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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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Florida Supreme Court Confronts Definition of “Sexual Intercourse”

In Debaun v. State, 2017 Fla. LEXIS 583, 2017 WL 1024526 (March 16), the Florida Supreme Court resolved a conflict between the intermediate appellate courts of the state about how to define “sexual intercourse” for purposes of a statute that makes it a crime for a person who knows he is HIV-positive to fail to disclose that fact before engaging in “sexual intercourse” with another person. Surprisingly, the 2nd District Court of Appeals had ruled in 2011 that the statute applied only to acts of penile-vaginal intercourse and not to cases of sex between gay men.  The 3rd and 5th District Courts of Appeals ruled that gay sex was covered by the statute.  The Court granted review in the 3rd District case to resolve the dispute.

The problem arose from the legislature’s failure to define the term “sexual intercourse” in the statute, presumably because the legislators assumed everybody would know what they meant. In 2011, the legislature decided to update the state’s sex crimes law by replacing the old “Venereal Diseases Act,” which explicitly applied only to sex between a man and a woman, with a new law titled “Control of Sexually Transmissible Disease Act.”   Both of these statutes used the term “sexual intercourse,” but the later statute removed the earlier statute’s explicit application only to mixed-sex couples.

In an early case decided under the new law, the 2nd District court confronted a motion by a gay man to rule that the statute did not apply to him.  Looking for a statutory definition of “sexual intercourse” elsewhere in the Florida penal laws, the court found the incest statute, which defines “sexual intercourse” as “the penetration of the female sex organ by the male sex organ.”  That court concluded that when the legislature defines a phrase in one sex crimes statute, it is appropriate to use that definition in other sex crimes statutes.  Thus, it concluded – rather nonsensically, given the context – that the legislature’s use of the phrase “sexual intercourse” in the sexually-transmitted disease statute “is clearly and unambiguously limited to heterosexual penile-vaginal intercourse,” so the statute did not apply to that gay defendant’s case.

Gary Debaun’s charged violation was particularly egregious. His prospective sex partner had asked him for proof that he was not infected with HIV, and he responded by forging his doctor’s name on a lab test form to certify that he had tested negative for the virus.  He knew he was positive, but did not want to disclose that fact.  Somehow his partner later discovered after having sex with him that Debaun was positive and reported the crime, helping police detectives obtain an admission from Debaun during a “controlled phone call.”

Debaun moved to dismiss resulting the felony charge by citing the 2nd District Court of Appeals ruling.  At the time, this was the only Florida appellate ruling on point, and the trial judge followed it, granting the motion.  The state appealed, and the 3rd District reversed, resorting to dictionary definitions of “sexual intercourse,” which go beyond the traditional heterosexual definition.  The 3rd District also relied on the legislative history of the statute.  If the legislature’s intention was to deter and punish conduct that could spread HIV, it would not make sense to limit the law’s application to heterosexual intercourse.  The 3rd District court concluded that the legislature clearly intended to adopt the broader interpretation.  Debaun appealed this ruling to the Supreme Court.

While Debaun’s appeal was pending, the 5th District Court of Appeals had occasion to rule in a similar case, also reversing a trial court’s dismissal of charges against a gay man, where the trial court had relied on the 2nd District ruling.  That case didn’t get up to the Supreme Court because the defendant did not file a timely notice of appeal.

The Supreme Court, ruling unanimously, agreed with the 3rd District’s approach.  Where the legislature does not spell out the meaning of a term it uses in a statute, Justice Charles Canady wrote for the court, “the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.”  The first place to look for plain meaning, said the court, is the dictionary.

Justice Canady quoted from Webster’s Third New International Dictionary, the American Heritage Dictionary, and Merriam-Webster’s Collegiate Dictionary, all of which define the term to apply more broadly to genital sex acts beyond penile-vaginal intercourse. The court found this broader definition consistent with the legislative intent, in which preventing HIV transmission was the particular spur to replacing the old law with the new one.  Citing statistics from the federal Centers for Disease Control and Prevention website, the court noted that gay and bisexual men “accounted for the majority (67%) of new HIV infections” in 2014, and as of 2013 made up a majority of the people living with HIV infection in the United States.

Thus, adopting the broader interpretation produces a reasonable result, as it “gives full effect to the Legislature’s intent to reduce the incidence of HIV.”

Furthermore, looking to other statutory provisions as a guide to meaning is inappropriate unless “the provision to which a court looks” is “related to the provision lacking a definition.” The court found that the incest provision relied upon by the 2nd District is not so related.  The legislative concern there is with “the prevention of pregnancies which may involve a high risk of abnormal or defective offspring” when the man and the woman are closely related to each other.  That policy concern is not present when both parties to the sexual act are men or are women.

The court also found that the 2nd District had neglected to look at some more recent Florida cases that had defined “sexual intercourse” to apply to two males in other contexts.  And the court rejected application of the “rule of lenity” by which criminal statutes are strictly construed, finding that “the term ‘sexual intercourse’ is commonly understood to broadly refer to various sexual acts – including the sexual act at issue here.  In certain contexts, the term refers specifically – that is, more narrowly – to penile-vaginal intercourse.  But in the context of [the sexually transmitted disease statute], ‘sexual intercourse’ unambiguously denotes sexual conduct that includes acts of oral and anal intercourse,” wrote Justice Canady.

 

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11th Circuit Panel Splinters Over Lesbian’s Appeal of Title VII Dismissal

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit issued a divided ruling on March 10 holding that a lesbian plaintiff suing for discrimination under Title VII of the Civil Rights Act of 1964 could file an amended complaint alleging that she suffered discrimination because of sex stereotyping, but upholding the district court’s dismissal of her claim that sexual orientation discrimination violates the statute.  A dissenting judge, agreeing with the Equal Employment Opportunity Commission (EEOC), which submitted an amicus brief in the case, and Lambda Legal, which was appointed to represent the plaintiff on appeal, argued that the plaintiff should be allowed to pursue her sexual orientation discrimination claim as well.  Lambda Legal, representing the appellant, immediately announced that it would petition for rehearing “en banc” before the entire 11th Circuit bench.

Unsurprisingly, the judges rejecting the sexual orientation claim, Circuit Judge William Pryor and Florida District Judge Jose Martinez, were appointed by President George W. Bush.  The dissenter, Circuit Judge Robin Rosenbaum, was appointed by President Barack Obama.

This case is one of appeals recently argued in three different federal circuits presenting the question whether sexual orientation discrimination claims are covered as “discrimination because of sex” under Title VII.  The Chicago-based 7th Circuit heard argument “en banc” on November 30, and the New York-based 2nd Circuit heard three-judge panel argument in two different appeals in January. So far, no federal circuit court has ruled favorably on such a claim, although many have ruled that gay plaintiffs can sue under Title VII on gender-based sex stereotyping claims, depending on their factual allegations.  There are older court of appeals precedents in most circuits rejecting sexual orientation discrimination claims, as such, under Title VII.  The Supreme Court has never directly ruled on the question.

In this case, Evans v. Georgia Regional Hospital, plaintiff Jameka Evans claimed that she was discriminated against in her position as a security officer at the hospital because of both gender non-conformity and sexual orientation.  Evans is a “butch” lesbian who claims she was discriminated against because she failed to carry herself in a “traditional womanly manner” and that “it was ‘evident’ that she identified with the male gender, because of how she presented herself – ‘(male uniform, low male haircut, shoes, etc.’),” wrote Judge Martinez.

She filed her case in federal district court in Savanah, Georgia, without a lawyer (“pro se”). The district judge, J. Randal Hall, referred her case to a magistrate judge to rule on procedural issues and “screen” the claim, as is usually done with “pro se” cases.  Magistrate Judge George R. Smith found procedural problems and, applying old circuit precedent, held that the claim of sexual orientation discrimination could not be brought under Title VII.  Smith recommended dismissal of the case. Lambda Legal submitted an amicus brief, urging Judge Hall to reject the Magistrate’s recommendation, but Hall dismissed without reference to Lambda’s arguments.  However, Hall then appointed Lambda to represent Evans on appeal to the 11th Circuit, and Gregory Nevins from Lambda’s Atlanta office argued the appeal.  The hospital never responded to the complaint and was not represented at the one-sided argument before the court of appeals.

At the heart of this appeal and of the other pending cases on the same question is the effect of two Supreme Court rulings, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services. In the first of these, the Court ruled that an employer’s denial of a partnership to a woman because of her failure to conform to the employer’s stereotyped view of how women should behave and present themselves was evidence of discrimination “because of sex” in violation of Title VII.  In the second, the Supreme Court overturned the lower court’s dismissal of a same-sex harassment case in a unanimous opinion authored by Justice Antonin Scalia holding that the interpretation of discrimination “because of sex” was not limited based on the intentions of Congress when it enacted the statute in 1964.  Scalia commented that “comparable evils” to those that Congress sought to address might be covered by the statute, and that we are governed by the language of our statutes as adopted by Congress, not by the presumed intentions expressed by individual legislators or committees as reflected in the legislative history.  Thus, a claim by a man that he was subjected to sexual harassment by male co-workers could be dealt with under Title VII, even if members of Congress did not anticipate or intend that such cases could be brought under Title VII.

LGBT rights advocates have used these two Supreme Court cases to argue that gay and transgender plaintiffs who suffer discrimination because of their sexual orientation or gender identity should be able to bring sex discrimination claims under Title VII. Sex stereotyping is arguably present to some extent in all such cases and, at a more fundamental level, anti-gay and anti-trans discrimination is “necessarily” because of sex.  These arguments persuaded the EEOC during the Obama Administration, resulting in administrative rulings in cases raised by LGBT federal employees, and have also persuaded some federal district judges.  Several federal courts of appeals have accepted the sex stereotyping argument, but only to a limited extent, according to the extensive concurring opinion in Evans’s case by Judge Pryor.  So far, no federal circuit court has accepted the argument that an otherwise gender-conforming gay person can bring a sex discrimination claim under Title VII.

