New York Law School

Art Leonard Observations

Lecture for Investiture as Robert F. Wagner Professor of Labor and Employment Law

Arthur S. Leonard, Lecture for Investiture as Robert F. Wagner Professor of Labor and Employment Law, New York Law School, April 26, 2017

A Battle Over Statutory Interpretation: Title VII and Claims of Sexual Orientation and Gender Identity Discrimination

I feel particularly honored to have my name associated with that of United States Senator Robert F. Wagner, Sr., NYLS Class of 1900, a hero of the New Deal whose legislative leadership gave us such important achievements as the National Labor Relations Act – commonly known among labor law practitioners as the Wagner Act – and the Social Security Act — laws that have shaped our nation for generations.   Senator Wagner was an immigrant who made an indelible mark on the United States. I hope that in some small way I have made a contribution that makes this named chair fitting.

I decided to select a topic for this talk that would bring together the two major areas of my teaching and scholarship: labor and employment law, and sexuality law. These intersect in the question whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination against an individual because of his or her sex, will be open to claims by job applicants and workers that they have suffered discrimination because of their sexual orientation or gender identity. We are at a decisive point in the judicial battle over that question, having achieved just weeks ago the breakthrough of our first affirmative appellate ruling on the sexual orientation question, following several years of encouraging developments on the gender identity question.

To understand the significance of this, we have to go back more than half a century, to the period after World War II when the modern American gay rights movement began stirring with the protests of recent military veterans against unequal benefits treatment, with the formation of pioneering organizations like the Mattachine Society in Los Angeles and New York and The Daughters of Bilitis in San Francisco, and with the vital behind-the-scenes work undertaken by gay scholars as the great law reform effort of the Model Penal Code was being launched by the American Law Institute. That postwar period of the late 1940s and 1950s played out alongside the rise of the Civil Rights Movement, for which the passage of the Civil Rights Act of 1964 was a signal achievement.

The early gay rights advocacy groups had their lists of goals, and some kind of protection against discrimination was prominent among them, but that task seemed monumental, at a time when there was no federal statute prohibiting employment discrimination of any kind. Until Illinois adopted the Model Penal Code in 1960, which effectively repealed criminal sanctions for private consensual gay sex, it was a crime in every state; a serious felony with long prison sentences in many. President Dwight Eisenhower issued an executive order shortly after taking office banning the employment of “homosexuals” and “sexual perverts” in the federal civil service. A major immigration law passed during the 1950s for the first time barred homosexuals from immigrating to the U.S. and qualifying for citizenship by labeling us as being “afflicted by psychopathic personality,” making us excludable on medical grounds. The military barred gay people from serving on similar grounds, and many lines of work that required state licensing and determinations of moral fitness systematically excluded LGBT people. To be an ‘openly gay’ lawyer or doctor was virtually unthinkable in the 1950s and on into the 1960s.

When Congress was considering the landmark civil rights bill, first introduced during the Kennedy Administration and shepherded into law by Lyndon Johnson, the idea that lesbians, gay men, bisexuals and transgender people might seek or obtain assistance rather than condemnation from Congress seemed a pipe dream. None of the legislators involved with the bill proposed protecting members of these groups from discrimination. Title VII, the provision of the bill dealing with employment discrimination, was limited in its original form to discrimination because of race or color, religion, or national origin. A floor amendment, introduced by Howard Smith of Virginia, a conservative Southern Democrat who was opposed to the bill, proposed to add “sex” to the prohibited grounds for discrimination. The amendment carried, the bill passed, and it went to the Senate where it was held up by one of the longest filibusters in history – at a time when filibusters involved unbroken floor debate by the opponents of a pending measure, with no vote on the merits until the Chamber was thoroughly exhausted and no opponent could be found to continue speaking. The leadership of the Senate, trying to avoid having the bill bottled up in committees headed by conservative senior Southern senators, had sent the bill direct to the floor with a tight limit on amendments. Thus committee reports that would have provided a source of legislative history on the meaning of “sex” in the bill are missing. The only floor amendment relating to the addition of “sex” to Title VII was to clarify that pay practices that were authorized under the Equal Pay Act, which had been passed the year before, would not be held to violate Title VII. The statute contained no definition of “sex,” and in the early years after its passage, the general view, held by the courts and the Equal Employment Opportunity Commission, was that the ban on sex discrimination simply prohibited employers from treating women worse than men – with little agreement about what that meant. In fact, in an early interpretive foray, the Supreme Court decided that Title VII did not prohibit discrimination against women because they became pregnant. The resulting public outcry inspired Congress to amend the statute to make clear that discrimination against a woman because of pregnancy or childbirth was considered to be discrimination because of sex.

Early attempts by gay or transgender people to pursue discrimination claims under Title VII all failed. The EEOC and the courts agreed that protecting people from discrimination because of their sexual orientation or transgender status was not intended by Congress. They embraced a literalistic “plain language” interpretation of Title VII, including a narrow biological understanding of sex.

But something began to happen as the courts considered a wider variety of sex discrimination claims. It became clear that a simplistic concept of sex would not be adequate to achieve the goal of equality of opportunity in the workplace. Legal theorists had been advancing the concept of a “hostile environment” as a form of discrimination, first focusing on the open hostility that many white workers showed to black, Latino and Asian workers in newly-integrated workplaces. During the 1970s the courts began to expand that concept to women who experienced hostility in formerly all-male workplaces as well. Lower federal courts were divided about whether such “atmospherics” of the workplace could be considered terms or conditions of employment when they didn’t directly involve refusals to hire or differences in pay or work assignments. Finally the Supreme Court broke that deadlock in 1986, holding in Meritor Savings Bank v. Vinson that a woman who experienced workplace hostility so severe that it could be said to affect her terms and conditions of employment would have a sex discrimination claim under Title VII, and subsequent cases clarified that the plaintiff did not have to show a tangible injury, although a finding that working conditions were so intolerable that a reasonable person would quit would clearly meet the test of a hostile environment. Some courts began to extend this reasoning to complaints by men, in situations where male co-workers subjected them to verbal and even physical harassment.

The Court also began to grapple with the problem of sex stereotypes, and how easily employers and co-workers could fall into stereotyped thinking to the disadvantage of minorities and women. Stereotypes about young mothers’ ability to balance work and home obligations, stereotypes about the ability of women to do physically challenging working, stereotypes about female longevity and the costs of retirement plans – all of these issues came before the Court and ultimately led it to expand the concept of sex discrimination more broadly than legislators of the mid-1960s might have imagined.

The key stereotyping case for building a theory of protection for sexual minorities was decided in 1989 – Price Waterhouse v. Hopkins. Ann Hopkins’ bid for partnership was denied because some partners of the firm considered her inadequately feminine. They embraced a stereotype about how a woman partner was supposed to look and behave. Hopkins, with her loud and abrasive manner and appearance, failed to conform to that stereotype. Communicating the firm’s decision to pass over her partnership application, the head of her office told her she could improve her chances for the next round by dressing more femininely, walking more femininely, toning down her speech, wearing make-up and jewelry, having her hair styled. Her substantial contributions to the firm and her leadership in generating new business counted for little, when decision-makers decided she was inadequately feminine to meet their expectations. In an opinion by Justice William J. Brennan, Jr., the Court accepted Hopkins’ argument that allowing such considerations to affect the partnership decision could be evidence of a prohibited discriminatory motivation under Title VII. The Court’s opinion embraced the idea that discrimination because of “gender,” not just discrimination because of biological sex, came within the scope of Title VII’s prohibition. The statutory policy included wiping away gender stereotypes that created barriers to equal opportunity for women in the workplace.

Although Ann Hopkins was not a lesbian and nothing was said about homosexuality in her case, the implications of the ruling became obvious over time as federal courts dealt with a variety of stereotyping claims. A person who suffered discrimination because she did not appear or act the way people expected a woman to appear or act was protected, and that sounded to lots of people like a description of discrimination against transgender people and some – but perhaps not all – lesbians, gay men and bisexuals. The argument seemed particularly strong when an employer discriminated against a person who was hired appearing and acting as a man and then began to transition to living life as a woman.

At the same time, legal academics had begun to publish theoretical arguments supporting the idea that discrimination against gay people was a form of sex discrimination. Among the earliest were Professor Sylvia Law of New York University, whose 1988 article in the Wisconsin Law Review, titled “Homosexuality and the Social Meaning of Gender,” suggested that anti-gay discrimination was about “preserving traditional concepts of masculinity and femininity. Law’s pioneering work was quickly followed by the first of many articles by Andrew Koppelman, first in a student note he published in the Yale Law Journal in 1988 titled “The Miscegenation Analogy: Sodomy Law as Sex Discrimination,” later in his 1994 article in the New York University Law Review titled “Why Discrimination Against Lesbians and Gay Men is Sex Discrimination.” Both Koppelman, now a professor at Northwestern University, and Law proposed theoretical arguments for treating anti-gay discrimination as sex discrimination.

Seizing upon the Price Waterhouse precedent, transgender people and gay people began to succeed in court during the 1990s by arguing that their failure to conform to gender stereotypes was the reason they were denied hiring or continued employment, desirable assignments or promotions. A strange dynamic began to grow in the courts, as judges repeated, over and over again, that Title VII did not prohibit discrimination because of sexual orientation or gender identity, as such, but that it did prohibit discrimination against a person because of his or her failure to conform to gender stereotypes and expectations, regardless of the plaintiff’s sexual orientation. Many of the courts insisted, however, that there was one gender stereotype that could not be the basis of a Title VII claim – that men should be attracted only to women, and women should be attracted only to men. To allow a plaintiff to assert such a claim would dissolve the line that courts were trying to preserve between sex stereotyping claims and sexual orientation or gender identity discrimination claims. Decades of past precedents stood in the way of acknowledging the unworkability of that line.

Ten years after the Price Waterhouse decision, the Supreme Court decided another sex discrimination case, Oncale v. Sundowner Offshore Services, with an opinion by Justice Antonin Scalia that helped to fuel the broadening interpretation of Title VII. The 5th Circuit Court of Appeals had ruled that a man who is subjected to workplace harassment of a sexual nature by other men could not bring a hostile environment sex discrimination claim under Title VII. The court of appeals reasoned that Congress intended in 1964 to prohibit discrimination against women because they were women or men because they were men, and that such a limited intent could not encompass claims of same-sex harassment, which would be beyond the expectations of the legislators who passed that law. In reversing this ruling, Justice Scalia, who was generally skeptical about the use of legislative history to interpret statutes, wrote for the Court that the interpretation of Title VII was not restricted to the intentions of the 1964 Congress. While conceding that same-sex harassment was not one of the “evils” that Congress intended to attack by passing Title VII, he wrote:

“Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits discrimination because of sex in employment. This must extend to sex-based discrimination of any kind that meets the statutory requirements.”

Thus, as our collective, societal understanding of sex, gender, sexuality, identity and orientation broadens, our concept of sex discrimination as prohibited by Title VII also broadens. With the combined force of Price Waterhouse and Oncale, some federal courts began to push the boundaries even further during the first decade of the 21st century.

By the time the Equal Employment Opportunity Commission ruled in 2012 in Macy v. Holder, a federal sector sex discrimination case, that a transgender plaintiff could pursue a Title VII claim against a division of the Justice Department, its opinion could cite a multitude of federal court decisions in support of that conclusion, including two Title VII decisions by the 6th Circuit Court of Appeals involving public safety workers who were transitioning, and a 2011 ruling by the 11th Circuit Court of Appeals that a Georgia state agency’s discrimination against an employee because she was transitioning violated the Equal Protection Clause as sex discrimination. There were also federal appellate rulings to similar effect under the Equal Credit Opportunity Act and the Violence against Women Act, as well as numerous trial court rulings under Title VII. So the EEOC was following the trend, not necessarily leading the parade, when it found that discrimination against a person because of their gender identity was a form of sex discrimination.

After the Supreme Court’s landmark ruling in Lawrence v. Texas in 2003, striking down a state sodomy law under the 14th Amendment, and further rulings in 2013 and 2015 in the Windsor and Obergefell cases, leading to a national right to marry for same-sex couples, the persistence by many courts in asserting that Title VII did not prohibit sexual orientation discrimination appeared increasingly archaic. Just weeks after the Obergefell decision, the EEOC issued another landmark ruling in July 2015, David Baldwin v. Anthony Foxx, reversing half a century of EEOC precedent and holding that sexual orientation discrimination claims were “necessarily” sex discrimination claims covered by Title VII. The Commission ruled that a gay air traffic controller could bring a Title VII claim against the Department of Transportation, challenging its refusal to hire him for a full-time position at the Miami air traffic control center because of his sexual orientation.

