silently assumed, perhaps because it struck the court that it would be obvious to anybody that saying that a porn actress is HIV-positive would adversely affect her ability to work in her chosen profession.

The court focuses instead on other factors in the legal analysis. For example, it makes a difference whether the plaintiff is a “public figure.”  People who have achieved sufficient fame or notoriety that they are recognizable to the public at large are deemed to be “public figures” whose activities are inherently newsworthy, and thus they face a high burden in trying to hold the press liable for reporting about them.  The court found that although Danni Ashe’s fame might be somewhat specialized, she nonetheless qualifies as a public figure. “Manzari is a pioneer in the online adult entertainment industry,” wrote the court.  “Her website www.Danni.com, which she designed and launched in 1995, began generating multimillion dollar revenues in the early 2000s.  During this time, ‘Danni Ashe’ was one of the most well-known and popular soft-core porn actresses in the world, as well as a highly successful entrepreneur, with one of the most visited websites on the Web.  She retired from the adult entertainment industry in 2004 and sold www.Danni.com, but the website remains active under that name.”  The court found that press references to Ashe supplied by Daily Mail Online supported its contention that the public figure rules should apply, which means that in order to deny the motion to dismiss her case, the court would have to find that she could probably win on the issue whether the false representation was made with “actual malice” to meet the constitutional standard.

Next, the court confronted Daily Mail’s argument that the article never mentioned Danni by name. Actually, that wasn’t true, as the picture itself had her first name in neon lights as background to her image.  “The bold headline and its content, juxtaposed with her photograph and yet another caption under her picture that said the industry was ‘shocked’ that a ‘performer had tested HIV positive,’ was sufficient for a reasonable reader to infer that Manzari was the performer who had tested positive for HIV,” wrote Judge McKeown, treating this as an “implied” defamation case.

Daily Mail argued that “this case is different from the classic defamation by implication case because it did not make any statement by including a stock photograph selected as a ‘good, nonobscene photograph to illustrate the article.’”  McKeown characterized this argument as “disingenuous,” saying that it “overlooks the fact that a photograph itself can convey both an implicit and an explicit message and that the headline, caption and photograph taken together are also a statement.”  The court found that when it considered the article “as a whole” and in its full context, “a reasonable reader could infer that the article is about Manzari.”

As to the “actual malice” requirement, it was clear that the Daily Mail Online had done nothing to determine whether the person in the photograph, who was clearly a porn actress, was HIV-positive. “This case rests on the ‘reckless disregard’ prong of actual malice,” wrote the court.  “Recognizing that California law requires only ‘minimal merit’ to withstand initial dismissal under the anti-SLAPP statute, we hold that Manzari has raised sufficient factual questions for a jury to conclude that the Daily Mail Online acted with reckless disregard for the defamatory implication in its article on the Los Angeles porn industry shutdown.  Manzari’s evidence is sufficient to support her claim that the Daily Mail Online placed her photograph in the article, juxtaposed with the incendiary headline and caption, knowing or acting in reckless disregard of whether its words would be interpreted by the average reader as a false statement of fact.”

Not only was it likely that readers would infer Manzari was the subject of the article, but Daily Mail’s editorial staff “actively removed key contextual information from the ‘Danni Ashe’ photograph as it was presented in the Corbis database,” replacing the database description, quoted above, with the language about the industry being “shocked” about an actress testing positive. “The publishers also failed to include any explanation or disclaimer adjacent to the ‘Danni’ photograph, which would have informed readers that she was not the subject of the article.”

Furthermore, the court gave little weight to the publisher’s denial of any intention to communicate to readers that Manzari was HIV-positive. “If all a publisher needed to do was to deny the allegation, all implied defamation suits would be dead on arrival,” said the court.  “If, for instance, a newspaper ran the headline: ‘High Profile Figure Accused of Murder’ alongside a photograph of the Mayor of New York City, or ‘Industry Shocked that Grocery Sprayed Veggies with Pesticide’ alongside an image of a nationally-known grocery chain, the publishers would be hard-pressed to plausibly claim that they had simply selected a ‘stock’ photograph.  The same holds true for a story about the pornography industry, featuring a picture of a world-famous pornographic actress with her name written in neon lights.”  In a sarcastic footnote, McKeown added, “One need only look to the Daily Mail’s own evidence of Manzari’s public figure status to confirm the ubiquity of her image and her identity.  Her image can hardly be relegated to the status of a ‘stock’ photograph.”