Judge Martinez premised his vote to reject the sexual orientation discrimination claim on a 1979 decision by the 5th Circuit, Blum v. Gulf Oil Corporation, 597 F.2d 936, in which that court said that “discharge for homosexuality is not prohibited by Title VII” as an alternative basis for its ruling.  Effective on September 30, 1981, a statute divided the old 5th Circuit in half, assigning Georgia to the newly-created 11th Circuit. At that time, the 11th Circuit ruled that former 5th Circuit cases would be treated as precedent in the new 11th Circuit, so this case counts as a binding circuit precedent.  Lambda argued that the 1979 ruling is no longer valid in light of the 1989 Price Waterhouse decision and the 1999 Oncale decision.  Martinez and Pryor both rejected that argument, but dissenting Judge Rosenbaum embraced it.  At the oral argument, Judge Pryor had observed that in light of the Blum precedent, the three judge panel most likely could not rule in favor of Evans on this point, as only an en banc panel could reverse circuit precedents.

As to the sex stereotyping claim, Martinez asserted that Evans’ pro se complaint “failed to plead facts sufficient to create a plausible inference that she suffered discrimination. In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.”  However, he wrote, it was inappropriate for the district judge to dismiss her case outright rather than allowing her to file an amended complaint, since her theory of sex stereotyping discrimination was a theory accepted in the 11th Circuit and it was possible that, in light of the court’s discussion of her claim, she might be able to meet these pleading deficiencies in an amended complaint.  It is customary in pro se cases to allow the plaintiff to file an amended complaint if she is asserting a claim under a valid legal theory and there is a possibility that a better framed complaint could survive screening.

Pryor’s concurring opinion agreed that the magistrate erred in asserting that a sex stereotyping argument by a lesbian plaintiff was just “another way to claim discrimination based on sexual orientation,” and thus Evans should get a second chance to frame a complaint that might survive review. However, he argued at length to refute the arguments by the EEOC and Judge Rosenbaum that sexual orientation discrimination claims were “necessarily” sex discrimination claims.  Pryor insisted on a strict distinction between “status” and “conduct,” arguing that sex stereotyping claims were tied to the plaintiff’s conduct in failing to conform to gender stereotypes.  Thus, a claim of sexual orientation discrimination not accompanied by factual allegations about the plaintiff’s gender non-conformity fell short, in his view, of coming within the compass of discrimination “because of sex.”  He was not willing to accept the argument that being sexually attracted to members of the same-sex would suffice to constitute non-conformity with sexual stereotypes.

Judge Rosenbaum took a diametrically opposite approach, embracing a theoretical description of how Price Waterhouse had changed Title VII law by extending prior sex stereotyping cases to adopt a “prescriptive stereotyping” model. In prior cases, the Supreme Court had condemned “ascriptive stereotyping,” situations where an employer discriminated against a class of employees because of a stereotype about the class.  For example, an employer required women to contribute more to its pension plan than men in order to get the same monthly benefits upon retirement, based on the stereotype that women live longer than men so it would all “even out” in the end.  The Supreme Court condemned this practice as sex discrimination, finding that the statute protects individuals from being treated based on class-based stereotypes.  In Price Waterhouse, the Court for the first time condemned “prescriptive stereotyping,” where an employer discriminated against an employee because she failed to conform to a sexual stereotype, presenting a demeanor which was not traditionally feminine.

Applying this to the sexual orientation case, Rosenbaum accepted the argument that in such cases the employer was discriminating because the employee violated the stereotypical view that men are supposed to be attracted to women, not to men, and vice versa. Furthermore, she found that it was clearly sex discrimination to treat a woman differently based on whether she was attracted to men or women.

Judge Rosenbaum argued that Pryor’s opinion was “at war” with his vote a decade ago that allowed a sex discrimination claim under the Equal Protection Clause by a transgender employee of the Georgia legislature. Indeed, Pryor’s vote in the former case, Glenn v. Brumby, had given the plaintiff hope in this case that the panel might rule in her favor.  Pryor devoted considerable effort in his concurring opinion to explaining why he found this case to be different, once again relying on the “status” and “conduct” distinction.  Cross-dressing and announcing plans to transition were “conduct,” in his view, while having a sexual orientation was “status.”  He argued that sex stereotyping theory was concerned with conduct, not status, in its focus on gender non-conformity.

The sharp division among the judges may lead the 11th Circuit to agree to hear the case en banc, especially noting that one member of the panel was a district judge.  The federal judiciary is so short-handed as a result of the Republican-controlled Senate’s stonewalling of President Obama’s court of appeals nominees during his second term that it has become increasingly common for some particularly short-staffed circuits to fill-out three-judge panels by “designating” district court judges to provide the third member to make up a panel.  These district judges do not participate if the case is reargued en banc.  Furthermore, with the 7th Circuit having held en banc argument on this question recently, it seems clear that many federal judges believe it is time to reconsider the issue.  Meanwhile, decisions from the 7th and 2nd Circuits are eagerly awaited, especially if they create a “circuit split” that would entice the Supreme Court to agree to take up the issue.

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9th Circuit En Banc Panel Revives Gay Mexican’s Asylum Claim

An eleven-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit revived an HIV-positive gay Mexican man’s claim for refugee status to remain in the United States on March 8, reversing rulings by a three-judge panel of the court, the Board of Immigration Appeals, and an Immigration Judge.  The opinion for the court in Bringas-Rodriguez v. Sessions, 2017 U.S. App. LEXIS 4077, 2017 WL 908546, was written by Judge Kim McLane Wardlaw, a Clinton appointee.  One member of the court, Judge Richard R. Clifton, filed a concurring opinion, and two members, Judges Carlos T. Bea and Diarmuid O’Scannlain, dissented in an opinion by Judge Bea.  Bea, appointed by George W. Bush, and O’Scannlain, appointed by Ronald Reagan, are among the most conservative judges on the 9th Circuit.  The reversed three-judge panel consisted of two George W. Bush appointees and a dissenting Clinton appointee, William Fletcher.

Carlos Alberto Bringas-Rodriguez, born in Tres Valles, Veracruz State, was, according to Judge Wardlaw’s summary of his testimony, which was deemed credible by the Immigration Judge, “horrifically abused by his father, an uncle, cousins, and a neighbor, all of whom perceived him to be gay or to exhibit effeminate characteristics.”  Bringas testified that his uncle raped him when he was four, and that three of his cousins and a male neighbor “physically and sexually abused him on a regular basis while he lived in Mexico.”  He also suffered regular beatings from his father, who told him, “Act like a boy.  You are not a woman.”  He claims his uncle told him when he was eight that he was being abused because he was gay.  “His uncle, cousins, and neighbor never called him by his name,” wrote Wardlaw, “referring to him only as ‘fag, fucking faggot, queer,’ and they ‘laughed about it.’”

Bringas lived briefly with his mother in the U.S. when he was twelve, but he returned to Mexico because he missed his grandmother, who had been raising him since he was nine.  The abuse intensified when he returned.  “On one occasion, when Bringas refused to comply with his neighbor’s demand for oral copulation, the neighbor beat and raped him, leaving Bringas with black eyes and bruises,” and his abusers “also threatened to hurt his grandmother, with whom he was close, if he ever reported what was happening,” wrote Wardlaw.  “Fearing that they would follow through on their threats, Bringas did not tell his mother, teachers, or anyone else about the sexual abuse.”  He fled back to the U.S. in 2004 when he was fourteen.

Entering the country illegally at El Paso, he made his way to Kansas where he lived with his mother for the next three years.  Then he moved out of his mother’s home, living elsewhere in Kansas and in Colorado, holding several jobs.  In August 2010 he pled guilty to “attempted contributing to the delinquency of a minor” in Colorado.  According to his account, as related by Wardlaw, “he had been at home drinking with some friends when another friend brought over a minor who became drunk.”  Bringas served 90 days in jail, “during which time he attempted suicide and was hospitalized, which precipitated his finally telling a doctor and then his mother about his childhood abused.”  His conviction triggered a notice to the Department of Homeland Security, which immediately issued him a “Notice to Appear.”

The next year, at age 20, he applied for asylum, withholding of removal, and protection under the Convention against Torture (CAT).  Asylum claims normally have to be filed within a year of arrival in the U.S., but he claimed he had been “unaware” at age 14 that he could apply for asylum, and only learned of this when he “spoke with an ICE officer in Colorado in September 2010” when he responded to the Notice to Appear.  In his application, he described the abuse he had suffered in Mexico and “explained that he feared persecution if he returned because he was gay and that the Mexican police would not protect him.  Bringas also credibly testified about his gay friends’ experiences with police in Veracruz.  Those friends went to the police to report that they had been raped, but the officers ignored their reports and ‘laughed [on] their faces.’”  He also submitted State Department country human rights reports on Mexico from 2009 and 2010, as well as newspaper articles documenting violence against gays in Mexico, which showed that violence was rising even as “Mexican laws were becoming increasingly tolerant of gay rights.”  In a footnote, Judge Wardlaw cited guidelines issued by the United Nations High Commissioner for Refugees, explaining that “legal improvements and widespread persecution are not mutually exclusive.”

An Immigration Judge found Bringas’ factual testimony to be credible, but denied his application, as did the Board of Immigration Appeals (BIA) on his appeal.  The IJ found that his asylum claim was untimely under the one-year rule, a point that the BIA ignored, treating his asylum claim on the merits.  Next, the IJ found, and the BIA recognized, that although Bringas had suffered “serious abuse” as a child, he did not show that the “abuse was inflicted by government actors or that the government was unwilling or unable to control his abusers.”  This was a critical finding, because the basis for establishing refugee status is to show persecution at the hands of the government or private actors whom the government is unwilling or unable to control.  Purely private abuse, as such, is not considered to be “persecution” under relevant statutes and treaties.  Having found that Bringas had not established “past persecution,” the BIA approved the IJ’s finding that there was no presumption that he had a reasonable fear of future persecution in Mexico, because he had “failed to show a pattern or practice of persecution of gay men in Mexico.”  The BIA wrote that “the record did not demonstrate widespread brutality against homosexuals or that there was any criminalization of homosexual conduct in Mexico.”  Indeed, the BIA found that the Mexican government “has taken numerous positive steps to address the rights of homosexuals.”  The IJ and BIA found no evidence that Bringas was likely to be tortured by the government if he were removed back to Mexico.