Building on the Price Waterhouse, Oncale and Macy decisions, the EEOC embraced several alternative theories to support this ruling. One was the now well-established proposition that an employer may not rely on “sex-based considerations” or “take gender into account” when making employment decisions, unless sex was a bona fide occupational qualification – a narrow statutory exception that is rarely relevant to a sexual orientation or gender identity case.

“Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms,” wrote the EEOC. “Sexual orientation as a concept cannot be defined or understood without reference to sex. Sexual orientation is inseparable from and inescapably linked to sex and, therefore, allegations of sexual orientation discrimination involve sex-based considerations.” By the summer of 2015, the agency was able to cite several federal trial court decisions applying these concepts in particular cases.

Another theory was based on the associational discrimination theory. Courts had increasingly accepted the argument that discrimination against a person because he or she was in an interracial relationship was discrimination because of race. The analogy was irresistible: Discriminating against somebody because they are in a same-sex relationship must be sex discrimination, because it involved taking the employee’s sex into account. Denying a job because a man is partnered with a man rather than with a woman means that his sex, as well as his partner’s sex, was taken into account by the employer in making the decision.

Finally, the Commission embraced the stereotyping theory that some courts had refused to fully embrace: that sexual orientation discrimination is sex discrimination because it necessarily involves discrimination based on gender stereotypes, not just those involving appearance, mannerisms, grooming, or speech, but also stereotypes about appropriate sexual attractions. Quoting a Massachusetts federal trial court ruling, the agency wrote, “Sexual orientation discrimination and harassment are often, if not always, motivated by a desire to enforce heterosexually defined gender norms. . . The harasser may discriminate against an openly gay co-worker, or a co-worker that he perceives to be gay, whether effeminate or not, because he thinks, ‘real’ men should date women, and not other men.” Professor Law’s theoretical proposition of 1988 was now surfacing in court and agency rulings a quarter century later.

The EEOC also rejected the view that adopting this expanded definition of sex discrimination required new congressional action, pointing out that the courts had been expanding the definition of sex discrimination under Title VII continually since the 1970s, with minimal intervention or assistance from Congress.

Since 2015 the issue of sexual orientation discrimination under Title VII has risen to the level of the circuit courts of appeals. In most of the circuits, there are precedents dating back decades holding that sexual orientation claims may not be litigated under Title VII. These precedents are softened in some circuits that have accept discrimination claims from gay men or lesbians who plausibly asserted that their visible departure from gender stereotypes provoked discrimination against them. But many of these appeals courts have strained to draw a line between the former and the latter, and have rejected stereotyping claims where they perceived them as attempts to “bootstrap” a sexual orientation claim into Title VII territory.

Ironically, one judge who emphatically rejected such a case several years ago with the bootstrapping objection, Richard Posner of the 7th Circuit, is the author of a concurring opinion in this new round of circuit court rulings in which he argues that it is legitimate for federal courts to “update” statutes without waiting for Congress in order to bring them into line with current social trends. This was part of the 7th Circuit’s en banc ruling in Kimberly Hively v. Ivy Tech Community College, the April 4, 2017, decision that is the first by a federal appeals court to embrace all aspects of the EEOC’s Baldwin decision and hold that a lesbian could pursue a sexual orientation claim under Title VII. Posner’s argument echoes one made decades ago by Guido Calabresi, then a professor at Yale, now a judge on the 2nd Circuit, in a series of lectures published as a book titled “A Common Law for the Age of Statutes,” in which he argued that legislative inertia would justify courts in updating old statutes to meet contemporary needs. Although Posner did not cite Calabresi’s book, his argument is much the same. He quoted both Justice Scalia’s statement from Oncale and an earlier iteration of similar sentiments in an opinion by Justice Oliver Wendell Holmes from 1920, in which Holmes wrote: “The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”

The federal circuit courts follow the rule that when a three-judge panel of the circuit interprets a statute, it creates a binding circuit precedent which can be reversed only by the full bench of the court in an en banc ruling, or by the Supreme Court, or by Congress changing the statute. The Hively ruling reversed a three-judge panel decision that had rejected the plaintiff’s Title VII claim based on prior circuit precedents. The vote was 8-3. Incidentally, 5 of the judges in the 8-member majority were appointees of Republican presidents. The employer in that case quickly announced that it would not seek Supreme Court review, but this ruling creates a split among the circuit courts, so it is only a matter of time before the Supreme Court receives a petition asking for a definitive interpretation of Title VII on this question.

The 7th Circuit opinion by Chief Judge Diane Wood accepted all of the EEOC’s theories from the Baldwin decision. Judge Wood concluded that “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’” “We hold that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”

Dissenting Judge Diane Sykes criticized the majority for deploying “a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion.” Here the battle is joined. For the majority, it is appropriate to trace the development of case law over decades, treating the concept of sex discrimination as evolving. For Judge Posner, concurring, it is legitimate for the court to set aside the pretense of ordinary interpretation and to “update” an old statute to reflect contemporary understandings. And for Judge Sykes, these are both illegitimate because it violates the division of authority between the legislature and the courts to adopt an “interpretation” that would be outside the understanding of the legislators who enacted the statute.

Now the scenario is playing out in other circuits. In recent weeks, the Atlanta-based 11th Circuit and the New York-based 2nd Circuit have issued panel rulings refusing to allow sexual orientation discrimination claims under Title VII. The panels did not consider the issue afresh and decided to reaffirm the old rulings on the merits, but rather asserted that they were powerless to do so because of the existing circuit precedents. In both of the cases decided in March, Evans v. Georgia Regional Hospital and Christiansen v. Omnicom Group, the panels sent the cases back to the trial court to see whether they could be litigated as sex stereotyping cases instead of sexual orientation cases. But one judge dissented in the 11th Circuit, arguing that an old pre-Price Waterhouse precedent should not longer be treated as binding. The 2nd Circuit panel rejected the trial judge’s conclusion that because the gay plaintiff’s complaint included evidence that his treatment was tainted by homophobia he could not assert a sex stereotyping claim, and two members of the panel wrote a concurring opinion virtually accepting the EEOC’s view of the matter and suggesting that the circuit should reconsider the issue en banc.. In both cases, the panels took the position that sex stereotyping claims could be evaluated without reference to the sexual orientation of the plaintiff. And, in both of these cases, lawyers for the plaintiffs are asking the circuits to convene en banc benches to reconsider the issue, as a preliminary to seeking possible review in the Supreme Court. A different 2nd Circuit panel has also issued a ruling where sex stereotyping of the sort that is actionable in the 2nd Circuit is not part of the case, and counsel in that case is also filing a petition for en banc review.

One or more of these petitions is likely to be granted. While we may see more en banc rulings in favor of allowing sexual orientation discrimination claims, at some point a new circuit split may develop, leading inevitably to the Supreme Court. Or the issue could get to the Supreme Court by an employer seeking further review, since older rulings in other circuits still present the kind of circuit splits that the Supreme Court tries to resolve.

That leads to the highly speculative game of handicapping potential Supreme Court rulings. Neil Gorsuch’s confirmation restores the ideological balance that existed before Justice Scalia’s death. The Court as then constituted decided the historic same-sex marriage cases, Windsor and Obergefell, with Justice Kennedy, a Republican appointee, writing for the Court in both cases, as well as in earlier gay rights victories, Romer v. Evans and Lawrence v. Texas. These opinions suggest a degree of empathy for gay litigants that might lead Kennedy to embrace an expansive interpretation of Title VII. He is part of a generation of appellate judges appointed by Ronald Reagan during the 1980s who made up half of the majority in the recent 7th Circuit ruling: Richard Posner, Frank Easterbrook, Joel Flaum, and Kenneth Ripple. Another member of that majority, Ilana Rovner, was appointed by Reagan’s successor, George H.W. Bush. This line-up underlies optimism that Kennedy might join with the Clinton and Obama appointees on the Supreme Court to produce a five-judge majority to embrace the EEOC’s interpretation. Such optimism may also draw on Kennedy’s decisive rejection of the argument that legal rules are frozen at the time of their adoption and not susceptible to new interpretations in response to evolving social understandings. This was the underlying theme of his opinions in the four major gay rights decisions.

Since the 1970s supporters of gay rights have introduced bills in Congress to amend the federal civil rights laws to provide explicit protection for LGBT people. None of those attempts has succeeded to date. If the judicial battle reaches a happy conclusion, those efforts might be rendered unnecessary, although there is always a danger in statutory law of Congress overruling through amendment, but that seems unlikely unless the Republicans attain a filibuster-proof majority in the Senate.

On that optimistic note, I conclude with thanks for your attention, and I am happy to answer questions now.

 

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Appeals Courts Issue New LGBT-Related Rulings

Several appellate courts have issued significant LGBT-related rulings in recent days. Here is a brief summary of the new developments.

Roy Moore Loses Reinstatement Appeal before “Alabama Supreme Court”

The Alabama Supreme Court normally consists of seven justices elected by the people of the state, but when Roy Moore, who was suspended as chief justice by order of the state’s Court of the Judiciary on September 30, 2016, sought to exercise his right to appeal that ruling to the state’s Supreme Court, all of the other justices recused themselves. What to do?

The Supreme Court invoked a special procedure to authorize the Acting Chief Justice (who was appointed to occupy Moore’s seat for the duration of his elective term) to “participate” with then-Governor Bentley (who has since resigned because of a sex scandal) to create a substitute supreme court to consider Moore’s appeal. They assembled a list of all the retired judges in the state who were deemed “capable of service,” then conducted a lottery to compile a list of fifty potential judges, with the first seven names drawn to make up this special substitute version of the court unless one or more recused themselves or were disqualified for some other reason, in which case they would go back to the list of 50 until they had a full bench.

Moore was suspended because of his activities in opposition to marriage equality. After U.S. District Judge Callie Granade ruled on January 23, 2015, that the Alabama Marriage Amendment and the Alabama Marriage Protection Act, both of which prohibited formation or recognition of same-sex marriages, were unconstitutional, Moore sprang into action.  He undertook various efforts to block implementation of Judge Granade’s order by denouncing it as illegitimate, then encouraging and later directing the state’s probate judges to refrain from issuing marriage licenses to same-sex couples.  As chief justice, Moore both presided over the Supreme Court and acted as the administrative head of the state court system, in which capacity he could issue directives to lower court judges.

As the marriage equality issue rose through the courts to the U.S. Supreme Court’s June 26, 2015, Obergefell v. Hodges ruling, finding a federal constitutional right for same-sex couples to marry, Moore remained outspokenly opposed, making every effort both publicly and behind the scenes to stave off the evil day when same-sex marriage might be fully accepted in Alabama. Although he recused himself from some of the Supreme Court’s actions after having issued his initial public denunciations of Granade’s rulings, he ultimately decided to participate in the court’s decision in 2016 to dismiss all pending proceedings and allow the probate judges to do their duty. But Moore wrote separately from the rest of the court, first to justify his decision not to recuse himself despite his prior actions and public statements, and then to inveigh against the federal constitutional ruling, reiterating his view that Alabama was entitled as a sovereign state to reject federal interference with its marriage laws.

This led to allegations that he was violating several provisions of the ethical code for judges, and charges were filed against him before the Court of the Judiciary, which found a string of ethical violations and suspended him from office.

In this appeal, Moore challenged the jurisdiction of the Court of the Judiciary to make its decision and contended that he had not violated any of the judicial ethical rules. He also contended that his suspension, which would run for over two years until the end of his elective term, was not warranted and was unduly long: far longer than any past disciplinary suspension of any sitting judge.

The specially-constituted substitute Supreme Court disagreed with Moore on every point, announcing on April 19 its determination, unanimously, that “the charges were proven by clear and convincing evidence and there is no indication that the sanction imposed was plainly and palpably wrong, manifestly unjust, or without supporting evidence,” so the court “shall not disturb the sanction imposed.”

This might not be the end for Moore as a “public servant,” however. Earlier in his career he had been ejected from the state supreme court for defying a federal court order to remove a 10 Commandments Monument he had installed in the lobby of the Supreme Court building.  He bided his time and eventually came back and won election to a new term as Chief Justice.  On April 26, he announced that he would enter the contest for the U.S. Senate seat that was vacated by Jeff Sessions when he became Trump’s Attorney General.  Former Governor Bentley had appointed the state’s attorney general, Luther Strange, to fill the seat pending a special election, and Strange has already announced he will be a candidate for the Republican nomination.  The deadline for candidates to qualify for the primary is May 17 and the party primaries will be held on August 15.  If no candidate wins an outright majority for the Republican nomination, a run-off will be held September 26, and the general election is December 12.