“This sort of willful blindness cannot immunize publishers where they act with reckless disregard for the truth or falsity of the implication they are making,” concluded McKeown. “Manzari meets the ‘minimal merit’ threshold to avoid outright dismissal of her complaint,” so the district court “properly denied the Daily Mail’s motion to strike Manzari’s complaint.”

The usual consequence of denial of an anti-SLAPP motion would be for the defendant to offer a settlement to the plaintiff, since the court has already concluded that there is a reasonable probability that the plaintiff would win the case before a jury. If Daily Mail wants to pursue its motion further, it could seek reconsideration by a larger panel of the 9th Circuit or petition the Supreme Court for review, but neither of those routes seems likely to result in a reversal of the panel’s logical and unanimous decision.  Time for Daily Mail’s liability insurer to step in.

Los Angeles attorney Steven L. Weinberg represents Manzari. Katherine M. Bolger of the New York firm Levine Sullivan Koch & Schulz LLP and California local counsel Louis P. Petrich of Leopold, Petrich & Smith PC, represent Daily Mail.

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Kansas’ Narrow Interpretation of Obergefell Rejected by Federal District Court

U.S. District Judge Daniel D. Crabtree, who had ruled on November 4, 2014, that the Kansas constitutional amendment and statutes banning same-sex marriage were unconstitutional, has issued a final ruling in that case, Marie v. Mosier, 2016 WL 3951744 (D. Kan., July 22, 2016), effectively finding that Kansas officials cannot be trusted to comply voluntarily with the Supreme Court’s marriage equality ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), without the prod of an injunction that would subject them to contempt proceedings if they fail to comply fully.  In light of the initial refusal by the state to issue appropriate birth certificates for children of lesbian couples, and continuing ambiguity about how state officials will handle such situations, the court rejected the state’s argument that the lawsuit should be dismissed as “moot” or that its prior rulings should be vacated as unnecessarily in light of Obergefell.

When Judge Crabtree issued his preliminary injunction in 2014, the 10th Circuit Court of Appeals, which has jurisdiction over Kansas, had already issued rulings prohibiting Oklahoma and Utah from enforcing their laws against same-sex marriage, and the U.S. Supreme Court had refused to review those rulings on October 6, 2014, so they had gone into effect.  Shortly afterward, however, the 6th Circuit had ruled against marriage equality, and in January 2015 the Supreme Court announced it would review that decision.  On June 26, 2015, the Supreme Court ruled in Obergefell that same-sex couples were entitled to the same marriage rights under state law as different-sex couples.  After Obergefell, the Kansas defendants moved to dismiss Marie v. Mosier as “moot,” but the plaintiffs moved instead to have the court issue a declaration that the Kansas ban on marriage equality was unconstitutional and to issue an injunction requiring the state to comply with Obergefell.  This responded to an argument that was being made by some marriage equality resisters that the Supreme Court’s decision applied only to states in the 6th Circuit, and to the announced opposition to the Supreme Court’s decision by Kansas Governor Sam Brownback and other Kansas officials.  The plaintiffs feared that Kansas would not give full effect to the “equality” requirement of the Supreme Court’s decision, despite assurances by the state’s attorney that it would do so.

At that time, Judge Crabtree decided to give the state the benefit of the doubt. On August 10, 2015, he issued a declaratory judgment, but withheld injunctive relief to give the state time to comply voluntarily.  Voluntary compliance did follow in many respects, such as issuing marriage licenses, but the plaintiffs responded to the state’s contention that it had complied voluntarily by bringing to the court’s attention two instances in which state officials had refused to issue birth certificates listing both mothers of children born to married lesbian couples.  Indeed, in one of those cases the mothers had gone into state court to get an order to issue an appropriate birth certificate, and the state initially resisted the state court order.  Subsequently both of those cases were resolved by the state issuing appropriate birth certificates, but contradictory statements issued from officials of the Kansas Department of Health and Environment, one suggesting that in future same-sex couples would be treated the same as different-sex couples when children were conceived through donor insemination, but the other stating that same-sex couples would have to alert the department in advance so that a case-by-case determination could be made about whether a birth certificate listing both women would be issued.

Judge Crabtree concluded that the case was not “moot” and an injunction was necessary. In this case, there was clear evidence that state officials were complying reluctantly with Obergefell, sometimes only under the prodding of court orders, so the court could not conclude that there was no longer an issue of whether same-sex couples in Kansas could expect to receive equal treatment from all instrumentalities of the state government in all circumstances.