The three-judge panel of the 9th Circuit considering his appeal focused on a prior circuit ruling, Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), concerning cases where the applicant’s abusers were all private citizens, which held that in order to establish that the government was unwilling or unable to control the abusers, the victim had to have reported the abuse to the government.  Wrote Wardlow, “the panel majority reasoned that where a victim fails to report abuse, even as a child, ‘there is a “gap in proof about how the government would have responded,”’ and that petitioner bears the burden to ‘fill in the gaps’ by showing how the government would have responded had he reported the abuse.”  The 3-judge panel emphasized the part of the State Department country reports that discussed how Mexican law had improved for gay people, including the government’s establish of a “specialized hate crimes prosecution unit” and the proclamation of a “national day against homophobia.”  The panel found “insufficient” Bringas’s testimony about the comments by his gay friends in the U.S. about how the police had failed to respond to their reports of abuse.  “Even if the friends’ reports were credited, the panel majority explained, those reports failed to establish that police practices in the city or state of Veracruz could be linked to police practices in Tres Valles, Bringas’s hometown.”

The panel majority, in common with the IJ in this case, also suggested that the issue here was not narrowly sexual abuse because of homosexuality, but rather the more general phenomenon of sexual abuse of children, and suggested that there was no evidence that the Mexican law enforcement authorities would be indifferent to reports of child sexual abuse.  In this connection, they noted that Bringas’s testimony did not specify how old his friends were when they unsuccessfully reported their abuse to the police.

Judge William Fletcher, the dissenting member of the 3-judge panel, expressed growing discomfort about the prior precedent upon which the majority of that panel was relying, pointing to the circuit’s “ample precedent that does not require victims of private persecution, especially child victims, to contemporaneously report their abuse to government authorities in order to become eligible for asylum in the United States.”

The en banc panel majority, reversing the 3-judge panel, embraced Judge Fletcher’s criticism, citing extensive evidence about the psychological and practical problems a child victim of sexual abuse would have in reporting the abuse to authorities, especially if they or their loved ones were threatened with retribution if they made any report, as had happened in Bringas’s case with threats to harm his grandmother.  Going further, the en banc panel overruled the prior precedent to the extent that it had been relied on as requiring reporting to the authorities in a case founded on abuse by non-governmental actors in order to establish “persecution” for purposes of asylum or withholding of removal.

While it was clear in this case that the asylum claim was filed too late, the court determined that Bringas’s claims for withholding of removal and protection under the CAT must be reconsidered by the Board.  The court found Bringas’ testimony, which had been deemed credible by the IJ and the BIA, sufficient to establish that he had been subjected to past persecution, and based on that testimony he was entitled to a presumption of further persecution.  Sending the case back to the BIA, the court said the remaining issue was whether that presumption had been rebutted by the government’s evidence of changed conditions in Mexico.

Furthermore, while this case was in progress, but after the BIA issued its opinion, Bringas learned for the first time that he was HIV-positive.  He had asked to reopen the case in order for the BIA to take this new information into account, but the BIA refused his request, observing that he had failed to show “how his status as an HIV positive homosexual changes the outcome of his case.”  The court ordered that BIA allow Bringas to supplement the record and to take account of new evidence about his HIV diagnosis.

Judge Clifton concurred on narrower grounds.  He felt, along with Judge Bea’s dissent, that the court’s opinion was insufficiently deferential to the BIA, which as a matter of administrative law is entitled to substantial deference by the courts and should not be reversed unless “any reasonable adjudicator would be compelled to conclude to the contrary based on evidence in the record.”  To Clifton, the evidence presented by Bringas about the unwillingness or inability of the government to address sexual abuse of gay children was not overwhelming, relying on “an unspecific hearsay report by Bringas of what he was told by one or two other persons about what had happened when a report was made to police in a different town.  That evidence would have been sufficient to support a conclusion that a report by a child to the police would have been futile, but it was not so powerful that no reasonable adjudicator could have found to the contrary,” he wrote.  He also noted that much of Bringas’ evidence was rather general and did not necessarily compel the conclusions reached by the majority of the court as to his persecution case.

On the other hand, Clifton found that the BIA “appeared to disregard the evidence that Bringas offered on the subject,” so it was appropriate to remand for reconsideration.  The IJ had written that there “was ‘no evidence whatsoever’ to support Bringas’s contention that a police report would have been futile, and it did not reflect any awareness of the evidence to that effect,” and the BIA’s opinion did not correct that misstatement.  While Clifton agreed the case should be sent back, he, unlike the majority, “would not dictate the answer to that past persecution question” but rather allow the BIA to reweigh the evidence.

Judge Bea’s dissent, as mentioned by Judge Clifton, focused on the court’s failure to accord sufficient deference to the BIA’s decision, emphasized the weak points in Bringas’s testimony, and accused the majority of mischaracterizing the precedent that it was overruling.  He also argued that the situation facing Bringas at age 14 was very different from the situation he would face today as an adult if returned to Mexico, pointing out further that the record showed that conditions for gay men in Mexico varied.  If returned to Mexico, Bringas would not have to live in Veracruz, but could instead locate in Mexico City, a jurisdiction that has legislated for same-sex marriage, supports gay pride marches, and is notably gay-friendly.

It will be interesting to see whether the government will seek Supreme Court review of this en banc ruling from the 9th Circuit.  The new Attorney General, Jeff Sessions, was substituted as Respondent for his predecessor, Loretta Lynch, upon taking office.  As this ruling may make it easier for Mexican asylum applicants to win the right to remain in the United States, the Trump Administration may seize upon it as a vehicle to tighten up on the asylum process by winning a reversal.  Certainly the Administration would have an interest in establishing deference for the BIA, given the ability of the President and Attorney General to influence the policies of that agency through appoints to the Board. In light of the timing, any review would take place after Trump’s nominee to fill the vacant seat on the Court takes the bench, re-establishing a majority of Republican appointees on the Court.

This en banc reconsideration of Bringas’s case was considered a big deal by the immigrants’ rights and civil liberties communities.  Dean Erwin Chemerinsky of the University of California (Irving) School of Law argued the appeal, with the Appellate Litigation Clinic at his school representing Bringas together with pro bono attorneys from major California law firms.  The government’s case was argued by relatively high level attorneys from the Justice Department in Washington.  Several amicus briefs were filed in support of Bringas’s appeal, including a wide variety of public interest groups, including Lambda Legal, National Center for Lesbian Rigths, the National Immigrant Justice Center, the HIV Law Project, the Transgender Law Center.  An amicus brief was submitted on behalf of Alice Farmer, the United Nations High Commissioner for Refugees, by Williams & Connolly LLP, a major national law firm that frequently appears before the Supreme Court.

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Supreme Court Will Not Decide Transgender Title IX Case This Term

The Supreme Court will not decide this term whether Title IX of the Education Amendments of 1972 and an Education Department regulation, 34 C.F.R. Section 106.33, require schools that receive federal money to allow transgender students to use restrooms consistent with their gender identity. Gloucester County School Board v. G.G., No. 16-273 (Summary Disposition, March 6, 2017).  Title IX states that schools may not discriminate because of sex if they get federal money, and the regulation allows schools to provide separate restroom and locker room facilities for boys and girls so long as they are “equal.”

Responding to a February 22 letter from the Trump Administration, advising the Court that the Education and Justice Departments had “withdrawn” two federal agency letters issued during the Obama Administration interpreting the statute and regulation to require allowing transgender students to use facilities consistent with their gender identity, the Court announced on March 6 that it was “vacating” the decision by the 4th Circuit Court of Appeals in the case of transgender high school student Gavin Grimm, which it had previously agreed to review, and sending the case back to the 4th Circuit for “further consideration in light of the guidance document issued by the Department of Education and Department of Justice.”  The case had been scheduled for argument on March 28.

This result was not unexpected, although both parties in the case, Grimm and the Gloucester County, Virginia, School District, had asked the Court to keep the case on the docket and decide whether Title IX and the bathroom regulation required the district to let Grimm use boys’ restrooms at the high school. Represented by the ACLU LGBT Rights Project, Grimm urged the Court to hold the previously scheduled hearing.  The school district urged the Court to delay the hearing, in order to give the Trump Administration an opportunity to weigh in formally, but then to hear and decide the case.  Had the Court granted the school district’s request, the case might have been argued before the end of the Court’s current term or delayed to next fall.

The case dates back to 2015, when Grimm and his mother had met with school administrators during the summer prior to his sophomore year to tell them about his gender transition and they had agreed to let him use the boys’ restrooms, which he did for several weeks with no problems. Complaints by parents led the school board to adopt a resolution requiring students to use restrooms consistent with the sex indicated on their birth certificates – so-called “biological sex” – regardless of their gender identity.  The school also provided an alternative, unacceptable to Grimm, of using a single-user restroom that he found inconvenient and stigmatizing.

Grimm sued the school district, alleging a violation of his rights under Title IX and the 14th Amendment. The Education Department sent a letter at the request of the ACLU informing the district court that the Department interpreted Title IX and the bathroom regulation as “generally” requiring schools to let transgender students use facilities consistent with their gender identity.  Following the lead of several federal courts and the Equal Employment Opportunity Commission interpreting other federal statutes that forbid sex discrimination, the Obama Administration took the position that laws against sex discrimination protect people from discrimination because of their gender identity.

The district judge, Robert Doumar, rejected the Obama Administration’s interpretation and granted the school district’s motion to dismiss the Title IX claim on September 17, 2015 (132 F. Supp. 3d 736), while reserving judgment on Grimm’s alternative claim that the policy violated his right to equal protection of the law guaranteed by the 14th Amendment.  Doumar opined that when adopting Title IX in 1972, Congress had not intended to forbid gender identity discrimination, notwithstanding the Obama Administration’s more recent interpretation of the statute.

The ACLU appealed Doumar’s ruling to the Richmond-based 4th Circuit, where a three-judge panel voted 2-1 on April 19, 2016 (822 F.3d 709), to reverse Judge Doumar’s decision.  The panel, applying a Supreme Court precedent called the Auer Doctrine, held that the district court should have deferred to the Obama Administration’s interpretation of the bathroom regulation because the regulation was ambiguous as to how transgender students should be accommodated and the court considered the Obama Administration’s interpretation to be “reasonable.”  A dissenting judge agreed with Judge Doumar that Title IX did not forbid the school district’s policy. The panel voted 2-1 to deny the school district’s motion for rehearing by the full 4th Circuit bench on May 31 (824 F.3d 450).