Over $600,000 Awarded to Victorious Lawyers in Texas Marriage Equality Case

In an appeal that has been pending before a panel of the 5th Circuit Court of Appeals for more than a year, the court decided to reject an attempt by Texas Governor Greg Abbott, Attorney General Ken Paxton, and Commissioner John Hellerstedt of the Department of State Health Services to win a reduction of the large attorneys’ fees and costs awarded by U.S. District Judge Orlando Garcia to the victorious attorneys who represented the plaintiffs in the Texas marriage equality case, DeLeon v. Perry (now titled DeLeon v. Abbott).

Two same-sex couples filed suit in 2013 against then-governor Rick Perry and other state officials seeking the right to marry and to win recognition of same-sex marriages performed out of state. In February 2014 Judge Garcia ruled in favor of the plaintiffs, but the decision was stayed as the state appealed to the 5th Circuit.  That court put off oral arguments until shortly before the Supreme Court announced that it would consider appeals in marriage cases from the 6th Circuit.  Then the 5th Circuit delayed ruling until after the Supreme Court announced its Obergefell decision, which made the 5th Circuit appeal purely academic.  That court quickly affirmed Judge Garcia’s decision, making the plaintiffs “prevailing parties” who were entitled to seek an award of attorneys’ fees and costs.

Judge Garcia awarded fees of $585,470.30 and costs of $20,202.90, more than $600,000 in all. In December 2015, the new line-up of official state defendants filed their appeal.  The 5th Circuit panel issued a brief opinion upholding Garcia’s award, emphasizing that the trial judge has “broad discretion” to award fees and costs if the judge “provides a concise but clear explanation for its reasons for the fee award.”    In this case, the court found that this standard had been met, but one member of the court, Circuit Judge Jennifer Walker Elrod, issued a dissent on three points.

She objected first to awarding fees for time spent opposing a motion by an anti-gay group to intervene as a co-defendant so that they could make arguments that the state was unlikely to make in defending the statute. Although the plaintiff’s lawyers were successful in beating back the intervention effort, Judge Elrod thought the state should not be required to pay them fees for doing so, since the state had not supported the intervention effort and was not the “losing party” on that issue.

She also objected to awarding fees for time that the attorneys spent “interacting with the media.” Plaintiffs’ lawyers in controversial public interest cases frequently spend time cultivating the media to win favorable coverage of the litigation and help build public support for the resulting court decision.  That was a key part of the litigation strategy in the marriage equality cases, and arguably the successful media cultivation helped to move public opinion so that the ultimate Supreme Court decision and its implementation did not arouse widespread opposition.  But Elrod argued that awarding fees for that time was “improper.”  “Plaintiffs have offered no explanation for how the media-related tasks included in the fee award were directly and intimately related to their successful representation, or were aimed at achieving their litigation goals,” she wrote.  As such, the state should not have to pay for them.

Finally, she objected to awarding fees for much of the time spent by the plaintiffs’ attorneys in recruiting and assisting various amicus curiae (so-called “friends of the court’) to file briefs supporting the plaintiffs in the case. She would have denied fees for such time on the theory, articulated by the 11th Circuit in a prior case, that because “amici are not entitled to attorneys’ fees as a ‘prevailing party,’ it would not allow this result to be changed ‘by the simple expedient of having counsel for a party do some or all of the amicus work.’’”  She would, however, agree to order the state to pay for time that plaintiffs’ attorneys spent reviewing the amicus briefs after they were filed, because the issues and arguments raised by amici might come into play during the trial or appeals of the case.  But she rejected the view that soliciting amicus parties and helping the amici to prepare their briefs was part of the work of representing the plaintiffs.  This seems the least plausible of her objections, since lawyers consider the presentation of forceful amicus briefs, carefully coordinated to avoid inconsistent arguments and assure coverage of all potential points of argument, to be an integral part of their strategy to educate the court and provide significant supplementation to the evidentiary record.  The courts of appeals and the Supreme Court have cited amicus briefs in their opinions in favor of marriage equality, showing that they are not merely peripheral window dressing in the effort to achieve the plaintiffs’ litigation goals.

Judge Elrod stated her objections in terms of concepts rather than dollar amounts, not suggesting how much she would have reduced the fee award, and the per curiam opinion does not respond to any of her arguments. The state could seek Supreme Court review, and Elrod’s partial dissent implicitly encouraged this by contending that some of the points she raised involved departures from 5th Circuit precedent or created splits between the 5th Circuit and other Circuit courts on the basis for awarding fees to prevailing parties.  The Supreme Court is rarely interested in cases about attorneys’ fees, but a circuit split in a high profile case might catch its attention.

2nd Circuit Panels Follow Christiansen Precedent in Title VII Sexual Orientation Cases

On March 27, a three-judge panel of the New York-based 2nd Circuit Court of Appeals released a ruling in Christiansen v. Omnicom Group, holding that prior 2nd Circuit decisions blocked any reconsideration by the panel of the question whether sexual orientation discrimination claims can be litigated under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of sex.  In an unusual move, two of the judges on the panel concurred in an opinion virtually accepting the argument that the circuit should reconsider and change its position on this question if presented with a petition for rehearing before the full bench of the circuit.

The 2nd Circuit has eleven active judges, of whom seven were appointed by Presidents Clinton or Obama, the rest by Republican presidents, holding out hope that an en banc review could lead to a favorable circuit precedent.  Although the panel ruled against Matthew Christiansen’s appeal on the sexual orientation question, it sent the case back to the district court to consider his claim of gender-stereotyping, which the Circuit may allow under the rubric of sex discrimination.

Since then, two different three-judge panels of the 2nd Circuit have issued decisions in other cases presenting the same question: whether sexual orientation discrimination claims are covered by Title VII.  In both cases, the courts found themselves bound by Christiansen and the prior precedents to reject a sexual orientation discrimination claim.

On April 18, a panel ruled in Zarda v. Altitude Express, per curiam, that it was bound by circuit precedent to uphold the trial court’s dismissal of a sexual orientation discrimination claim.   The case involved a gay male skydiver and instructor, since deceased, who was in no way gender-nonconforming – other than his failure to conform with the stereotype that men should be sexually attracted only to women, which the 2nd Circuit does not now recognize as the kind of stereotype that can give rise to a sex discrimination claim.

On April 25, a different panel ruled in Daniel v. T&M Protection Resources, a hostile environment case, that the district court correctly allowed Otis Daniel to maintain his sex discrimination claim, because the court found that the verbal harassment to which Daniel was subjected by his male supervisor could support a gender stereotyping claim. His supervisor “frequently called him ‘homo’ and told him to ‘Man up, be a man.”  The court pointedly observed that the case could not be litigated as a sexual orientation discrimination case because of prior 2nd Circuit rulings, including Zarda and Christiansen.

Attorneys for Christiansen (Susan Lask) and for Zarda’s estate executors (Gregory Antollino) have both indicated that they are filing petitions for en banc rehearing before the full 2nd Circuit.

In addition, Lambda Legal filed a petition on March 31 with the Atlanta-based 11th Circuit Court of Appeals seeking an en banc rehearing in Evans v. Georgia Regional Hospital, in which a three-judge panel voted 2-1 on March 10 to reject a sexual orientation discrimination claim under Title VII.  The panel sent the case back to a trial judge for possible litigation under a gender stereotyping theory.  Eight of the eleven active judges on the 11th Circuit are appointees of Clinton or Obama.

The 2nd and 11th Circuits both had many vacancies filled during President Obama’s first term, tipping the ideological balance of both circuits in a much more liberal direction, leaving hope that they might follow the lead of the Chicago-based 11th Circuit, which on April 4 became the first federal appeals court to ruled that sexual orientation claims are covered by Title VII, in a case brought by lesbian college instructor Kimberly Hively, represented before the appeals court by Lambda Legal.  The issue might be brought to the Supreme Court by a disappointed plaintiff or employer, depending how the courts rule on these continuing appeals.

 

 

 

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Manhattan Court Finds Former Same-Sex Partner of Adoptive Mother Lacks Standing to Contest Custody of the Child

Manhattan State Supreme Court Justice Frank P. Nervo ruled on April 11 that the former same-sex partner of a woman who adopted a child from Africa after the women’s relationship had ended could not maintain a lawsuit seeking custody and visitation with the child based on the relationship that she developed with the child after the adoption took place.  K. v. C., 2017 WL 1356080, 2017 NY Misc LEXIS 1624 (N.Y. Sup. Ct., N.Y. Co.).  In one of the first applications of the New York Court of Appeals’ historic August 2016 ruling in Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, Justice Nervo found that plaintiff Kelly Gunn had failed to show by “clear and convincing evidence” that she and her former partner, Circe Hamilton, had agreed to adopt and raise the child together, which would have brought the case within the conceptual sphere, if not the precise holding, of the Court of Appeals’ recent precedent. Gunn has announced that she will appeal the ruling to the Appellate Division, First Department, in Manhattan, and seek an extension of the twenty-day stay that Justice Nervo put on his ruling.

Justice Nervo’s application of the recent precedent was complicated by the limitations of that prior ruling.  In that case, which was a consolidation of two separate cases, both cases involved donor insemination situations where the former partners had planned for and carried out the birth of a child within the context of their relationship, with an explicit mutual agreement that they would both be parents of the child, followed by years of living together with the child before the women separated.  This new case posed different facts.

In its Brooke S.B. ruling, written by the late Judge Sheila Abdus-Salaam, the Court of Appeals had cautiously abandoned its prior bright line test, under which a biologically-unrelated same-sex co-parent was treated as a legal stranger without standing to seek custody or visitation, making an exception for situations where a parental relationship was created by mutual consent within the context of donor insemination.  “Because we necessarily decide these cases based on the facts presented to us,” wrote Judge Abdus-Salaam in that case, “it would be premature for us to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement.  Accordingly, we do not now decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody.”

Judge Nervo’s opinion referred to the parties by first initials, but press reporting after his opinion was released included their names.

Gunn and Hamilton “were in a relationship from 2007 to 2009, entering into a cohabitation agreement on May 18, 2007,” wrote the judge.  “It is undisputed that during their relationship, they entered into a plan to adopt and raise a child together.  It is also undisputed that the parties’ relationship deteriorated over time and they entered into a separation agreement on May 28, 2010.”

About ten months later, Hamilton learned that a child was available for adoption in Ethiopia and began to take the steps to complete the adoption.  Gunn claims that despite their separation, she facilitated the adoption through a substantial monetary payment as part of their separation agreement, which made it possible for Hamilton to “establish a home sufficient to pass inspection by the adoption agency.”  She also arranged a business trip to be able to travel with Hamilton and the child, Abush, on the London-to-New York part of Hamilton’s trip home with the child after obtaining custody of him in Ethiopia.  Gunn also presented evidence of her continuing involvement with the child after the return to New York, although Gunn conceded that “her involvement with the child was limited because [Hamilton] would disapprove.”

On the other hand, Hamilton argued that the couples’ plan to adopt a child and raise the child together “dissolved contemporaneously with the dissolution of the parties’ relationship.”  She argued that Gunn’s involvement after Hamilton adopted the child was “only a supportive role as a close friend” of Hamilton and the child.  She contended that Gunn was “merely a godmother,” not a parent.  She also argued that she did not “encourage, facilitate or condone a parental relationship” between Gunn and the boy, who is now seven years old.

Thus, this case did not precisely map the factual contours approved by the Court of Appeals in the Brooke S.B. case.  In attempting to adapt that ruling and apply it to these facts, Judge Nervo interpreted the earlier case to extend to an adoption situation, but only if the plaintiff could show, by clear and convincing evidence, that the parties had planned to adopt the child and raise it together and carried out their plan within the context of their continuing relationship.  While these parties had such a plan prior to their separation, he found, in order to meet this test, the plan had to have continued through the adoption process and the raising of the child, which he held did not occur in this case.