“Exercising its remedial discretion,” wrote Crabtree, “the court has decided to grant a permanent injunction forbidding defendants (and their successors) from enforcing or applying any aspect of Kansas law that treats same-sex married couples differently than opposite-sex married couples. As the court noted last August, a significant value exists in giving public officials a reasonable opportunity to comply voluntarily with a mandate by the Supreme Court.  The record here shows that defendants have said they will comply with Obergefell and, in many instances, they have acted to implement the changes that compliance requires.  But even after Obergefell and even after this court’s declaratory judgment, the record also demonstrated one defendant’s department deliberately refused to treat two same-sex married couples in the same fashion it routinely treats opposite-sex couples.  This disparate treatment did not result from oversight, inadvertence, or decisions made at lower levels of the department.  To the contrary, the conduct involved officials who the court would expect to know about Obergefell, this court’s preliminary injunction [from 2014], and the defendants’ assurances that they intended to comply with Obergefell.  This conduct required one same-sex couple to file an action in state court to get something that an opposite-sex couple would have received as a matter of course.”

In reaching this conclusion, Judge Crabtree listed the decisions by judges in numerous other states who issued permanent injunctions against those states after the Obergefell decision upon finding that the cases were not “moot” because of actual or potential failures of those states fully to comply with Obergefell’s equality mandate.  These included decisions from Alabama, Florida, Nebraska, Arkansas, South Dakota, Idaho, and Louisiana.  The only court to reach a contrary conclusion was in South Carolina, where the state government had quickly fallen into line after the Supreme Court refused to review the 4th Circuit’s decision in the Virginia marriage equality case.  Given the birth certificate contretemps in Kansas, the case was clearly distinguishable.

Crabtree sympathized with the plaintiffs’ concern about “whether defendants will comply voluntarily with Obergefell without the judicial oversight that an injunction permits.”  His response to this concern was to provide that the court will maintain supervisory oversight for three years, which means that at the first sign that a government official in Kansas is denying equal treatment to a same-sex couple, direct application can be made to Judge Crabtree for relief without the need to run into state court and start a new lawsuit.  “The court finds that permanent injunctive relief could prevent future same-sex married persons from having to do what the Smiths had to do,” he wrote: “initiate a separate lawsuit and incur expenses to secure the equal treatment that Obergefell promises.”

In rejecting the defendants’ argument that Obergefell was a narrow ruling that did not address the issue of birth certificates for children born to same-sex couples, Crabtree pointed out that Justice Anthony Kennedy’s opinion for the Supreme Court specifically mentioned this issue!  “The Supreme Court found that the rights, benefits, and responsibilities of marital status include ‘taxation; inheritance and property rights; spousal privilege; hospital access; medical decision making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; health insurance; and child custody, support, and visitation rules.’”  By quoting from the Obergefell opinion, Crabtree made clear that Kansas may not impose any different treatment on same-sex couples regarding any of these issues without running afoul of Obergefell.

He also rejected the bizarre argument made by Kansas that one lesbian married couple that encountered birth certificate issues was not entitled to recognition of their marriage under Obergefell because they were married in Canada and the Full Faith and Credit Clause refers on to other states.  Judge Crabtree pointed out that Kansas’s own marriage recognition statute provides that “all marriages which would be valid by the law of the country in which the same are contracted, shall be valid in all courts and places in this state.”  If Kansas automatically recognizes different-sex marriages contracted in other countries, Obergefell’s equality requirement would mandate application of this rule to same-sex marriages.

“In sum,” wrote Crabtree, “defendants’ argument that Obergefell’s holding was narrow is unpersuasive,” and he quoted Justice Kennedy’s comment that a “slower, case-by-case determination of the required availability of specific public benefits to same-sex couples would deny gays and lesbians many rights and responsibilities intertwined with marriage.”  “Perhaps defendants will provide the voluntary compliance with Obergefell that they promise,” Crabtree wrote.  “But the court cannot assign plaintiffs’ constitutional rights to such uncertainty.  In short, defendants’ assurances of future compliance do not provide the reliability that those rights deserve.”

The last issue before the court was an award of attorneys’ fees to the plaintiffs. He ordered them to submit their fee bill promptly, and if Kansas disputes the amount (which they will likely do, since the state’s budget has been decimated by Governor Brownback’s unrealistic tax-cutting measures, which have led, among other things, to a crisis in school funding that caused a confrontation with the state’s Supreme Court), Judge Crabtree will address the issue promptly.

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