Shortly after the 4th Circuit issued its decision, the Education and Justice Departments sent a “Dear Colleague” letter to school administrators nationwide, advising them that the government would interpret Title IX to protect transgender students and providing detailed guidance on compliance with that requirement.  The letter informed recipients that failure to comply might subject them to Education Department investigations and possible loss of eligibility for federal funding.  This letter stirred up a storm of protest led by state officials in Texas, who filed a lawsuit joined by ten other states challenging the Obama Administration’s interpretation as inappropriate.  Subsequently another lawsuit was filed in Nebraska by state officials joined by several other states making the same argument.

Judge Doumar reacted quickly to the 4th Circuit’s reversal of his ruling, issuing a preliminary injunction on June 23 requiring the school district to allow Grimm to use boys’ restrooms while the case proceeded on the merits (2016 WL 3581852).  The 4th Circuit panel voted on July 12 to deny the school district’s motion to stay the preliminary injunction, but on August 3 the Supreme Court granted an emergency motion by the school district to stay the injunction while the district petitioned the Supreme Court to review the 4th Circuit’s decision (136 S. Ct. 2442).

It takes five votes on the Supreme Court to grant a stay of a lower court ruling pending appeal. Usually the Court issues no written opinion explaining why it is granting a stay.  In this case, however, Justice Stephen Breyer issued a one-paragraph statement explaining that he had voted for the stay as a “courtesy,” citing an earlier case in which the conservative justices (then numbering five) had refused to extend such a “courtesy” and grant a stay of execution to a death row inmate in a case presenting a serious 8th Amendment challenge to his death sentence.  Justices Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan indicated that they would have denied the motion, so all four of the conservative justices had voted for the stay.  Since it takes five votes to grant a stay but only four votes to grant a petition for certiorari (a request to the Court to review a lower court decision), it was clear to all the justices that the school district’s subsequent petition for review would be granted, and it was, in part, on October 28 (137 S. Ct. 369).

Meanwhile, however, U.S. District Judge Reed O’Connor in Wichita Falls, Texas, had granted a “nationwide” preliminary injunction later in August in the Texas case challenging the Obama Administration guidance, blocking federal agencies from undertaking any new investigations or initiating any new cases involving gender identity discrimination claims under Title IX. Texas v. United States, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016).  The Obama Administration filed an appeal with the Houston-based 5th Circuit Court of Appeals, asking that court to cut down the scope of O’Connor’s injunction to cover just the states that had joined that lawsuit, pending litigation on the merits in that case.

The Gloucester school district’s petition for certiorari asked the Supreme Court to consider three questions: whether its doctrine of deferral to agency interpretations of regulations should be abandoned; whether, assuming the doctrine was retained, it should be applied in the case of an “unpublished” letter submitted by the agency in response to a particular lawsuit, and finally whether the Obama Administration’s interpretation of Title IX and the regulation were correct.  The Court agreed only to address the second and third questions.

Donald Trump was elected a week later. During the election campaign, he stated that he would be revoking Obama Administration executive orders and administrative actions, so the election quickly led to speculation that the Gloucester County case would be affected by the new administration’s actions, since the Guidance had been subjected to strong criticism by Republicans.  This seemed certain after Trump announced that he would nominate Senator Jeff Sessions of Alabama to be Attorney General, as Sessions has a long history of opposition to LGBT rights.  The announcement that Trump would nominate Betsy DeVos to be Secretary of Education fueled the speculation further, since her family was notorious for giving substantial financial support to anti-LGBT organizations.  It seemed unlikely that the Obama Administration’s Title IX Guidance would survive very long in a Trump Administration.

The other shoe dropped on February 22, just days before the deadline for submission of amicus curiae (“friend of the court”) briefs on behalf of Gavin Grimm.   The Solicitor General’s office had not filed a brief in support of the school district at the earlier deadline, and there had been hope that the government would file a brief on behalf of Grimm or just stay out of the case.  According to numerous press reports, Secretary DeVos, who reportedly does not share her family’s anti-gay sentiments, had not wanted to withdraw the Guidance, but Attorney General Sessions insisted that the Obama Administration letters should be withdrawn, and Trump sided with Sessions in a White House showdown over the issue.

The February 22 “Dear Colleagues” letter was curiously contradictory, however. While announcing that the prior letters were “withdrawn” and their interpretation would not be followed by the government, the letter did not take a position directly on whether Title IX applied to gender identity discrimination claims.  Instead, it said that further study was needed on the Title IX issue, while asserting that the question of bathroom access should be left to states and local school boards and that schools were still obligated by Title IX not to discriminate against any students, regardless of their sexual orientation or gender identity.  The letter was seemingly an attempt to compromise between DeVos’s position against bullying and discrimination and Sessions’ opposition to a broad reading of Title IX to encompass gender identity discrimination claims.  White House Press Secretary Sean Spicer said that the question of Title IX’s interpretation was still being considered by the administration.

In any event, the Obama Administration interpretation to which the 4th Circuit panel had deferred was clearly no longer operative, effectively rendering moot the first question on which the Supreme Court had granted review.  Although the parties urged the Court to continue with the case and address the second question, it was not surprising that the Court decided not to do so.

The usual role of the Supreme Court is to decide whether to affirm or reverse a ruling on the merits of a case by the lower court. In this case, however, the 4th Circuit had not issued a ruling on the merits as such, since the basis for its ruling was deference to an administrative interpretation.  The 4th Circuit held that the Obama Administration’s interpretation was “reasonable,” but not that it was the only correct interpretation of the regulation or the statute.  The only ruling on the merits in the case so far is Judge Doumar’s original 2015 ruling that Grimm’s complaint failed to state a valid claim under Title IX.  Thus, it was not particularly surprising that the Supreme Court would reject the parties’ request to hear and decide the issue of interpretation of Title IX, and instead to send it back to the 4th Circuit to reconsider in light of the February 22 letter.  The Court usually grants review because there are conflicting rulings in the courts of appeals that need to be resolved. Here there are no such conflicting rulings under Title IX and the bathroom regulation, since the only other decisions on this question are by federal trial courts.

After issuing its February 22 letter, the Justice Department abandoned its appeal of the scope of Judge O’Connor’s preliminary injunction in the Texas case and asked the 5th Circuit to cancel a scheduled argument, which it did.  Furthermore, withdrawal of the Obama Administration Guidance rendered the Texas v. U.S. case moot, since the relief sought by the plaintiffs was a declaration that the Guidance was invalid, so Judge O’Connor will dissolve his injunction and the case will be withdrawn, as will be the Nebraska case.

In the meantime, there are several other relevant cases pending. The Cincinnati-based 6th Circuit and the Philadelphia-based 3rd Circuit will be considering appeals from district court rulings on transgender student rights from Ohio and Pennsylvania, there are cases pending before trial courts elsewhere, and there are multiple lawsuits pending challenging North Carolina’s H.B. 2, which among other things mandates that transgender people in that state use public restrooms consistent with their birth certificates.  One case challenging H.B. 2 was filed by the Obama Justice Department and may be abandoned by the Trump Administration.  But the 4th Circuit is shortly to hear arguments on an appeal filed by three transgender plaintiffs who are students or staff members at the University of North Carolina, who won a preliminary injunction when the trial judge in their case, filed by the ACLU and Lambda Legal, deferred to the Obama Administration Guidance as required by the 4th Circuit’s ruling in Grimm’s case, but declined to rule on the plaintiffs’ claim that H.B. 2 also violated their constitutional rights.  Carcano v. McCrory, 2016 WL 4508192 (M.D.N.C. Aug. 26, 2016). The appeal is focused on their constitutional claim and their argument that the preliminary injunction, which was narrowly focused on the three of them, should have been broadly applied to all transgender people affected by H.B. 2.  The case pending in the 3rd Circuit also focuses on the constitutional claim, as a trial judge in Pittsburgh ruled that a western Pennsylvania school district violated the 14th Amendment by adopting a resolution forbidding three transgender high school students from using restrooms consistent with their gender identity. Evancho v. Pine-Richland School District, 2017 U.S. Dist. LEXIS 26767, 2017 WL 770619 (W.D. Pa. Feb. 27, 2017).

Meanwhile, Gavin Grimm is scheduled to graduate at the end of this spring semester, which may moot his case since he was seeking injunctive relief to allow him to use the boys’ restrooms, unless the court is convinced that a live controversy still exists because the school district’s policy continues in effect and will still prevent Grimm from using the boys’ restrooms if he come to the school to attend alumni events.

It seems likely that whatever happens next in the Gavin Grimm case, the issue of transgender people and their access to gender-identity-consistent public facilities will continue to be litigated in many federal courts in the months ahead, and may be back to the Supreme Court soon, perhaps as early as its 2017-18 Term. By then, the Court is likely to be back to a five-member conservative majority, assuming the Senate either confirms Trump’s nomination of Judge Neil Gorsuch or, if that stalls, another conservative nominee.  It is even possible that Trump may have a second vacancy to fill before this issue gets back to the Court, in which case the plaintiffs may face very long odds against success.

 

 

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Federal Court Denies Preliminary Relief to Gay Victim of Revenge Listings on Grindr

 

A federal judge in Manhattan has denied a gay man’s request to extend a temporary restraining order that had been issued against Grindr, a web-based gay dating app, by a state trial court on the plaintiff’s behalf before the defendant removed the case to federal court.  Herrick v. Grindr, LLC, 2017 WL 744605 (S.D.N.Y., Feb. 24, 2017). 

Matthew Herrick claims that a “former love interest, known as JC, has impersonated him on Grindr by creating profiles bearing Plaintiff’s image and personal information, including his home and work address,” wrote District Judge Valerie Caproni in her ruling on the application to renew the state court’s TRO, which has since expired. “Some of the fake profiles describe Plaintiff as being interested in fetishistic sex, bondage, role playing, and rape fantasies and encourage potential suitors to go to his home or workplace for sex.”  Herrick alleges that “dozens of men” had responded, “some of whom have physically assaulted or threatened Plaintiff and his friends and co-workers.”  In a footnote, the judge says that Herrick “has at times described the total number of persons as ‘approximately 400.’”