The timing of Gunn’s lawsuit is interesting.  Although Hamilton adopted Abush in 2011, Gunn did not file her lawsuit until September 1, 2016, two days after the Court of Appeals decided Brooke S.B.  Prior to that decision, of course, her suit would have been blocked by the precedent that the Court of Appeals overruled, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991).  In an April 20 article about the case, the New York Times reported that Gunn went to court “to prevent her former partner . . . from moving to her native London” with the child.  Gunn sought immediate relief when filing her complaint, which first went to Justice Matthew F. Cooper, who issued an interim order restraining Hamilton from relocating Abush to London while the case was pending.  The matter was then assigned to Justice Nervo, who scheduled a hearing to begin just a week later, on September 8.  The hearing continued sporadically until February 16, 2017. Hamilton had responded to the complaint on September 6 with a motion to dismiss the case.  Gunn finished presenting her witnesses on November 23.  After evaluating Gunn’s evidence, Judge Nervo denied Hamilton’s motion to dismiss, finding that Gunn’s evidence, as yet uncontradicted, had established what lawyers call a prima facie case, a basis for concluding that she had a potential claim to parental standing.

However, after hearing Hamilton’s evidence, which ended on February 16, Justice Nervo concluded the factual and legal issues against Gunn, granted Hamilton’s motion to dismiss, denied Gunn’s motion and vacated the interim orders that had been issued by Justice Cooper. He also dissolved interim orders that had enabled Gunn to continue seeing the child while the case was ongoing.  However, recognizing that Gunn would likely appeal and could have grounds to argue that the Court of Appeals’ precedent should be given a broader reading, Nervo stayed his order for twenty days.  A prompt appeal and petition to the Appellate Division to preserve the interim relief might preserve the status quo while an appeal is considered.

Justice Nervo’s opinion includes a lengthy summary of the testimony presented by both parties, which led the judge to conclude that Gunn had fallen short of showing by clear and convincing evidence that she had a parental relationship with the child based on a mutual agreement with Hamilton.  “Upon the presentation of the evidence of both parties over 36 days of testimony, constituting a hearing transcript of 4,738 pages, 215 exhibits on behalf of petitioner and 126 exhibits on behalf of respondent, the court finds the petitioner has on numerous occasions stated that she did not want to be a parent and gave no indication to either respondent or third parties that she either wanted this role or acted as a parent,” wrote Nervo.  “Therefore, she has failed to establish by clear and convincing evidence that she has standing as a parent under Domestic Relations Law Section 70, as established In the Matter of Brooke S.B. v. Elizabeth A.C.C.”

The court never addressed the best interest of the child, usually a key finding in a custody dispute, because in order to put that issue into play, a plaintiff has first to establish her status as a parent or, under New York cases, show extraordinary circumstances in order to invoke the court’s authority to require a biological or adoptive parent to engage in a contest about the best interest of her child.  Part of Gunn’s argument on appeal will likely be that Brooke S.B. has implicitly overruled the extraordinary circumstances requirement in cases involving same-sex partners who had jointly planned to raise a child together, even if the case does not involve donor insemination or a continuous relationship of the women prior to the adoption.

Reading through Judge Nervo’s summary of the evidence, which is unlikely to be upset on appeal, as appellate courts generally refrain from second-guessing the factual findings of trial judges in custody and visitation cases unless there is an appearance of substantial bias against a party or failure to account for significant evidence in the hearing record, it sounds like he concluded that although Gunn had formed a relationship with Abush and there were some indications that it was deeper than a mere acquaintanceship or babysitter kind of relationship, on the other hand there was significant evidence that Gunn had expressed reservations during her relationship with Hamilton about the adoption plans and had never directly communicated to Hamilton after the adoption that she desired to take on the responsibility of being a co-parent of the child.  Since the Court of Appeals emphasized in its decision that standing would arise from a mutual agreement between the child’s biological or adoptive parent and her same-sex partner, and there was no sign of such an agreement at or after the time of this adoption, the case could not be made to fit precisely into the Court of Appeals precedent.

On the other hand, it may be open to the Appellate Division to take a different view, especially since the Court of Appeals disclaimed making a ruling on factual situations different from those in the cases it was deciding.  Clearly, the Court of Appeals rejected the bright line test of the old Alison D. v. Virginia M. case.  Whether it will countenance a broader exception to the standing rules than it carved out in Brooke S.B. is uncertain.

Gunn’s attorney, Nancy Chemtob, told the New York Times, “I believe that this decision doesn’t follow Brooke.”  The Times reported that “Bonnie Rabin, one of Ms. Hamilton’s lawyers, said the ruling should allay concerns that a trusted caretaker could suddenly claim parental rights under the state’s expanded definition of parentage.  ‘That would be scary to parents,’ she said.”

 

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Pennsylvania Superior Court Recognizes Pre-2005 Same-Sex Common Law Marriage

 Pennsylvania abolished common-law marriage by statute effective January 24, 2005, but provided that the statute should not be “deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid.” After the U.S. Supreme Court’s Obergefell v. Hodges decision in 2015, holding that same-sex couples have a constitutional right to marry, implicitly affirming Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014), a trial court decision that was not appealed by the state, numerous trial judges in Pennsylvania have issued declaratory judgments recognizing common law marriages of same-sex couples that were contracted prior to January 1, 2005.  The outlier was a July 8, 2016, order by Judge John D. McBride of the Beaver County Court of Common Pleas in In re Estate of Stephen Carter, in which Judge McBridge refused to affirm an alleged common law marriage contracted in 1996 or 1997 by Carter and his surviving spouse, Michael Hunter, in Philadelphia.  On April 17, a unanimous three-judge panel of the Pennsylvania Superior Court provided the first appellate ruling in the state granting retroactive recognition to a same-sex common law marriage, reversing the Beaver County court in response to Hunter’s appeal, 2017 PA Super 104.

Writing for the court, Judge H. Geoffrey Moulton, Jr., found that McBride erred on both of the grounds of decision. The first was that because same-sex couples did not have the right to marry in Pennsylvania until the Whitewood decision in 2014, the two men could not have contracted a common law marriage prior to January 1, 2005.  The second was based on McBride’s finding that Hunter had at best established that the men intended to marry when it became legal to do so in Pennsylvania, which he deemed insufficient to establish a common law marriage, despite the evidence that the men exchanged rings, regarded themselves as spouses, lived together, and were regarded as spouses by members of their families.

Judge Moulton found that the trial court’s first ground had misconceived the effect of Whitewood and the U.S. Supreme Court’s subsequent rulings in U.S. v. Windsor and Obergefell v. Hodges.  “Together,” he wrote, “Windsor, Whitehead, and Obergefell teach that same-sex couples have precisely the same capacity to enter marriage contracts as do opposite-sex couples, and a court today may not rely on the now-invalidated provisions of the Marriage Law to deny that constitutional reality.  Consequently, because opposite-sex couples in Pennsylvania are permitted to establish, through a declaratory judgment action, the existence of a common law marriage prior to January 1, 2005, same-sex couples must have that same right.  To deprive Hunter of the opportunity to establish his rights as Carter’s common law spouse, simply because he and Carter are a same-sex couple, would violate both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.”

Turning to the trial court’s second ground, Judge Moulton conceded that even prior to its legislative abolition, common law marriage had been difficult to prove, because of the insistence by Pennsylvania courts that the proponent of recognizing the marriage prove by a preponderance of the evidence that the purported spouses had expressed to each other a present intention to be married. He quoted from the most recent Pennsylvania Supreme Court ruling, Staudenmayer v. Staudenmayer, 714 A. 2d 1016 (Pa. 1998), where the court stated: “A common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that.”  However, continued the Supreme Court, “Because common law marriage cases arose most frequently because of claims for a putative surviving spouse’s share of an estate, however, we developed a rebuttable presumption in favor of a common law marriage where there is an absence of testimony regarding the exchange of verba in praesenti.  When applicable, the party claiming a common law marriage who proves: (1) constant cohabitation; and (2) a reputation of marriage ‘which is not partial or divided but is broad and general,’ raises the rebuttable presumption of marriage.”

In this case, both ways of proving a common law marriage could be found based on the testimony presented to Judge McBride. Hunter recounted how he proposed marriage to Carter on Christmas Day 1996, giving him a diamond ring, asking if Carter would marry him, and Carter answering yes.  Two months later, on February 18, 1997, Carter gave Hunter a ring in return which was engraved with that date, and the men henceforth celebrated February 18 as their anniversary for the next 16 years, until Carter died tragically from injuries sustained in a motorcycle accident in April 2013, “less than two months before the United States Supreme Court’s landmark decision in United States v. Windsor, 133 S. Ct. 2675 (2013), which struck down the provision of the federal Defense of Marriage Act (“DOMA”) defining ‘marriage’ as only between one man and one woman,” Judge Moulton commented.

After the men exchanged rings, they bought a house together with a joint mortgage, made mutual wills and other legal documents establishing their relationship, supported each other, held joint bank and investment accounts, and subsequently moved to the Pittsburgh area where they again jointly purchased a house. There was testimony from Carter’s nieces that they referred to Hunter as “Uncle Mike.”  It was easy based on the testimonial record for the Superior Court to conclude that McBride erred in basing his decision on one bit of evidence considered out of context, that Carter and Hunter had consciously decided not to go out of state to marry when it became possible for same-sex couples to marry elsewhere, since an out-of-state same-sex marriage would not be recognized in Pennsylvania at that time and they specifically planned to have a ceremonial wedding in their home state of Pennsylvania when that became possible.

This did not, in the view of the Superior Court, undermine the conclusion that they considered themselves married as of February 18, 1997, had continuously cohabited, and had held themselves out to the world as married from that date forward. “In sum,” wrote Moulton, “the evidence clearly established that Hunter and Carter, like countless loving couples before them, expressed ‘an agreement to enter into the legal relationship of marriage at the present time.’  Therefore, we conclude that Hunter proved, by clear and convincing evidence, that he and Carter had entered into a common law marriage on February 18, 1997.”  Where McBride went wrong was in failing to distinguish between ceremonial marriage and common law marriage.  The evidence on which he relied related to ceremonial marriage, and did not undermine the evidence of a common law marriage.

The court returned the case to the Beaver County Court of Common Pleas “for the entry of an order declaring the existence of a common law marriage between Hunter and Carter as of February 18, 1997.”

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Nebraska Supreme Court Ends State’s Anti-LGBT Adoption/Foster Policies

The seven-member Nebraska Supreme Court has unanimously affirmed a decision by Lancaster County District Judge John A. Colborn that a formal published policy adopted by the state in 1995 banning adoptions or foster placements into any household with a “homosexual” in residence was unconstitutional, as was an informal policy adopted more recently by chief executive officers of the state’s Department of Health and Human Services under which “exceptions” could be made in particular cases by personal order of the department’s director.

Ruling on a case brought by the ACLU on behalf of some same-sex couples who sought to foster or adopt children but were either discouraged by Department staff members or deterred by the formal policy posted on the Department’s website, Stewart v. Heineman, 296 Neb. 262, the Supreme Court focused mainly on technical issues, as the state apparently conceded that there was no good reason to single out gay and lesbian adults for discriminatory treatment and sought to persuade the court that the case was “moot” and should be dismissed, preferably without awarding costs and fees to the plaintiffs. The trial judge awarded costs and fees totaling more than $175,000, an amount that will increase if fees are later awarded to the plaintiffs for successfully defending their victory in the state supreme court.

The lengthy opinion by Justice John F. Wright is devoted almost entirely to refuting ridiculous arguments mounted by the state to try to convince the court that it lacked jurisdiction to decide the case, rather than to repeating in any detail the evidence presented to the district court about the parenting abilities of lesbians and gay men and the wholesome, well-adjusted children they have raised when given the opportunity to do so.

The complaint the ACLU filed centered on Memo 1-95, an administrative memorandum written by the director of the Department of Social Services (which later became the Department of Health and Human Services) in 1995. The memo stated: “It is my decision that effective immediately, it is the policy of the Department of Social Services that children will not be placed in the homes of persons who identify themselves as homosexuals.  This policy also applies to the area of foster home licensure in that, effective immediately, no foster home license shall be issued to persons who identify themselves as homosexuals.”  The memo adopted a similar policy regarding “unmarried heterosexual couples.”  The memo “directed staff not to specifically ask about an individual’s sexual orientation or marital status beyond those inquiries already included in the licensing application and home study,” wrote Justice Wright.  “The stated reason for the policy was this State’s intent to place children in the most ‘family-like setting’ when out-of-home care is necessary,” Wright continued.  The memo contemplated that a formal regulation incorporating its policy decisions would be adopted, but this did not happen.

In fact, there is no formal statutory or regulatory ban on gay people being foster or adoptive parents in Nebraska, as such. Thus, the entire focus of the lawsuit and the court opinions was on the “policy” expressed in Memo 1-95 and subsequent “practices” adopted by the director of the department.