Herrick claims that he has sent more than fifty complaints to Grindr, which acknowledges receiving them but has taken no action.  In his state court complaint, as described by Judge Caproni in her opinion, he asserted claims against Grindr for negligence, intentional and negligent infliction of emotional distress, and failure to warn (in connection with Grindr’s alleged failure to monitor its users, prevent abuse of the Grindr application, or respond adequately to his complaints).  He also brought claims for false advertising and deceptive business practices under state law, and a common law claim for negligent misrepresentation based on “Grindr’s alleged misrepresentations regarding the safety of the Grindr user community generally and Grindr’s alleged knowledge of JC’s history of harassment.”

The Manhattan state supreme court responded quickly to Herrick’s January 27, 2017, complaint, issuing a TRO the same day “compelling Grindr to ‘immediately disable all impersonating profiles created under Plaintiff’s name or with identifying information relating to Plaintiff, Plaintiff’s photograph, address, phone number, email account or place of work.”  Grindr then removed the action to federal court, claiming diversity of citizenship as the basis for jurisdiction.  Judge Caproni notes that there may be grounds for contesting the federal court’s jurisdiction. On February 21, Herrick filed his application to the federal court to extend the temporary restraining order, just one day before it was to expire, which Judge Caproni denied after hold a hearing on February 22.

In order to get a temporary restraining order, the plaintiff has to show, in addition to irreparable harm if it is not granted, that there is either a likelihood of success on the merits of his claim or sufficiently serious question going to the merits to make them a fair grounds for litigation and a balance of hardships tipping decidedly in his favor.  When the plaintiff seeks to compel the defendant to do something, not just to refrain from doing something, he has to show that “extreme or very serious damage” will flow from denial of relief.  In this case, Herrick is seeking to compel Grindr to take affirmative action to identify and remove any false postings by JC in this continuing course of harassment.

Judge Caproni assumed that the balance of equities favored Herrick’s request in light of his serious factual allegations of harm.  The problem, however, is that a federal statute apparently shelters Grindr from all, or almost all, of Herrick’s common law claims, and maybe even his claims about false advertising and deceptive business practice.  The Communications Decency Act (CDA), Section 230, protects against liability an “interactive computer service” (ICS) for content created and posted by a third party “information content provider.”  In other words, as interpreted by various federal courts, including the New York-based 2nd Circuit Court of Appeals, Grindr generally can’t be held liable for harm caused by content posted by its users unless it plays an active editorial role in the substance of that content. 

“Plaintiff argues that Grindr is not merely a publisher of third-party content but is also a creator of content by virtue of the sorting and matching functions and geo-locational services that it integrated into the Grindr application,” wrote Caproni.  “While dating applications with Grindr’s functionality appear to represent relatively new technological territory for the CDA, past cases suggest strongly that Plaintiff’s attempt to artfully plead his case in order to separate the Defendant from the protections of the CDA is a losing proposition.  The fact that an ICS contributed to the production or presentation of content is not enough to defeat CDA immunity,” she continued.  “Rather, an ICS only loses its immunity if it assists in the ‘development of what [makes] the content unlawful.’”  “Neutral assistance” won’t lose the immunity.

Judge Caproni found that all the features of the app Herrick specifies as assisting the development of a listing are the kind of “neutral assistance” that does not lose an ICS its immunity under federal law, which would preempt his state law claims.  “The fact that these offerings have been weaponized by a particular Grindr user does not make Grindr the creator of the allegedly tortious content,” she asserted.  “Moreover, to the extent Grindr has ‘contributed’ to the harassment by providing functionality such as geo-location assistance, that is not what makes the false profiles tortious.”

The judge rejected an analogy to the famous Roommates.com case, in which the federal courts in California found that an app had lost its immunity because of the way it elicited information about personal characteristics of potential roommates, putting it in the position of assisting those posting roommate listings in violation of local housing discrimination laws.  “By comparison,” she wrote, “there is nothing inherently illegal about the Grindr features described in the complaint.  Critically, Grindr has not contributed anything to the objectionable profiles; the profiles are objectionable solely because of the false information supplied by Plaintiff’s tormenter.”  She also found that Herrick’s claims were similar to claims that had been rejected by one of her Southern District colleagues in a lawsuit against Craigslist, Gibson v. Craigslist, Inc., 2009 WL 1704355 (S.D.N.Y., June 15, 2009).

Although Herrick’s claims might seem to be viable under state consumer protection laws concerning misrepresentations in advertising, the judge found that his “injuries are so attenuated from the misstatements that it is highly unlikely Plaintiff will be able to prove causation.”  Herrick claims he signed up for Grindr because “he believed Grindr’s advertisements representing Grindr to be a ‘safe space.’  Approximately four years later, Plaintiff met JC on Grindr and began an intimate relationship with him.  More than a year after that, in October 2016, Plaintiff ended his relationship with JC.  Thereafter, JC began using Grindr to harass Plaintiff.  Put slightly differently,” wrote Caproni, “the only connection between Plaintiff’s present day injury and Grindr’s alleged misrepresentations approximately five years ago is the fact that Plaintiff would not have otherwise joined Grindr in 2011 and would not have otherwise met JC.  This is an exceedingly remote connection.  The fact that ‘but for’ Grindr’s advertising, Plaintiff would not have joined Grindr some five years before the harassment relevant to this case – assuming that to be true – is insufficient, standing alone, to establish causation.”

Caproni emphasized that this decision only addressed whether Herrick is entitled to the “extraordinary remedy” of a temporary restraining order” which is based solely on the allegations in his complaint.  Caproni indicated that she would set a briefing schedule for Herrick’s potential motion to send the case back to state court, and “Defendant’s anticipated motion to dismiss” based on the CDA, at a conference scheduled for March 10.  The first release of Caproni’s opinion on Westlaw did not indicate who is representing Herrick in the lawsuit, or even whether he is represented by counsel.

 

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Federal Court Awards Preliminary Restroom Access Relief to Transgender Students on Their Constitutional Claim

Switching the focus from Title IX of the Education Amendments of 1972 to the Equal Protection Clause of the federal Constitution, U.S. District Judge Mark R. Hornak of the Western District of Pennsylvania awarded a preliminary injunction on February 27 to three transgender high school students represented by Lambda Legal who are challenging a school board resolution that bars them from using sex-segregated restrooms that are consistent with their gender identities. Evancho v. Pine-Richland School District, Civil No. 2:16-01537.

Acknowledging the Trump Administration’s February 22 action withdrawing two letters sent by the U.S. Education Department during the Obama Administration on the subject of transgender restroom access under Title IX as well as the pending U.S. Supreme Court consideration of Gloucester County School Board v. G.G. (certiorari granted October 28, 2016), a Title IX claim by Gavin Grimm, a transgender boy from Virginia, against his school district, in which that Court granted the school district’s request to stay a preliminary injunction issued by the district court (see 136 S. Ct. 2442 (Aug. 3, 2016)), Judge Hornak wrote that he “cannot conclude that the path to relief sought by the Plaintiffs under Title IX is at the moment sufficiently clear that they have a reasonable likelihood of success on that claim.”  A “reasonable likelihood” finding is a prerequisite to issuing preliminary relief.

On the other hand, Hornak concluded that the plaintiffs did have such a path under the Equal Protection Clause and decided to blaze a new trail on this issue, in which prior courts have focused their attention almost exclusively on Title IX in line with the general preference of federal courts to rule based on statutes rather than resorting to constitutional rulings.

Hornak prefaced his constitutional analysis with a detailed set of factual findings and a sharp focus on the particular facts of this case, including that the three transgender students involved all began their transitions a few years ago and had been using restrooms consistent with their gender identities without any opposition from school administrators or any disturbance as early as the 2013-14 school year. In each case, they and their parents had met with school administrators, who had agreed to recognize and honor their gender identities in all respects.  Each of them has been living consistent with their gender identity for several years, although because of their ages only one of them has obtained a new birth certificate.  Administrators, teachers and fellow students have consistently used their preferred names and pronouns and treated them accordingly.  It wasn’t until a student mention the restroom use to her parents, who then contacted the school board together with other parents and turned it into an “issue,” that administrators even became aware that the transgender students were using the restrooms, since nobody had complained about it or made it an issue before then.  Ultimately the school board responded to noisy parental opposition at a series of public meetings, first rejecting a resolution allowing the transgender students to use the restrooms consistent with their gender identity by a tie vote, then adopting a contrary resolution by a slim margin.

The judge also pointed out that the boys’ and girls’ restrooms at the Pine-Richland high school were designed with individual privacy in mind, with dividers between the urinals in the boys’ rooms and privacy-protecting stalls with internal locks for the toilets in both rooms. Locker room access is not an issue at this point in the case, since all three plaintiffs have completed their physical education requirements and are not using the locker rooms.  The school also has established numerous single-user restrooms that are accessible to students.  The judge easily concluded, based on uncontested evidence that the restrictive Resolution was not necessary to protecting anybody’s privacy, thus rejecting one of the main justifications advanced by the school board.

Neither the Supreme Court nor the 3rd Circuit Court of Appeals, which has jurisdiction over federal trial courts in Pennsylvania, has ruled on what standard of judicial review applies to government policies that discriminate because of gender identity. The school board argued that this means the court should use the least demanding standard, rationality review, to evaluate its policy.  Judge Hornak rejected that argument, saying, “First, that means that applying an Equal Protection standard other than rational basis in such a setting is not contrary to settled law, and second, when an issue is fairly and squarely presented to a District Court, that Court must address it. Dodging the question is not an option.”  He also observed that an earlier decision by another trial judge in his district involving a transgender student, Johnston v. University of Pittsburgh, 97 F. Supp. 3d 557 (W.D. Pa. 2015), was not binding on him, and he found that case distinguishable on the facts and the law, not least because of the extended period in this case during which the plaintiffs used restrooms without incident and had full recognition of their gender identity by the school administration and staff.

Reviewing the various criteria that the Supreme Court has discussed in cases about the appropriate level of equal protection review, Hornak concluded that the “intermediate standard” used in sex discrimination cases should apply in this case. “The record before the Court reflects that transgender people as a class have historically been subject to discrimination or differentiation; that they have a defining characteristic that frequently bears no relation to an ability to perform or contribute to society; that as a class they exhibit immutable or distinguishing characteristics that define them as a discrete group; and that as a class, they are a minority with relatively little political power.”  Focusing on this particular case, he wrote, “As to these Plaintiffs, their transgender characteristics are inherent in who they are as people, which is not factually contested by the District.  As to these Plaintiffs, and more generally as to transgender individuals as a class, that characteristic bears no relationship to their ability to contribute to our society.  More precisely, the record reveals that the Plaintiffs are in all respects productive, engaged, contributing members of the student body at the High School.  Thus, all of the indicia for the application of the heightened intermediate scrutiny standard are present there.”

That means that the defendants have the burden to justify their discriminatory policy, and the judge concluded they were likely to fall short in that. “Specifically, what is missing from the record here are facts that demonstrate the ‘exceedingly persuasive justification” for the enforcement of Resolution 2 as to restroom use by these Plaintiffs that is substantially related to an important governmental interest,” wrote Hornak.  The Resolution was not shown to be “necessary to quell any actual or incipient threat, disturbance or other disruption of school activity by the Plaintiffs,” he found, and there was no evidence that it was necessary to “address any such threat or disturbance by anyone else in the High School restrooms.” Furthermore, it did not address any privacy concern “that is not already well addressed by the physical layout of the bathrooms,” he found, continuing, “it would appear to the Court that anyone using the toilets or  urinals at the High School is afforded actual physical privacy from others viewing their external sex organs and excretory functions.  Conversely, others in the restrooms are shielded from such views.”  And the school’s existing code of conduct as well as state laws already exist to deal with any “unlawful malicious ‘peeping Tom’ activity by anyone pretending to be transgender,” he wrote, dismissing a concern raised by the defendants as a hypothetical justification for the policy.

The school board argued that some parents had threatened to withdraw their students from school if the Board did not keep transgender students out of the restrooms, but the court was not willing to countenance this as a justification for the policy. “If adopting and implementing a school policy or practice based on those individual determinations or preferences of parents – no matter how sincerely held – runs counter to the legal obligations of the District,” he wrote, “then the District’s and the Board’s legal obligations must prevail. Those obligations to the law take precedence over responding to constituent desires,” because the 14th Amendment’s Equal Protection Clause “is neither applied nor construed by popular vote.”

Furthermore, rejecting the Board’s argument that enjoining the Resolution while the case proceeds was an improper change of the “status quo,” the court found that for several years the plaintiffs freely using the restrooms consistent with their gender identity was the “status quo,” even if school officials claimed they were unaware of it. This was a “persistently-applied custom or practice” which had the same weight as a written policy and, of course, until the Resolution was adopted, the District had no written policy on this issue.  The court rejected the defendants’ argument that the availability of single-user restrooms “sprinkled around the High School” provided a sufficient “safety valve” for the plaintiffs, making an injunction unnecessary.  “Given that settled precedent provides that impermissible distinctions by official edict cause tangible Constitutional harm,” he wrote, “the law does not impose on the Plaintiffs the obligation to use single-user facilities in order to ‘solve the problem.’” He found that this was “no answer under the Equal Protection Clause that those impermissibly singled out for different treatment can, and therefore must, themselves ‘solve the problem’ by further separating themselves from their peers.”

He easily concluded that the differential treatment inflicted irreparable harm on the plaintiffs, and that ordering the District to allow them to use gender-appropriate restrooms would “cause relatively little ‘harm’ in the preliminary injunction sense – if any harm at all – to the District and the High School community.” It was crucial to this conclusion, of course, that the plaintiffs had been using the restrooms without incident for years until some parents made an issue out of it.  He also found that issuing the injunction would serve the public interest by vindicating the constitutional rights of the plaintiffs.

In case a second-guessing court of appeals should disagree with his determination that heightened scrutiny applied to this case, Judge Hornak also stated that the Resolution probably would not even survive rationality review, since he found that it was not necessary to achieve any of the goals suggested by the defendants.

Judge Hornak’s decision not to grant the injunction based on Title IX seems prudent in light of the unsettled situation he describes. The 4th Circuit Court of Appeals ruling in the Gavin Grimm case depended on deference to the Obama Administration’s interpretation of the Education Department’s bathroom regulation.  With that interpretation being “withdrawn” by the Trump Administration in a letter that did not substitute any new interpretation in its place, there is nothing to defer to and the construction of the statute and regulation is now pending before the Supreme Court, which voted 5-3 last summer to stay the district court’s preliminary injunction in the Grimm case.  Hornak noted that the criteria for the Supreme Court issuing a stay in a case like that include the Court’s judgment that the case presents a serious possibility of being reversed by the Court on the merits.  What he omits to mention is that the stay was issued only because Justice Stephen Breyer, who would in other circumstances have likely voted against granting the stay, released an explanation that he was voting for the stay as a “courtesy” to the four more conservative justices, undoubtedly because they had the four votes to grant a petition to review the 4th Circuit’s ruling.  Under the Supreme Court’s procedures, five votes are needed to take an action, such as issuing a stay or reversing a lower court ruling, but only four votes are needed to grant a petition to review a lower court decision.  It was clear in that case that the Gloucester County School Board would be filing a petition for review and that there were four justices ready to grant it.  Judge Hornak interpreted that, as Justice Breyer clearly did, as a signal that the interpretation of Title IX in this context is up for grabs.  If Neil Gorsuch is confirmed by the Senate in time to participate in deciding that case, the outcome will probably turn on Justice Anthony Kennedy, who voted for the stay.  (Justices Ginsburg, Sotomayor and Kagan announced that they would have denied the stay.)

Judge Hornak’s ruling confirms that for the overwhelming majority of educational institutions subject to Title IX because they receive federal funds, it does not really matter whether Title IX requires them to afford gender-consistent restroom access to transgender students (or staff, for that matter), because as government-operated institutions they are bound to respect the Equal Protection rights of their students and employees. However, for non-governmental educational institutions that receive federal funds, either through work-study programs, loan assistance, or research grants in the case of the major private universities, their federal obligations towards transgender students depend on Title IX and whatever state or local laws might apply to them as places of public accommodation, which vary from state to state, only a minority of states and localities protecting transgender people from discrimination.

In light of the lack of 3rd Circuit appellate precedent on the constitutional issue, it would not be surprising if the defendants seek a stay of this injunction from the court of appeals, and there is no predicting how that court would rule, although the likelihood that the Supreme Court will issue a ruling of some sort in the Grimm case by the end of June might lead them to err on the side of caution to give the school district temporary relief.

Lambda Legal’s attorneys representing the plaintiffs are Omar Gonzalez-Pagan, Christopher Clark and Kara Ingelhart, who are joined by local counsel in Pennsylvania, Tracie Palmer and David C. Williams of Kline & Specter, P.C..

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Arkansas Supreme Court Rules Fayetteville Anti-Discrimination Measure Violates State Law

Fayetteville has been a hotbed of LGBT rights advocacy, but on February 23 the Arkansas Supreme Court, reversing a ruling by Washington County Circuit Court Judge Doug Martin, found that the city and its voters had violated state law by adding “sexual orientation” and “gender identity” to their antidiscrimination ordinance. Protect Fayetteville & State of Arkansas v. City of Fayetteville, 2017 Ark. 49.  Justice Josephine Linker Hart wrote the opinion for the unanimous court.

Responding to earlier attempts to enact LGBT rights protections in Fayetteville, the Arkansas legislature passed Act 137 in 2015. Titled the Intrastate Commerce Improvement Act, Ark. Code Ann. Sec. 14-1-401 to 403, the measure was intended, according to its purpose section, “to improve intrastate commerce by ensuring that businesses, organizations, and employers doing business in the state are subject to uniform nondiscrimination laws and obligations, regardless of the counties, municipalities, or other political subdivisions in which the businesses, organizations, and employers are located or engage in business or commercial activities.”  To that end, the measure bars local governments from adopting or enforcing “an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.”  The Act recognizes one exception: local governments are left free to legislate on their own employment policies.  Thus, a city can adopt an ordinance banning discrimination in its own workforce on grounds “not contained in state law.”

Arkansas, in common with the entire southeastern United States, does not forbid sexual orientation or gender identity discrimination in its state antidiscrimination statute. The clear intent of the legislators was to preempt local governments from adding those two characteristics to their local antidiscrimination ordinances. Or at least that’s what the court held in this decision.

Local LGBT rights advocates and city officials took a different view, however, seizing upon the literal meaning of “not contained in state law” and finding that Arkansas laws existed mentioning sexual orientation or gender identity. For example, an anti-bullying law protects public school students and employees from bullying because of gender identity or sexual orientation, among a list of 13 characteristics.  There is also a provision in the state’s domestic violence law requiring domestic violence shelters to adopt nondiscrimination policies that include “sexual preference.”  And the state’s vital statistics act provides a mechanism for an individual to get a new birth certificate after sex reassignment surgery.  Taken together, the advocates argued that “sexual orientation” and “gender identity” are classifications that exist in Arkansas law, their inclusion in the city’s anti-discrimination ordinance would not be prohibited by Act 137.

The city council approved a new ordinance, Ordinance 5781, to add those categories to the local law, subject to an affirmative referendum vote. Opponents of the measure (plaintiffs in this case) tried to get the local court to stall the referendum while they contested the legality of the proposed ordinance, but the local court refused and the public voted to approve the measure.  Ultimately, Judge Martin agreed with the argument that “sexual orientation” and “gender identity” could be added to the local ordinance, as they were categories that were mentioned in state law.