The Memo was posted on the Department’s website as a formal policy statement, and was not removed from the website until after this lawsuit began and motions for summary judgment had been filed with Judge Colborn. The Memo was used in training new staff members, and was referred to specifically by staff members when they discouraged one of the couples from formally applying to get a foster child, which is a prerequisite in Nebraska to legal adoption.

Part of the state’s defense in this case was that although Memo 1-95 continued to appear on the website, it was no longer the actual policy of the Department, as recent chief executive officers had determined that lesbian and gay applicants otherwise qualified to serve as foster or adoptive parents should be allowed to do so. However, this informal policy was not well publicized throughout the department, formal instructions were not issued at the line staff level, and no mechanism for appealing denials based on an applicant’s sexual orientation was created.

Under this “practice,” which was referred to throughout the opinion as the Pristow Procedure, after Thomas Pristow, director of the Division beginning in March 2012, if gay applicants were approved at the line staff level, the approval had to go through four layers of sign-offs, including by Pristow himself. No other potentially controversial placements, such as those with unmarried heterosexual parents or with former prison inmates, had to go through so many layers of approval, and only placements with “homosexuals” had to be personally approved by the director.

An earlier form of this policy “exception” was first adopted by Todd Reckling when he was director in June 2010, expressed in a letter to two gay men, Todd Vesely and Joel Busch, who had begun the process of qualifying to be foster and adoptive parents in 2008, completing the training program. Reckling wrote them that the division’s policy was to bar licensing unrelated adults living together, referring to Memo 1-95, but that the division’s policy “allows for an exception” under which one member of an unmarried couple might be licensed, but Reckling’s letter “gave no indication that such an exception would be made in their case” because, as Reckling explained, “second parent adoptions” were not permitted in Nebraska involving unmarried couples, and Todd and Joel could not marry because of Nebraska’s anti-gay marriage constitutional amendment.   Neither would their marriage be recognized if contracted out of state.

One of the state’s incredible arguments was that the plaintiffs did not have standing to bring the lawsuit because none of the couples had formally applied and been turned down. This was a nonsensical argument, since it was clear that any gay couple applying had to be rejected under the formal policy posted on the website and taught to staff members.  In reviewing the deposition testimony of the various directors of the division and other staff members, as well as their internal written communications, the court uncovered the entire history of developments within the department as this issue unfolded.  When pressed about why Memo 1-95 remained for so long on the website despite insistence by some of the witnesses that it was no longer the “practice” of the division, witnesses intimated that they wanted to prevent the possibility that a formal withdrawal of the memo would provoke the state legislature to pass an explicit ban on “homosexuals” serving as foster or adoptive parents, as had happened in some other states when the issue aroused public attention.

The defense witnesses struggled to define the difference between a “policy” and a “practice,” and to argue that because the complaint filed in this case only explicitly attacked 1-95 as a “policy,” the court should not consider whether the “practice” actually followed was constitutional. Of course, since the “practice” was never formally published, it turns out that the plaintiffs did not learn of it until after filing their complaint and conducting discovery.  The court turned aside formalistic objections to extending the lawsuit to consider the “practice,” and agreed with Judge Colborn that the “practice” as variously described in depositions and internal division communications was itself discriminatory.

The defense witnesses could advance no good reason why approval of gay people to be foster or adoptive parents should require five layers of approval culminating in personal approval by the CEO, a degree of internal scrutiny that was not demanded of any other class of applicants.

The court also rejected the defendants’ argument that the case was not “ripe” for decision because nobody had been turned down under the “practice”, now that the Memo has been removed from the website. Interestingly, however, the opinion does not mention any evidence that any gay foster or adoptive parents have actually been approved.  The defendants argued that none of the plaintiffs have yet incurred the injury of formally being denied, so it was premature for the court to rule on the merits.  But the court noted plentiful U.S. Supreme Court precedents adopting the view that a denial of equal treatment was itself an injury, even if it was in the form of an official policy that had deterred individuals from applying and thus had not resulted in any formal denials.

Approving the district court’s decision to issue an injunction against the “policy” and the “practice,” Justice Wright quoted from U.S. Supreme Court opinions, that the Court had “repeatedly emphasized” that “discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community, can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.”

As to the “ripeness” issue in the context of a “reverse-discrimination” attack on a governmental affirmative action contracting policy, the Supreme Court has said “that the plaintiffs seeking to prevent future deprivation of the equal opportunity to compete need only demonstrate they will ‘sometime in the relatively near future’ bid on a contracted governed by such race-based financial incentives.”

The court also rejected the state’s contention that the case was “moot” because Memo 1-95 had been removed from the website. The court noted that the Memo had not been formally withdrawn, since it was not included on a website list of withdrawn memoranda, presumably so as not to call the legislature’s attention to its withdrawal.

“If a discriminatory policy is openly declared,” wrote Wright, “then it is unnecessary for a plaintiff to demonstrate it is followed in order to obtain injunctive or declaratory relief. We thus find immaterial any dispute in the record as to whether the Pristow Procedure was a policy versus a practice, whether it ‘replaced’ Memo 1-95, or the level of confusion within DHHS and its contractors concerning DHHS’ policy and practice when this action was filed.  A secret change in policy or procedure cannot moot an action based on a published policy statement that has been cited by the agency as excluding the plaintiffs from eligibility.”

Furthermore, the court said that a party cannot “moot” a case “simply by ending its unlawful conduct once sued,” because if such “voluntary cessation” rendered the case “moot”, causing its dismissal, “a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.”

In the final section of his opinion, Justice Wright’s discussion intimated what this appeal is really all about. The state is not actually contesting Judge Colborn’s conclusion that the policy or practice is unconstitutional.  Rather, hoping to get the case dismissed as moot, the state wants to be in a position to argue that it should not have to pay court costs and attorney’s fees to the plaintiffs!  They argued that the trial court abused its discretion in awarding costs and fees, and should have declared the case moot and dismissed it when the state removed 1-95 from its website.  The court wasn’t falling for this sophistry, however.

The April 7 opinion is a total rejection of all the arguments the state raised on appeal, and a total endorsement of Judge Colborn’s summary judgment order of August 5, 2015, which ordered the defendants to “refrain from adopting or applying policies, procedures, or review processes that treat gay and lesbian individuals and couples differently from similarly situated heterosexual individuals and couples when evaluating foster care or adoption applications under the ‘best interests of the child’ standard set forth in DHHS’ regulations.” The district court issued an order on December 15, 2015, awarding $28,849.25 in costs and $145,111.30 in attorney fees.

Lead attorneys for the plaintiffs are Amy Miller of the ACLU of Nebraska, Leslie Cooper of the national ACLU’s LGBT Rights Project, and cooperating attorneys Garrard R. Beeney and W. Rudolph Kleysteuber of Sullivan & Cromwell LLP. Amicus briefs in support of plaintiffs were filed by Nebraska Appleseed Center for Law in the Public Interest and the Child Welfare League of America.

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Federal Court Rules for “Unique” Family in Fair Housing Act Case

A federal district judge in Colorado granted summary judgment under the Federal Fair Housing Act (FHA) on April 5 to a couple in a “unique relationship” who were turned down by a landlord who had two residential properties available for rent that would have met the needs of the couple and their family. Judge Raymond P. Moore found that in turning down two woman (one of whom is transgender) who are married to each other and their two children as tenants, the landlord had discriminated against them because of their sex, as well as their familial status, both of which are forbidden grounds of discrimination under the federal law.

The court also granted judgment to the plaintiffs under Colorado’s Anti-Discrimination Act, which explicitly bans discrimination because of sexual orientation or transgender status as well as familial status.

The landlord, Deepika Avanti, owns three rental properties close to each other in Gold Hill, Colorado. Two are single family houses, and the third is a building subdivided into two separate living spaces, referred to as “townhouses.”  As of April 24, 2015, one of the townhouses was rented to a heterosexual couple, Matthew and Chiara, and the other was being advertised for rent on Craigslist.

The plaintiffs are Rachel Smith, a transgender woman, and Tonya Smith. They had been married for five years and were living with their two children in rental housing that they had to vacate because the building was being sold and withdrawn from the rental market.  They responded to the Craigslist advertisement by emailing Avanti.  “In the email, among other things, Tonya discussed her family, including mentioning that Rachel is transgender,” wrote Judge Moore.  Avanti responded to the email, mentioning that both the townhouse and one of the single family houses, which had three bedrooms, were available for rent. She also asked Tonya to send photos of her family.  Replying by email, Tonya agreed to meet Avanti that evening and attached a photo of the Smith family.

Tonya and Rachel and their children met with Avanti that evening and got to view the townhouse and the single-family house that were available for rent. They also got to meet Matthew and Chiara, the tenants of the other townhouse.  After she returned to her home, Avanti emailed Tonya Smith twice that night.  In the first email, she told Tonya that they were “not welcome to rent the Townhouse because of Matt and Chiara’s concerns regarding their children and ‘noise.’”  In the second email, Avanti said she had talked to her husband and “they have ‘kept a low profile’ and ‘want to continue it’ that way,” so they would not rent either residence to the Smiths.

The next morning, Tonya emailed Avanti, asking what she meant by “low profile.” Avanti replied “that the Smith’s ‘unique relationship and ‘uniqueness’ would become the town focus and would jeopardize [Avanti’s] low profile in the community.”

It took the Smiths months to find a suitable place to rent. Because they had to vacate their existing residence, they moved in with Rachel’s mother for a week and had to shed possessions to fit into a small space.  The new apartment they found did not meet their needs as well as Avanti’s property would have done, due to the location.  Their new apartment placed them in a less desirable school district for the children and required a longer daily commute to her job for Rachel, although she subsequently switched to a job closer to their new apartment.

They sued in federal court, asserting claims under the Fair Housing Act and the Colorado Anti-Discrimination Act. The basis for the federal court having jurisdiction to hear the case was the federal statutory claim, which was divided into a sex discrimination claim and a familial status claim.

The more significant part of the ruling for purposes of LGBT law is the federal sex discrimination claim. Federal discrimination statutes do not at present expressly forbid sexual orientation or gender identity discrimination, but courts are increasingly willing to apply bans on sex discrimination to claims brought by GLBT plaintiffs.  Although the Department of Housing during the Obama Administration took the position that the FHA should be construed to apply to sexual orientation and gender identity discrimination, the Trump Administration has not announced a position on this.  Judge Moore’s opinion thus may be breaking new ground by granting summary judgment in favor of the Smiths on their sex discrimination claim.

Because Colorado is within the 10th Circuit, Judge Moore had to follow 10th Circuit precedent in determining whether the Smiths could sue for sex discrimination under the Fair Housing Act.  The Smiths had argued that discrimination based on “sex stereotypes” is “discrimination based on sex” under the FHA.  Moore pointed out that the 10th Circuit has followed court rulings under Title VII of the Civil Rights Act when interpreting the FHA discrimination ban, and that the 10th Circuit has an employment discrimination ruling on a claim by a transgender plaintiff, Etsitty v. Utah Transit Authority, 502 F.3d 1215 (2007).  In that case, the court ruled that “discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII,” and that “Title VII protections” do not extend to “discrimination based on a person’s sexual orientation.”  However, the Etsitty opinion did recognize the possibility that a gay or transgender plaintiff might claim sex discrimination because of gender stereotyping, relying on the Supreme Court’s 1989 Title VII ruling, Price Waterhouse v. Hopkins, 490 U.S. 228, where the court held that discriminating against a woman for her failure to conform to the employer’s stereotyped views of how women should act and present themselves in a business setting could violate the statute.

Judge Moore noted that in the Etsitty opinion the 10th Circuit had “cited with approval” to Smith v. City of Salem, 378 F.3d 566 (6th Circuit 2004), a decision upholding a Title VII claim by a transgender woman who was being pressured to quit by the City’s Fire Department after confiding in a supervisor that she was transitioning.  The court held that the fact that the plaintiff is a “transsexual” was “not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”  In a 2014 decision, McBride v. Peak Wellness Center, 688 F.3d 698, the 10th Circuit has, according to Judge Moore, “implicitly recognized that claims based on failure to conform to stereotypical gender norms may be viable.”

This was enough for Moore. “In this case,” he wrote, “the Smiths contend that discrimination against women (like them) for failure to conform to stereotype norms concerning to or with whom a woman should be attracted, should marry, and/or should have children is discrimination on the basis of sex under the FHA.  The Court agrees,” he continued, finding that “such stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act (e.g., that a woman should not be overly aggressive, or should not act macho), and are products of sex stereotyping.”