The Supreme Court’s reversal was premised on legislative intent. “In this case,” wrote Justice Hart, “the General Assembly expressly stated the intent.”  The operative language could not be construed in isolation from the prefatory provision explaining why the legislature had adopted Act 137.  They wanted nondiscrimination laws to be uniform through the state, and did not want localities to outlaw discrimination based on classifications that were not included in the state’s own antidiscrimination law.  “The express purpose of Act 137 is to subject entities to ‘uniform nondiscrimination laws and obligations,’” wrote Justice Hart.  She also noted that the Fayetteville ordinance, in a provision explaining the city council’s purpose, stated that “its purpose is to ‘extend’ discrimination to include ‘sexual orientation and gender identity.”  Explained Justice Hart, “In essence, Ordinance 5781 is a municipal decision to expand the provisions of the Arkansas Civil Rights Act to include persons of a particular sexual orientation and gender identity.”  She’s incorrect, of course, as to this statement, since by its plain meaning the ordinance would protect anybody from discrimination because of their sexual orientation or gender identity, including “straight” and “cisgender” people.

“This violates the plain wording of Act 137 by extending discrimination laws in the City of Fayetteville to include two classifications not previously included under state law,” wrote Hart. “This necessarily creates a nonuniform nondiscrimination law and obligation in the City of Fayetteville that does not exist under state law. It is clear from the statutory language and the Ordinance’s language that there is a direct inconsistency between state and municipal law and that the Ordinance is an obstacle to the objectives and purposes set forth in the General Assembly’s Act and therefore it cannot stand.”  She noted that the statutes relied upon by the city and Judge Martin to argue that these categories were covered in state law were not antidiscrimination statutes, and thus could not be relied upon as a basis for adding them to the local antidiscrimination ordinance.

As a co-plaintiff in the case the State had intervened to protect the constitutionality of Act 137, which had been questioned by the city, but that issue had not been addressed by the circuit court, and the Supreme Court held it thus had not been preserved for appeal. The case was reversed and remanded.  On remand, the city could pursue the question of the constitutionality of Act 137.  It is strikingly similar, despite its euphemistic wording, to Colorado Amendment 2, which was declared unconstitutional under the 14th Amendment by the Supreme Court in Romer v. Evans (1996).  Amendment 2 prohibited the state or any political subdivision from prohibiting discrimination because of sexual orientation.  The Supreme Court, focusing on the legislative history of the measure, condemned it as intended to make gay people unequal to everybody else in the state out of moral disapproval.  The state had advanced a desire for uniformity of state laws as one of many justifications for Amendment 2, but Justice Anthony Kennedy, writing for the Court, did not specifically reject any of the state’s justifications, merely stating that none of them were sufficient to justify the law, which did not even clear rational basis scrutiny.

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Trump Administration Withdraws Title IX Guidance in Contradictory “Dear Colleague” Letter

 

The Trump Administration, keeping a promise made by Donald Trump during his campaign to leave the issue of restroom and locker room access by transgender students up to state and local officials, issued a letter to all the nation’s school districts on February 22, withdrawing a letter that the Obama Administration Education Department submitted in the Gavin Grimm transgender rights case on January 7, 2015, and a “Dear Colleague” letter sent jointly by the Education and Justice Departments to the nation’s school districts on May 13, 2016.

 

The Obama Administration letters had communicated an interpretation of Title IX of the Education Amendments of 1972, a statute banning sex discrimination by educational institutions that receive federal money, as well as a DOE regulation issued under Title IX, 34 C.F.R. Section 106.33, governing sex-segregated facilities in educational institutions, to require those institutions to allow transgender students and staff to use facilities consistent with their gender identity. The regulation says that educational facilities may have sex-segregated facilities, so long as they are “equal.”

 

The February 22 letter states that the Departments “have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Department thus will not rely on the views expressed within them.”  It also states that the departments “believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy,” embodying Trump’s articulated campaign position on this issue.

 

At the same time, however, the February 22 letter stated: “All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment,” and insisted that the withdrawal of the earlier guidance documents “does not leave students without protections from discrimination, bullying, or harassment” and that the Education Department’s Office of Civil Rights “will continue its duty under law to hear all claims of discrimination and will explore every opportunity to protect all students and to encourage civility in our classrooms.” It asserts that the two departments “are committed to the application of Title IX and other federal laws to ensure such protection.”

 

However, Press Secretary Sean Spicer said on February 22 that the administration was analyzing its overall position on Title IX, which could result in parting ways from the Obama Administration’s view that Title IX prohibits gender identity discrimination in schools.

 

Thus, an internal contradiction appears. The letter at least implies that sexual orientation and gender identity discrimination do violate Title IX, but that the question whether transgender students should be allowed access to sex-segregated facilities consistent with their gender identity needs further study and perhaps needs to be addressed in a new regulation accompanied by detailed analysis that is put through the Administrative Procedure Act process of publication of proposed rules, public comment and hearing, and final publication in the Federal Register, with Congress having a period of several months during which it can intervene to block a new regulation.

 

The Solicitor General’s office, which represents the government in Supreme Court cases, also informed the Court on February 22 that the Obama Administration guidance documents had been withdrawn, that the views expressed in them would no longer be relied upon by those executive branch agencies, and that, instead, the administration would “consider further and more completely the legal issues involved.”

 

This development comes just six weeks before the Supreme Court argument scheduled for March 28 in Gloucester County School District v. G.G. (the Gavin Grimm case), and just before the due date for the Solicitor General to file an amicus brief presenting the government’s position on the issues before the Court.

 

The Court might react to this development in a variety of ways. Since the government is not a party in the case, the Court might just ignore the letter and go ahead with the argument.  Or it might consider that this development renders moot one or both of the questions on which it granted review, which could lead to a reshaping of the case to focus solely on the appropriate interpretation of Title IX and the facilities regulation.  It might even decide that the entire case should be sent back to the 4th Circuit for reconsideration in light of these developments.

 

The new Dear Colleague letter, sent over the signatures of Acting Assistant Secretary for Civil Rights Sandra Battle (Education Department) and Acting Assistant Attorney General for Civil Rights T.E. Wheeler, II (Justice Department), shows the signs of compromise reflecting the reported battle between Betsy DeVos, the recently-confirmed Secretary of Education, and Jeff Sessions, the recently-confirmed Attorney General. Several media sources reported that DeVos did not want to withdraw the earlier Guidance, but that Sessions was determined to do so.

 

In light of his record on LGBT issues as a Senator and former Attorney General of Alabama, Sessions is reportedly bent on reversing the numerous Obama Administration regulations and policy statements extending protection to LGBT people under existing laws. It was probably a big disappointment to him that the President decided not to rescind Obama’s Executive Order imposing on federal contractors an obligation not to discriminate because of sexual orientation or gender identity, and we may not have heard the last on that issue.

 

DeVos, by contrast, is reportedly pro-LGBT, despite the political views of her family, who are major donors to anti-LGBT organizations. According to press accounts, for example, in Michigan she intervened on behalf of a gay Republican Party official whose position was endangered when he married his partner.

 

Several newspapers and websites have reported that DeVos and Session brought their dispute to the President, who resolved it in favor of Sessions, leaving it to them to work out the details. Trump was undoubtedly responding to the charge by many Republicans that the Obama Administration had “overreached” in its executive orders and less formal policy statements, going beyond the bounds of existing legislation to make “new law” in areas where Congress had refused to act and overriding state and local officials on a sensitive issue.  In this case, Republicans in both houses had bottled up the Equality Act, a bill that would have added sexual orientation and gender identity as explicitly forbidden grounds for discrimination in a variety of federal statutes, including Title IX.

 

While withdrawing the Obama Guidance documents, the February 22 the letter does not state a firm position on how Title IX should be interpreted, either generally in terms of gender identity discrimination or specifically in terms of access to sex-segregated facilities, such as restrooms and locker rooms. It criticizes the withdrawn documents as failing to “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX,” and points out that they did not “undergo any formal public process,” a reference to the Administrative Procedure Act steps that are necessary to issue formal regulations that have the force of law.

 

While the withdrawn guidance documents did not have the force of law, they communicated to schools that the Education Department believed that Title IX bars gender identity discrimination and requires access to facilities consistent with a person’s gender identity, which meant that the Education Department or the Justice Department might initiate litigation or seek suspension of federal funding against districts which failed to comply. In the end, it would be up to courts to decide whether to follow this interpretation.  Furthermore, federal courts have found an “implied right of action” by individuals to bring suit to enforce their rights under Title IX, and that is not changed by withdrawal of the guidance documents.

 

The 4th Circuit’s decision of May 2016, up for review by the Supreme Court, came in a lawsuit initiated by an individual high school student, Gavin Grimm, a transgender boy who was barred from using the boys’ restrooms at his high school by a resolution of the Gloucester County, Virginia, School Board after it received complaints from members of the community. District Judge Robert Doumar had dismissed Grimm’s Title IX complaint, even though the Obama Administration sent its January 7, 2015, letter, informing the court that the Education Department believed that Title IX required the school district to let Grimm use the boys’ restrooms.  The 4th Circuit ruled that Judge Doumar should have deferred to the Education Department’s interpretation, as the regulation governing sex-segregated facilities was ambiguous on the question and the Department’s interpretation, which relied on federal appeals court and administrative agency decisions under other sex discrimination statutes finding that gender identity discrimination was a form of sex discrimination, was “reasonable.”  The School District petitioned the Supreme Court to review this ruling.

 

The Supreme Court agreed to consider two questions: (1) Whether deference to an informal letter from the Education Department was appropriate, and (2) whether the Department’s interpretation of Title IX and the regulation was correct. With the letter having been withdrawn, the question of deferring to it may be considered a moot point, but some commentators on administrative law had been hoping the Court would use this case as a vehicle to abandon its past ruling that courts should give broad deference to agency interpretations of ambiguous regulations, and the Court could decide that this issue has not really been rendered moot since it is a recurring one. Indeed, the February 22 letter implicitly raises the new question of whether the courts should defer to it in place of the withdrawn Guidance.

 

The Supreme Court’s agreement to consider whether the Education Department’s interpretation was correct might also be considered moot, since the Education Department has abandoned that interpretation, but certainly the underlying question of how Title IX and the regulation should be interpreted is very much alive, as several courts around the country are considering the question in cases filed by individual transgender students, states, and the Obama Administration (in its challenge to North Carolina’s H.B. 2, which is based on Title IX, Title VII of the Civil Rights Act, and the Equal Protection Clause of the Constitution).