Moore also stated agreement with the Smiths’ argument that “discrimination against a transgender (here, Rachel) because of her gender-nonconformity is sex discrimination. In other words,” he explained, “that discrimination based on applying gender stereotypes to someone who was assigned a certain sex (here, male) at birth, constitutes discrimination because of sex.”  So long as the argument was phrased in terms of stereotyping, Moore believed that he could rule on the claim under the FHA.  However, he cautioned, “To the extent the Smiths argue something more – that the FHA has been violated based on sex stereotyping as they have been discriminated against solely because of Rachel’s status as transgender, and that the Smiths were discriminated against because of their sexual orientation or identity – the Court declines to do so.”  Thus, the court did not hold, as such, that discrimination because sexual orientation or gender violate the FHA’s ban on sex discrimination, but embraced such a broad view of sex stereotyping that the opinion appears to have much the same effect.

As to the motion for summary judgment, Moore concluded that the “undisputed material facts” show that Avanti violated the FHA, as her reference to the Smiths’ “unique relationship” and their family’s “uniqueness” showed reliance on stereotypes “of to or with whom a woman (or a man) should be attracted, should marry, or should have a family.”

As to the “familial status” discrimination claim, there is clear precedent that it violates the FHA for a landlord to have an “adults only” policy or to discriminate against prospective tenants because they have children, so that was a clear winner. Judge Moore also found it relatively simple to rule in the Smiths’ favor on their state law claims, since Colorado explicitly forbids housing discrimination because of sexual orientation (which is defined to include “transgender status”) as well as familial status.  The next stage of the lawsuit will be to determine the damages or relief that the court might order.

The Smiths are represented by Karen Lee Loewy and Omar Francisco Gonzalez-Pagan, from Lambda Legal’s New York office, and cooperating attorneys from Holland & Hart LLP’s Denver office: Matthew Paul Castelli and Benjamin Nichols Simler.

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4th Circuit Judges Hail Gavin Grimm as a Civil Rights Leader

A pair of federal appeals court judges have saluted Gavin Grimm, a transgender high school senior, as a civil rights leader in the struggle to establish equal rights for transgender people under the law.

On April 7, the Richmond-based 4th Circuit Court of Appeals granted a motion by the Gloucester County (Virginia) School District to vacate a preliminary injunction issued last summer by the U.S. District Court, which had ordered the school district to allow Grimm, a transgender boy, to use the boys’ restrooms at the high school during his senior year.  G.G. v. Gloucester County School Board, 2017 WL 1291219.

That Order was quickly stayed by the U.S. Supreme Court, which then agreed to hear the school board’s appeal of the Order last fall. However, after the Trump Administration withdrew the Obama Administration’s interpretation of Title IX of the Education Amendments of 1972, to which the 4th Circuit had deferred in ordering the district court to issue the Order, the Supreme Court cancelled the scheduled oral argument and returned the case to the 4th Circuit.  Although the Order is now vacated, presumably the 4th Circuit still retains jurisdiction to decide whether the district court was correct in its decision to dismiss Gavin Grimm’s sex discrimination claim under Title IX in the absence of an administrative interpretation to which to defer, since it was Grimm’s appeal of the dismissal that brought the case to the 4th Circuit in the first place.

Although the court granted the school district’s unopposed motion to vacate the Order, a member of the panel, Senior Circuit Judge Andre M. Davis, was moved to write a short opinion reflecting on the case. Circuit Judge Henry M. Floyd directed that Davis’s opinion be published together with the 4th Circuit’s order, and Judge Paul V. Niemeyer, who had dissented from the 4th Circuit’s decision, agreed to the publication.

Davis’s eloquent brief opinion deserves to be read in full. Throughout the opinion, Grimm is referred to by his initials, as the case was filed on his behalf by his mother and stalwart champion in his struggle for equal rights, Deirdre Grimm.

DAVIS, Senior Circuit Judge, concurring:

G.G., then a fifteen-year-old transgender boy, addressed the Gloucester County School Board on November 11, 2014, to explain why he was not a danger to other students. He explained that he had used the boys’ bathroom in public places throughout Gloucester County and had never had a confrontation. He explained that he is a person worthy of dignity and privacy. He explained why it is humiliating to be segregated from the general population. He knew, intuitively, what the law has in recent decades acknowledged: the perpetuation of stereotypes is one of many forms of invidious discrimination. And so he hoped that his heartfelt explanation would help the powerful adults in his community come to understand what his adolescent peers already did. G.G. clearly and eloquently attested that he was not a predator, but a boy, despite the fact that he did not conform to some people’s idea about who is a boy.

Regrettably, a majority of the School Board was unpersuaded. And so we come to this moment. High school graduation looms and, by this court’s order vacating the preliminary injunction, G.G.’s banishment from the boys’ restroom becomes an enduring feature of his high school experience. Would that courtesies extended to others had been extended to G.G.

Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals—Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few—who refused to accept quietly the injustices that were perpetuated against them. It is unsurprising, of course, that the burden of confronting and remedying injustice falls on the shoulders of the oppressed. These individuals looked to the federal courts to vindicate their claims to human dignity, but as the names listed above make clear, the judiciary’s response has been decidedly mixed. Today, G.G. adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, “the arc of the moral universe is long, but it bends toward justice.” G.G.’s journey is delayed but not finished.

G.G.’s case is about much more than bathrooms. It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It’s about governmental validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity. His case is part of a larger movement that is redefining and broadening the scope of civil and human rights so that they extend to a vulnerable group that has traditionally been unrecognized, unrepresented, and unprotected.

G.G.’s plight has shown us the inequities that arise when the government organizes society by outdated constructs like biological sex and gender. Fortunately, the law eventually catches up to the lived facts of people; indeed, the record shows that the Commonwealth of Virginia has now recorded a birth certificate for G.G. that designates his sex as male.

G.G.’s lawsuit also has demonstrated that some entities will not protect the rights of others unless compelled to do so. Today, hatred, intolerance, and discrimination persist — and are sometimes even promoted — but by challenging unjust policies rooted in invidious discrimination, G.G. takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail, and that the core dignity of every one of our brothers and sisters is respected by lawmakers and others who wield power over their lives.

G.G. is and will be famous, and justifiably so. But he is not “famous” in the hollowed-out Hollywood sense of the term. He is famous for the reasons celebrated by the renowned Palestinian-American poet Naomi Shihab Nye, in her extraordinary poem, Famous. Despite his youth and the formidable power of those arrayed against him at every stage of these proceedings, “[he] never forgot what [he] could do.”

Judge Floyd has authorized me to state that he joins in the views expressed herein.

S. Nye, “Famous”:

The river is famous to the fish.

The loud voice is famous to silence, which knew it would inherit the earth before anybody said so.

The cat sleeping on the fence is famous to the birds watching him from the birdhouse.

The tear is famous, briefly, to the cheek.

The idea you carry close to your bosom is famous to your bosom.

The boot is famous to the earth, more famous than the dress shoe, which is famous only to floors.

The bent photograph is famous to the one who carries it and not at all famous to the one who is pictured.

I want to be famous to shuffling men who smile while crossing streets, sticky children in grocery lines, famous as the one who smiled back.

I want to be famous in the way a pulley is famous, or a buttonhole, not because it did anything spectacular, but because it never forgot what it could do.

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Landmark Federal Appeals Ruling Holds Sexual Orientation Discrimination Violates Title VII

The full bench of the U.S. Court of Appeals for the 7th Circuit, based in Chicago, substantially advanced the cause of gay rights on April 4, releasing an unprecedented decision in Kimberly Hively v. Ivy Tech Community College, 2017 WL 1230393, holding that Title VII of the Civil Rights Act of 1964, which applies generally to all employers with fifteen or more employees as well as many federal, state and local government operations, prohibits discriminating against a person because of their sexual orientation.  The text of the statute does not mention sexual orientation, so the interpretive question for the court was whether discriminating against somebody because they are lesbian, gay or bisexual can be considered a form of sex discrimination.

What was particularly amazing about the affirmative decision, the first to rule this way by a federal appeals court, was that the 7th Circuit is composed overwhelmingly of Republican appointees, many of whom were appointed as long ago as the Reagan Administration.  Although the lead opinion for the Circuit was written by Chief Judge Diane Pamela Wood, who was appointed by Bill Clinton, the 8-member majority of the 11-judge bench included more Republicans than Democrats.  Many of the judges in the majority could be generally characterized as judicial conservatives.

Wood’s opinion was joined by Frank Easterbrook (Reagan appointee), Ilana Rovner (George H. W. Bush appointee), Ann Claire Williams (Clinton appointee), and David F. Hamilton (the only Obama appointee on the Circuit). Richard Posner (Reagan appointee) wrote a concurring opinion.  Joel Martin Flaum (Reagan appointee) wrote a concurring opinion which was joined by Kenneth Francis Ripple (Reagan appointee).  The dissent by Diane S. Sykes (George W. Bush appointee) was joined by Michael Stephen Kanne (Reagan appointee) and William Joseph Bauer (Ford appointee).  Ripple and Bauer are senior judges who were sitting on the en banc hearing because they were part of the three-judge panel (with Judge Rovner) that ruled on the case last year.  The Circuit has 11 authorized positions, but there are two vacancies among the active judges, part of the Republican Senate’s legacy of refusing to confirm most of President Obama’s judicial appointees during his second term.

The Circuit’s decision to grant en banc review clearly signaled a desire to reconsider the issue, which Judge Rovner had called for doing in her panel opinion. Rovner then made a persuasive case that changes in the law since the 7th Circuit had previously ruled negatively on the question called out for reconsideration.  Those who attended the oral argument on November 30 or listened to the recording on the court’s website generally agreed that the circuit was likely to overrule its old precedents, the only mystery being who would write the opinion, what theories they would use, and who would dissent.

The lawsuit was filed by Kimberly Hively, a lesbian who was working as an adjunct professor at the college, which is located in South Bend, Indiana. Despite years of successful teaching, her attempts to secure a full-time tenure-track position were continually frustrated and finally her contract was not renewed under circumstances that led her to believe it was because of her sexual orientation.  Since Indiana’s state law does not forbid sexual orientation discrimination, and South Bend’s ordinance (which does forbid sexual orientation discrimination) would not apply to the state college, she filed suit in federal court under Title VII.  She represented herself at that stage.  The trial judge, Rudy Lozano, granted the college’s motion to dismiss the case on the ground that 7th Circuit precedents exclude sexual orientation discrimination claims under Title VII.

Hively obtained representation from Lambda Legal on appeal. The three-judge panel rejected her appeal, while two of the judges urged that the precedents be reconsidered.

Judge Wood found that several key Supreme Court decisions have broadened the meaning of “because of sex” in Title VII, to the extent that she could write that “in the years since 1964, Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman for Job A, or a man for Job B.” The broadening includes launching a complex law of sexual harassment, including same-sex sexual harassment, and discrimination against a person who fails to conform to “a certain set of gender stereotypes.”

As have many of the other judges who have written on this issue, Wood quoted from Justice Antonin Scalia’s opinion for the unanimous court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the same-sex harassment case, in which, after noting that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” this did not mean that the statute could not be interpreted to apply to such a situation. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” Scalia wrote, “and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Woods found convincing Hively’s contention, argued to the court by Lambda Legal’s Greg Nevins, that two alternative theories would support her claim. The first follows a “comparative method in which we attempt to isolate the significance of the plaintiff’s sex to the employer’s decision: has she described a situation in which, holding all other things constant and changing only her sex, she would have been treated the same way?”  The second rests on an intimate association claim, relying on the Supreme Court’s 1967 ruling striking down state laws barring interracial marriages, Loving v. Virginia.  The Supreme Court held that a ban on interracial marriage was a form of race discrimination, because the state was taking race in account in deciding whom somebody could marry.  Similarly here, an employer is taking sex into account when discriminating against somebody because they associate intimately with members of the same sex.  After briefly describing these two theories, Wood wrote, “Although the analysis differs somewhat, both avenues end up in the same place: sex discrimination.”

Woods noted at least two rulings by other circuits under Title VII that had adapted Loving’s interracial marriage analysis to an employment setting, finding race discrimination where an employer discriminated against persons who were in interracial relationships, Parr v. Woodmen of the World Life Insurance Co., 791 F.2 888 (11th Cir. 1986), and Holcomb v. Iona College, 521 F.3d 130 (2nd Cir. 2008).  These citations were a bit ironic, since the 11th and 2nd Circuits have in recent weeks rejected sexual orientation discrimination claims under Title VII, in which the plaintiffs advanced the same analogy to support their Title VII claims.  These recent opinions were by three-judge panels that held themselves to be bound by prior circuit rulings.  Lambda Legal has already filed a petition for en banc review in the 11th Circuit case, and counsel for plaintiff in the 2nd Circuit case is thinking about doing the same.

Ultimately, Wood acknowledged, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’ The effort to do so has led to confusing and contradictory results, as our panel opinion illustrated so well.  The EEOC concluded, in its Baldwin decision, that such an effort cannot be reconciled with the straightforward language of Title VII.  Many district courts have come to the same conclusion.  Many other courts have found that gender identity claims are cognizable under Title VII.”

Woods recited the now well-worn argument about how it is a basic inconsistency in the law that a person can enter into a same-sex marriage on Saturday and then be fired without legal recourse for having done so when they show up at the workplace on Monday. That is still the state of the law in a majority of the states.

Wood acknowledged that this decision does not end the case. Because Hively’s original complaint was dismissed by the district court without a trial, she has not yet been put to the test of proving that her sexual orientation was a motivating factor in the college’s decision not to hire her or renew her adjunct contract.  And, what passed unspoken, the college might decide to petition the Supreme Court to review this ruling, although the immediate reaction of a college spokesperson was that the school – which has its own sexual orientation non-discrimination policy – denies that it discriminated against Hively, and is ready to take its chances at trial.

Judge Posner submitted a rather odd concurring opinion, perhaps reflecting the oddity of some of his comments during oral argument, including the stunning question posed to the college’s lawyer: “Why are there lesbians?” Posner, appointed by Reagan as an economic conservative and social libertarian, has evolved into a forceful advocate for LGBT rights, having satisfied himself that genetics and biology play a large part in determining sexual identity and that it is basically unfair to discriminate against LGBT people without justification.  He wrote the Circuit’s decision striking down bans on same-sex marriage in Indiana and Wisconsin in 2014.

In this opinion, he takes on the contention that it is improper for the court to purport to “interpret” the language adopted by Congress in 1964 to cover sexual orientation discrimination. After reviewing various models of statutory interpretation, he insisted that “interpretation can mean giving a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text) – a meaning that infuses the statement with vitality and significance today.”  He used as his prime example judicial interpretation of the Sherman Antitrust Act of 1890, adopted “long before there was a sophisticated understanding of the economics of monopoly and competition.”  As a result of changing times and new knowledge, he observed, “for more than thirty years the Act has been interpreted in conformity to the modern, not the nineteenth-century, understanding of the relevant economics.” Basically, the courts have “updated” the Act in order to keep it relevant to the present.

He argued that the same approach should be brought to interpreting Title VII, adopted more than half a century ago. This old law “invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted.”  And, after reviewing the revolution in understanding of human sexuality and public opinion about it, he concluded it was time to update Title VII to cover sexual orientation claims, even though “it is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII.”  Although some of the history he then recites might arouse some quibbles, he was able to summon some pointed examples of Justice Scalia employing this method in his interpretation of the Constitution regarding, for example, flag-burning and an individual right to bear arms.

“Nothing has changed more in the decades since the enactment of the statute than attitudes toward sex,” wrote Posner, going on to recite the litigation history of the struggle for marriage equality that culminated in 2015 with the Supreme Court’s ruling in Obergefell v. Hodges.

Although it might sound odd at times as a judicial opinion, Posner’s concurrence is eminently readable and packed full of interesting information, including his list of “homosexual men and women (and also bisexuals, defined as having both homosexual and heterosexual orientations)” who have made “many outstanding intellectual and cultural contributions to society (think for example of Tchaikovsky, Oscar Wilde, Jane Addams, Andre Gide, Thomas Mann, Marlene Dietrich, Bayard Rustin, Alan Turing, Alec Guinness, Leonard Bernstein, Van Cliburn, and James Baldwin – a very partial list).”

This brought to the writer’s mind a famous paragraph in Supreme Court Justice Harry Blackmun’s opinion rejecting a challenge to the traditional anti-trust exemption for professional baseball, in which Blackmun included his own list of the greatest professional baseball players in history (compiled through a survey of the Supreme Court’s members and their young legal clerks).

Instead of pursuing Judge Wood’s line of reasoning, Posner was ready to declare that sexual orientation discrimination is a form of sex discrimination without such detailed analysis. “The most tenable and straightforward ground for deciding in favor of Hively is that while in 1964 sex discrimination meant discrimination against men or women as such and not against subsets of men or women such as effeminate men or mannish women, the concept of sex discrimination has since broadened in light of the recognition, which barely existed in 1964, that there are significant numbers of both men and women who have a sexual orientation that sets them apart from the heterosexual members of their genetic sex (male or female), and that while they constitute a minority their sexual orientation is not evil and does not threaten society.  Title VII in terms forbids only sex discrimination, but we now understand discrimination against homosexual men and women to be a form of sex discrimination; and to paraphrase [Oliver Wendell Holmes, Jr.], ‘We must consider what this country has become in deciding what that [statute] has reserved.’”

In his concurring opinion Judge Flaum took a narrower approach, noting that Title VII was amended in 1991 to provide that “an unlawful employment practice is established when the complaining party demonstrates that … sex … was a motivating factor for any employment practice, even though other factors also motivated the practice.” In other words, discrimination does not have to be “solely” because of sex to violate Title VII.  It is enough if the individual’s sex was part of the reason for the discrimination.  In light of this, Flaum (and Ripple, who joined his opinion) would look to the analogy with discrimination against employees in interracial relationships.  In addition, he noted, “One cannot consider a person’s homosexuality without also accounting for their sex: doing so would render ‘same’ and ‘own’ meaningless” in dictionary definitions that define homosexuality in terms of  whether somebody is attracted to persons of “the same” or “their own” sex.  Clearly, “sex” is involved when people are discriminated against because they are gay.

Judge Sykes’s dissent channeled scores of cases going back to the early years of Title VII and argued against the method of statutory interpretation used by the various opinions making up the majority. “The question before the en banc court is one of statutory interpretation,” she wrote.  “The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion.  So does Judge Posner in his concurrence.  Neither is faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted.  The result is a statutory amendment courtesy of unelected judges.  Judge Posner admits this; he embraces and argues for this conception of judicial power.  The majority does not, preferring instead to smuggle in the statutory amendment under cover of an aggressive reading of loosely related Supreme Court precedents.  Either way, the result is the same: the circumvention of the legislative process by which the people govern themselves.”

Although Sykes conceded that sexual orientation discrimination is wrong, she was not ready to concede that one could find it illegal by interpretation of a 1964 statute prohibiting sex discrimination at a time when the legislature could not possibly have been intending to ban discrimination against LGBT people. As Posner pointed out, that issue wasn’t on the radar in 1964.  Thus, to Sykes, Bauer and Kanne, it was not legitimate for a court to read this into the statute under the guise of “interpretation.”

Speculating about the ultimate fate of this decision could go endlessly on. There are fierce debates within the judiciary about acceptable methods of interpreting statutes, and various theories about how to deal with aging statutes that are out of sync with modern understandings.

Posner’s argument for judicial updating allows for the possibility that if Congress disagrees with what a court has done, it can step in and amend the statute, as Congress has frequently amended Title VII to overrule Supreme Court interpretations with which it disagreed. (For example, Congress overruled the Supreme Court’s decision that discrimination against pregnant women was not sex discrimination in violation of Title VII.)  Posner’s approach will be familiar to those who have read the influential 1982 book by then-Professor (now 2nd Circuit Judge) Guido Calabresi, “A Common Law for the Age of Statutes,” suggesting that courts deal with the problem of ancient statutes and legislative inertia by “updating” statutes through interpretation to deal with contemporary problems, leaving it to the legislature to overrule the courts if they disagree.  This method is more generally accepted in other common law countries (British Commonwealth nations), such as Australia, South Africa, India and Canada, than in the United States, but it clearly appeals to Posner as eminently practical.

So far the Republican majorities in Congress have not been motivated to address this issue through amendments to Title VII, or to advance the Equality Act, introduced during Obama’s second term, which would amend all federal sex discrimination laws to address sexual orientation and gender identity explicitly. Perhaps they will be provoked to act, however, if the question gets up to the Supreme Court and the 7th Circuit’s view prevails.

With the possibility of appeals now arising from three different circuits with different views of the issue, Supreme Court consideration of this question is highly likely. Public opinion polls generally show overwhelming support for prohibiting sexual orientation and gender identity discrimination in the workplace, which might serve as a brake on conservative legislators who would otherwise respond adversely to a Supreme Court ruling approving the 7th Circuit’s holding.

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Florida Ordered to Correct Death Certificates to List Surviving Same-Sex Spouses Without Requiring Individual Court Orders

U.S. District Judge Robert L. Hinkle, who rendered a decision prior to Obergefell v. Hodges finding that Florida’s ban on same-sex marriages was unconstitutional, had the opportunity to apply his ruling further in Birchfield v. Armstrong, Case No. 4:15-cv-00615 (N.D. Fla.), issued on March 23, 2017.  The case was brought by Lambda Legal as a class action on behalf of all survivors of same-sex spouses who died in Florida prior to the Obergefell decision, and who were thus not listed as surviving spouses on their death certificates.  Those certificate identify the decedents as being unmarried at death because Florida did not recognize their same-sex marriages, which had been performed out-of-state in jurisdictions that allowed such marriages.

There are two named plaintiffs, Hal B. Birchfield and Paul G. Mocko. Birchfield married James Merrick Smith in New York in 2012, the year after New York adopted its Marriage Equality Law.  Smith died in Florida in 2013.  Mocko married William Gregory Patterson in California in 2014, the year after the U.S. Supreme Court dismissed an appeal and left standing a federal court order striking down California Proposition 8, thus allowing the resumption of same-sex marriages in California as decreed by that state’s Supreme Court in 2008.  Patterson died in Florida later in 2014.  In both cases, the decedents were identified as unmarried on their death certificates, and any mention of their surviving spouses was omitted.

A proper death certificate is an important document for a surviving spouse to have as they settle the affairs of their decedent, especially when it comes to dealing with issues involving property ownership, bank accounts, survivor benefits under government programs, insurance policies and the like. To have to initiate litigation to obtain a proper death certificate is an inconvenience at a difficult time.

After the Obergefell decision, Birchfield and Mocko sought to get corrected death certificates.  But the state insisted, pursuant to a statute and an interpretive rule, that they could only get such certificates by obtaining an individual court order.  Lambda sued on their behalf in federal court seeking class relief, arguing that the Obergefell decision must be applied retroactively and that the state should have to issue corrected death certificates upon presentation of documentation of the out-of-state weddings, without requiring surviving spouses to go to state court for an order.

The state relied on Fla. Stat. Sec. 382.016(2), which states: “CERTIFICATE OF DEATH AMENDMENTS – Except for a misspelling or an omission on a death certificate with regard to the name of the surviving spouse, the department may not change the name of a surviving spouse on the certificate except by order of a court of competent jurisdiction.”

Judge Hinkle pointed out that one might plausibly read this statute to authorize exactly the relief that Lambda Legal was seeking in this case. “One might conclude that the explicit exception to the court-order requirement – the exception for ‘an omission on a death certificate with regard to the name of the surviving spouse’ – applies to a death certificate that both omits the fact that the decedent was married and omits the name of the surviving spouse.”  The problem, however, is that the ambiguity created by the wording of the statute had been addressed years ago through an interpretive rule adopted by the Health Department, which allows an amendment to marital statusor the name of a surviving spouse, but not both, without a court order.  “The defendants refused to depart from that interpretation,” the judge observed, without noting an explanation offered for such refusal.  The obvious explanation is sheer cussedness.  As far as Florida officials are concerned, apparently, they won’t do anything voluntarily to effectuate marriage equality beyond what a court orders them to do.  Witness, for example, the state’s obstinacy on the issue of parental status presumption for same-sex spouses of women who give birth.  Thus, the need for this wasteful litigation.