 

Two groups of states filed suit in federal courts challenging the Dear Colleague letter of May 13, 2016. In one of those lawsuits, with Texas as the lead plaintiff, Judge Reed O’Connor of the Northern District of Texas ruled that the plaintiffs were likely to succeed in their challenge, and issued a nationwide preliminary injunction last August forbidding the government from enforcing this interpretation of Title IX in any new investigation or case.  The DOE/DOJ February 22 letter points out that this nationwide injunction is still in effect, so the departments were not able to investigate new charges or initiate new lawsuits in any event.  What it doesn’t mention is that the Obama Administration filed an appeal to the 5th Circuit, challenging the nationwide scope of the injunction, but the Trump Administration recently withdrew that appeal, getting the 5th Circuit to cancel a scheduled oral argument.  Of course, these lawsuits specifically challenging the Obama Administrative Guidance documents are now moot with those documents having been withdrawn by the Trump Administration, since the plaintiffs in those cases sought only prospective relief which is now unnecessary from their point of view.  Presumably a motion to dismiss as moot would be granted by Judge O’Connor, dissolving the preliminary injunction.  O’Connor’s order never had any effect on the ability of non-governmental plaintiffs, such as Gavin Grimm, to file suit under Title IX.

 

In North Carolina, the Obama Administration, former governor Pat McCrory, Republican state legislative leaders, a group representing parents and students opposed to transgender restroom access, and transgender people represented by public interest lawyers had all filed lawsuits challenging or defending H.B.2. The Trump Administration’s February 22 actions may signal that at least the federal government is likely either to abandon or cut down on the scope of its lawsuit challenging H.B.2.  Since North Carolina is in the 4th Circuit, all of these cases were likely to be affected by a reconsideration by the 4th Circuit in light of these new developments.  Around the country, several pending lawsuits have been put “on hold” by federal district judges as well, while awaiting Supreme Court action on the Gavin Grimm case.  If the Supreme Court were to reject the argument that “sex discrimination” in a statute can be broadly construed to encompass gender identity, these cases, arising under either Title IX or Title VII, may be dismissed.

 

Since the confirmation hearing for 10th Circuit Judge Neil Gorsuch, nominated by Trump for the Supreme Court vacancy, is scheduled to take place on March 20, and Democratic opposition may stretch out the confirmation process, it seems likely that there will be only eight members on the Supreme Court to consider the Grimm case. In that event, it was widely predicted that the result would be either a tie affirming the 4th Circuit without opinion and avoiding a national precedent, or a 5-3 vote with an opinion most likely by Justice Anthony Kennedy, joining with the more liberal justices to adopt the more expansive reading of Title IX.  However, this will be the first time the Supreme Court has tackled directly a gender identity issue under sex discrimination laws, so predicting how any member of the Court may vote is completely speculative.

 

 

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Washington Supreme Court Unanimously Rules Against Florist Who Refused Flowers for Same-Sex Wedding Ceremony

 

Continuing an unbroken string of appellate rulings finding that small businesses cannot refuse to supply goods or services for same-sex marriages in jurisdictions that ban sexual orientation discrimination, the nine members of the Supreme Court of the State of Washington unanimously ruled on February 16 that Barronelle Stutzman, proprietor of Arlene’s Flowers, Inc., and her business, violated the Washington Law Against Discrimination (WLAD) and the state’s Consumer Protection Act, and had no constitutional right to do so based on her religious beliefs. State of Washington v. Arlene’s Flowers, 2017 Wash. LEXIS 216, 2017 WL 629181.

This ruling follows a string of losses by businesses that sought to rely on religious objections to refuse wedding-related services to same-sex couples, involving a photographer in New Mexico (Elane Photography v. Willock, 309 P.3d 53 (N.M. 2013)), a baker in Colorado (Mullins v. Masterpiece Cakeshop, 370 P.3d 272 (Col. App. 2015)), and a farm that provided a venue for weddings in upstate New York (Gifford v. McCarthy, 23 N.Y.S.3d 422 (N.Y. App. Div. 2016)).  So far, no final court decision has ruled in favor of a for-profit business claiming a right to discriminate against same-sex couples in connection with their weddings, either under the federal and/or state constitutions or under a state’s Religious Freedom statute.  Washington State does not have such a statute, so Ms. Stutzman’s case came down to two questions: whether her refusal of services violated the public accommodations and consumer protection statutes, and whether she was privileged to withhold her services by the 1st Amendment of the U.S. Constitution or an equivalent provision of the Washington Constitution.

Robert Ingersoll and Curt Freed had been living together in what the opinion by Justice Sheryl Gordon McCloud calls “a committed, romantic relationship” for several years. Over those years they had been regular customers of Arlene’s Flowers, spending by their estimate as much as $1,000 total at the store.  After the Washington legislature passed a bill allowing same-sex marriages in 2012, Freed proposed to Ingersoll and they planned to marry on their ninth anniversary in September 2013 with a large reception at a major event venue, “complete with a dinner or reception, a photographer, a caterer, a wedding cake, and flowers.”  Naturally, Ingersoll went to Arlene’s Flowers to make arrangements, anticipating no problems because the owner, Ms. Stutzman, knew him and Curt, knew they were gay, and had dealt with them many times.  They considered Arlene’s Flowers to be “their florist.”

So it was a big surprise when Stutzman told Ingersoll that she could not do the flowers for their wedding because of “her relationship to Jesus Christ.” Indeed, the conversation did not even get as far as discussing what kind of flowers or floral arrangements the men wanted, or whether Stutzman was being asked to deliver and set up floral arrangements at an event venue or just to prepare them to be picked up at her store.

The story quickly got media play after Ingersoll posted about it on his facebook.com page, inspiring the state’s Attorney General Bob Ferguson to initiate litigation against Stutzman and her business, and Ingersoll and Freed filed their own complaint. The cases were combined in Benton County Superior Court, where the trial judge granted summary judgment against Stutzman.

The analysis by the court will be familiar to anybody who has been following this issue as it has unfolded in parallel with the advance of marriage equality. Courts have generally rejected the argument made by Stutzman that refusing to do business with same-sex couples in connection with their marriages is not sexual orientation discrimination because the refusal has to do with “conduct” (a wedding) rather than “status” (sexual orientation).  The Washington court decisively rejected this argument, advanced by lawyers from Alliance Defending Freedom, the organization that has been involved in the other cases mentioned above and which is petitioning the Supreme Court to review the Colorado baker case.  So the major focus of the case is not on whether she violated the statutes, that being easily decided, but rather on whether she was privileged to do so because of constitutional protection for her freedom of religion, speech or association.

Most civil rights laws include provisions exempting religious institutions and their clergy from complying to the extent that their doctrines would be violated, but the exemptions usually do not extend to private, for-profit businesses. The Supreme Court of the United States ruled in the Hobby Lobby case, consistent with prior decisions going back to the 1990s, that the 1st Amendment does not require the government to exempt businesses from complying with statutes of general application, such as civil rights laws or, in that case, the Affordable Care Act.  However, under the federal Religious Freedom Restoration Act (RFRA), a statute enacted in response to the Supreme Court’s religious freedom ruling, the Supreme Court found that a for-profit business may be entitled to claim an exemption from complying with a federal statute or regulation because of the religious views of the owners of the business.  The test in such a case would be whether the challenged statute imposes a substantial burden on the free exercise rights of the business, and then whether the government has both a compelling interest for the statute and has adopted the least intrusive means of achieving that interest.

Washington State does not have a RFRA, so Stutzman was limited to making constitutional claims. The court rejected her argument that her floral arrangements were the kind of artistic creations entitled to free speech protection, or that requiring her to design and supply floral arrangements for a wedding ceremony of which she disapproved would burden her freedom of association.  The court conceded that requiring her to devise floral decorations for such an event would burden her free exercise of religion, but found that the state’s compelling interest in protecting all its residents from discrimination in places of public accommodation clearly outweighed the incidental burden on religion.

“As applied in this case,” wrote Justice Gordon McCloud, “the WLAD does not compel speech or association. And assuming that it substantially burdens Stutzman’s religious free exercise, the WLAD does not violate her right to religious exercise under either the First Amendment or article I, section 11 [of the Washington constitution], because it is a neutral, generally applicable law that serves our state government’s compelling interest in eradicating discrimination in public accommodations.”

When the court refers to a “neutral law,” it means a law that does not expressly target religion and was not enacted for the specific purpose of imposing a burden on religion. A law that, in general, forbids all public accommodations from discrimination because of sexual orientation or gender identity, is such a “neutral law.”  Of course, one notes, religiously-inspired advocates such as Alliance Defending Freedom would argue that it is not neutral, and that legislators adopt those laws knowing that they will burden religious believers, because testimony to that effect is usually presented in legislative hearings and the argument is made during legislative debate.  But the courts generally will not attribute a discriminatory intent to the legislature as a whole on the basis of such testimony and arguments.

Stutzman had argued that her refusal to “do” the flowers for the wedding was not a serious problem for the two men because she suppled Ingersoll with the names of other florists who would readily do it, and in fact after this case got publicity several florists contacted Ingersoll and Freed and volunteered to provide flowers for their wedding. In the event, the men were so affected by what had happened to them that they dropped their plans for a big wedding ceremony and instead had a small private event with minimal fuss. The court said that being able to get flowers was not really the issue in this case.  Rather, it was about the violation of civil rights stemming from a denial of services because the customers were a gay couple.  Indeed, in her deposition Stutzman conceded that she would happily supply flowers for a Muslim wedding or a wedding for atheists, making clear that her objections here focused on the fact that it was for a “gay wedding.”  It was not relevant that she claimed she was not homophobic and happily sold flowers to Ingersoll and Freed when it was not for a wedding.  That was not the point of the case.

The timing of this decision is particularly interesting, because the Supreme Court was scheduled to discuss whether to grant review of the Colorado baker case on February 17, having listed it at two of the Court’s prior conferences and having sent for and received the full record from the state courts just recently. If the Court made a decision to review that case at the February 17 conference, it would probably be announced on Tuesday, February 21.

The ACLU of Washington has been involved in representing Ingersoll and Freed in this case. A spokesperson for Alliance Defending Freedom, representing Stutzman, announced that they would petition the Supreme Court to review this case as well as the Colorado baker case.

 

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