“As a matter of federal constitutional law,” wrote Judge Hinkle, “a state cannot properly refuse to correct a federal constitutional violation going forward, even if the violation arose before the dispute over the constitutional issue was settled. If the law were otherwise, the schools might still be segregated.”  Florida concedes in this case that as a result of Obergefell, declaring a constitutional right under a provision adopted as part of the Constitution shortly after the Civil War, its failure to recognize these marriages at the time of death was unconstitutional.  “They are willing to correct any pre-Obergefell constitutional violation,” Hinkle continued. “But the defendants insist that, as a prior condition to any correction, an affected party must obtain an order in response to an individual claim in state court.  Not so.  As the Supreme Court said long ago, 42 U.S.C. Section 1983 affords a person whose federal constitutional rights have been violated ‘a federal right in federal courts.’  In short, a federal court has jurisdiction to remedy a federal violation, including, when otherwise proper, through a class action.”

Hinkle found this was an appropriate case for such class relief. “To the extent the defendant state officials simply need a clear resolution of the perceived conflict between the federal constitutional requirement and the state statute, this order provides it.”  Acknowledging that state officials could legitimately seek proof that the marriages in question took place, Hinkle said that the state could require the submission of an application, affidavit, and appropriate documentary evidence.  “This order provides that, upon submission of the same materials, the defendants must correct a constitutional error that affected a death certificate’s information on both marital status and a spouse’s identity.”  If they were going to insist on a “court order” to make such a change, then a copy of Judge Hinkle’s order in this case can accompany the application.  “This injunctions binds the defendants [Florida’s Surgeon General/Secretary of Health and the State Registrar of Vital Statistics] and their officers, agents, servants, employees, and attorneys – and others in active concert or participation with any of them – who receive actual notice of this injunction by personal service or otherwise.”

Hinkle indicated that he would retain jurisdiction of the case “to enforce the injunction” if necessary and to “award costs and attorney’s fees” to the plaintiffs. If past is prologue, expect haggling about the amount of attorney’s fees the state will be ordered to pay.  Lambda Legal attorneys Karen L. Loewy and Tara L. Borelli represent the plaintiffs with volunteer co-counsel David P. Draigh and Stephanie S. Silk of White & Case LLP.

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2nd Circuit Panel Rejects Sexual Orientation Discrimination Claim Under Title VII, but Revives Sex-Stereotyping Claim by Gay Man

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, based in Manhattan, has issued a mixed ruling concerning a gay man’s claim that he was sexually harassed in his workplace in violation of Title VII of the Civil Rights Act of 1964.  In a per curiam opinion in Christiansen v. Omnicom Group, 2017 U.S. App. LEXIS 5278, 2017 WL 1130183, the court ruled on March 27 that plaintiff Matthew Christiansen could not sue under Title VII on a claim of sexual orientation discrimination because of existing circuit precedents, but that he  could maintain his lawsuit on a claim that he was the victim of unlawful sex stereotyping by his employer.  Thus, the case was sent back to U.S. District Judge Katherine Polk Failla (S.D.N.Y.), who last year had granted the employer’s motion to dismiss all federal claims in the case and to decline to exercise jurisdiction over state law claims; see 167 F. Supp. 3d 598.

The ruling on this appeal, which was argued on January 20, was much awaited because it was the first time for the 2nd Circuit to address the sexual orientation issue since the Equal Employment Opportunity Commission (EEOC) reversed its position, held for half a century, and ruled in 2015 that sexual orientation discrimination claims should be treated as sex discrimination claims subject to Title VII, which prohibits discrimination “because of sex.”

In a separate concurring opinion, Chief Judge Robert Katzmann, joined by U.S. District Judge Margo K. Brodie, suggested that if the full 2nd Circuit bench, which can change a circuit precedent, were to consider the question, Katzmann and Brodie would find that sexual orientation discrimination claims can be litigated under Title VII.  The other member of the panel, Circuit Judge Debra Ann Livingston, did not join the concurring opinion.

Christiansen, described in the opinion as “an openly gay man who is HIV-positive,” worked at DDB Worldwide Communications Group, an advertising agency based in New York that is a subsidiary of Omnicom Group. He alleged that his direct supervisor subjected him to humiliating harassment “targeting his effeminacy and sexual orientation.”  This began in the spring and summer of 2011, a time when marriage equality in New York was much in the news as the legislature prepared to vote upon and pass the marriage equality bill.  The supervisor, who is not named in the opinion, “drew multiple sexually suggestive and explicit drawings of Christiansen on an office whiteboard.”  These graphic drawings “depicted a naked, muscular Christiansen with an erect penis, holding a manual air pump and accompanied by a text bubble reading, ‘I’m so pumped for marriage equality.’”

There was another picture that “depicted Christiansen in tights and a low-cut shirt ‘prancing around.’” Yet another showed his “torso on the body of ‘a four legged animal with a tail and penis, urinating and defecating.’” Later in 2011, the same supervisor “circulated at work and posted to Facebook a ‘Muscle Beach Party” poster that depicted various employees’ heads on the bodies of people in beach attire,” including Christiansen’s head “attached to a female body clad in a bikini, lying on the ground with her legs upright in the air in a manner that one coworker thought depicted Christiansen as ‘a submissive sissy.’”

The supervisor also made remarks about “the connection between effeminacy, sexual orientation, and HIV status,” and allegedly told other employees that Christiansen “was effeminate and gay so he must have AIDS.”  The supervisor made other references to AIDS in connection with Christiansen, although at the time Christiansen was keeping his HIV-status private.  Christiansen included a disability discrimination claim in his complaint, but the district court found that his factual allegations were not sufficient to maintain a claim under the Americans with Disabilities Act, a conclusion that Christiansen did not appeal.

Christiansen filed a complaint with the EEOC in 2014, describing the harassment in detail, and upon receiving the agency’s notice of right to sue, filed his lawsuit in the federal court in Manhattan, which the defendants quickly moved to dismiss. Christiansen alleged violations of the Americans with Disabilities Act and Title VII for his federal claims, and also alleged violations of New York State and city anti-discrimination laws. The employer argued that his claim under Title VII was really a sexual orientation discrimination claim rather than a gender stereotyping claim, and the district judge agreed.

The state of precedent in the 2nd Circuit has frequently been questioned by federal trial courts in the circuit as confusing and difficult to apply.  The Circuit has ruled that under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), an employee, including a gay or lesbian employee, can bring a sex discrimination claim involving sex stereotyping, but if the court perceives that the employer’s mistreatment of the employee was really due to the employee’s sexual orientation, the claim will be rejected.  These precedents date from 2000 (Simonton v. Runyon, 232 F.3d 33) and 2005 (Dawson v. Bumble & Bumble, 398 F.3d 211).  They predate the Supreme Court’s decisions striking down the Defense of Marriage Act (U.S. v. Windsor, 133 S.Ct. 2675) and state bans on same-sex marriage (Obergefell v. Windsor, 135 S. Ct. 2584), as well as the EEOC’s 2015 ruling recognizing sexual orientation discrimination claims under Title VII.  While none of these later rulings produced a precedent binding on the 2nd Circuit that sexual orientation claims are covered under Title VII, they have “changed the landscape,” as Judge Katzmann wrote in his concurring opinion.

The per curiam opinion premised its holding squarely on the rule that circuit precedents can only be revised or reversed by the Supreme Court or the full circuit bench sitting en banc. Thus, the panel ruled that it was precluded from reconsidering Simonton and Dawson.

However, the panel disagreed with Judge Failla’s conclusion that there was too much about sexual orientation in Christiansen’s complaint to allow him to proceed with a gender stereotyping sex discrimination claim under Title VII. The panel pointed out that the 2nd Circuit has never ruled that gay people may not sue under Title VII when they have substantial evidence of gender stereotyping to present, provided that such evidence is not limited to the argument that sexual orientation discrimination is itself a form of sex stereotyping.  That is, the Title VII claim may not based, under current circuit precedent, on the argument that men loving men and women loving men is a violation of gender stereotypes in and of itself.  In this case, the panel wrote that there were enough allegations of gender stereotyping as such to survive the employer’s motion to dismiss.

“The district court commented that much more of the complaint was devoted to sexual orientation discrimination allegations than gender stereotyping discrimination allegations and that it thus might be difficult for Christiansen to withstand summary judgment or prove at trial that he was harassed because of his perceived effeminacy and flouting of gender stereotypes rather than because of his sexual orientation.” But the court pointed out that Christiansen’s burden at this initial stage of the litigation was not to show that he would prevail at later stages. Rather, it was enough for him to “state a claim that is plausible on its face” that he was subjected to harassment because of non-conformity to male gender stereotypes.

Judge Katzmann noted in his concurrence that because Christiansen was also alleging violations of state and local laws forbidding sexual orientation discrimination as well as a violation of Title VII, it was to be expected that his factual allegations would cover both kinds of claims. While joining in the per curiam opinion, Judge Katzmann wrote separately to express his view “that when the appropriate occasion presents itself, it would make sense for the Court to revisit the central legal issue confronted in Simonton and Dawson, especially in light of the changing legal landscape that has taken shape in the nearly two decades since Simonton issued.”

He went on to identify three theories under which sexual orientation discrimination claims should be treated as sex discrimination claims under Title VII, drawing heavily on the EEOC’s 2015 decision. First, he wrote, “sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex.”  The EEOC has observed, he wrote, that “sexual orientation ‘cannot be defined or understood without reference to sex,’ because sexual orientation is defined by whether a person is attracted to people of the same sex or opposite sex (or both, or neither).”  Thus, according to the EEOC, “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”

The second theory follows a 2nd Circuit ruling from 2008, Holcomb v. Iona College, 521 F.3d 130 (2008), where the circuit formally embraced the associational discrimination theory that other courts have applied in race discrimination cases.  If an employee suffers discrimination because he is involved in an interracial relationship, the courts will recognize his claim of race discrimination in violation of Title VII.  By analogy, discriminating against an employee because of a same-sex relationship is quite simply sex discrimination.  In Price Waterhouse, the Supreme Court had commented that Title VII “on its face treats each of the enumerated categories exactly the same.”  Thus, if employees in interracial relationships are protected from race discrimination, then employees in same-sex relationships should be protected from sex discrimination.

Finally, of course, there is gender stereotyping, including the kind of stereotyping that the 2nd Circuit has not yet accepted as violating Title VII, the stereotype that men should be attracted only to women and women only to men.  “Relying on common sense and intuition rather than any ‘special training,’” wrote Katzmann, “courts have explained that sexual orientation discrimination ‘is often, if not always, motivated by a desire to enforce heterosexually defined gender norms.  In fact, stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.’”  Katzmann noted that the circuit in Dawson had pointed out that “stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.”  He continued, “Having conceded this, it is logically untenable for us to insist that this particular gender stereotype is outside of the gender stereotype discrimination prohibition articulated in Price Waterhouse,” and concluded that this particular stereotype about sexual attraction is “as clear a gender stereotype as any.”

At the same time, he rejected the argument, raised by some courts, that because Congress has been considering unsuccessful efforts to pass a federal ban on sexual orientation discrimination since the 1970s, the courts are precluded through interpreting Title VII to ban such discrimination. When the circuit decided Simonton in 2000, it reached the same conclusion that all other federal circuit courts had then reached on this issue.  “But in the years since,” he wrote, “the legal landscape has substantially changed,” citing Lawrence v. Texas, 539 U.S. 558 (the sodomy law case) and Obergefell v. Hodges (the marriage equality case), “affording greater legal protection to gay, lesbian, and bisexual individuals.  During the same period,” he observed, “societal understanding of same-sex relationships has evolved considerably.”  Thus, he wrote, despite the failed legislative proposals, there is “no justification in the statutory language for a categorical rule” excluding sexual orientation claims.

“I respectfully think that in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII. Other federal courts are also grappling with this question, and it well may be that the Supreme Court will ultimately address it.”

The other cases are in the 7th Circuit, where the full bench heard argument on November 30 on this question, and the 11th Circuit, where a petition for en banc review is being filed by Lambda seeking reversal of a 2-1 adverse panel decision issued a few weeks ago.  There is also another panel case argued in January in the 2nd Circuit, although the circuit rule on precedent will likely produce the same result in that case, which does not include a separate gender non-conformity allegation.

Christiansen is represented by Susan Chana Lask, a New York attorney whose Complaint in this case originally cast the federal claim as a sex stereotyping claim. Now that the case is being sent back to the district court to be litigated on the stereotyping theory, the plaintiff need not seek full circuit en banc review to proceed and seek discovery to produce evidence in support of his claim.

The case attracted widespread amicus participation, including a brief filed by the EEOC, another from a long list of civil rights organizations led by the ACLU, and briefs on behalf of 128 members of Congress, the National Center for Lesbian Rights, and Lambda Legal, all arguing that the court should allow the case to proceed as a sexual orientation discrimination case.

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