New York Law School

Art Leonard Observations

Federal Court Rejects Gloucester School District’s Motion to Dismiss Gavin Grimm’s Case

Opening up a new chapter in the continuing battle of Gavin Grimm to vindicate his rights as a transgender man, U.S. District Judge Arenda L. Wright Allen issued an Order on May 22 denying the Gloucester County (Virginia) School Board’s motion to dismiss the latest version of the case Grimm filed back in July 2015, prior to his sophomore year at Gloucester High School.

During the summer of 2014, Grimm’s transition had progressed to the point where he and his mother met with high school officials to tell them that he was a transgender boy and “would be attending school as a boy,” wrote Judge Allen.  They agreed to treat him as a boy, including allowing him to use the boys’ restrooms.  He did so for about seven weeks without any incident, until complaints by some parents led the school board to adopt a formal policy prohibiting Grimm from using the boys’ restrooms.  The school established some single-user restrooms that were theoretically open to all students, but Grimm was the only one who used them because they were not conveniently located to classrooms.

“Because using the single-user restrooms underscored his exclusion and left him physically isolated,” wrote Judge Allen, “Mr. Grimm refrained from using any restroom at school.  He developed a painful urinary tract infection and had difficulty concentrating in class because of his physical discomfort.”  During the summer after his sophomore year, he filed his lawsuit, alleging violations of Title IX – a federal statute that forbids schools from discriminating because of sex – and the Equal Protection Clause of the Constitution.

Meanwhile, Grimm had begun hormone therapy in December 2014, “which altered his bone and muscle structure, deepened his voice, and caused him to grow facial hair.”  In June 2015, he received a new Virginia identification car from the Motor Vehicles Department designated him as male.  During the summer of 2016, he had chest-reconstruction surgery, a necessary step to get the circuit court to issue an order changing his sex under Virginia law and directing the Health Department to issue him a birth certificate listing him as male.  He received the new birth certificate in October 2016.  Thus, as of that date, Grimm was male as a matter of Virginia law.

Yet, despite all these physical and legal changes, the School District clung to its contention that his “biological gender” was female and that he could not be allowed to use boys’ restrooms at the high school.  The school maintained this prohibition through the end of the school year, when Grimm graduated.

Meanwhile, his lawsuit was not standing still.  Senior U.S. District Judge Robert G. Doumar dismissed his Title IX claim in September 2015, denying his motion for a preliminary injunction, and holding his Equal Protection Claim in reserve while he appealed to the U.S. Court of Appeals for the 4th Circuit, based in Richmond.  In the spring of 2016, the 4th Circuit sent the case back to the district court, issuing an opinion holding that the court should have deferred to the position advanced by the U.S. Departments of Education and Justice, which opined that discrimination because of gender identity is sex discrimination and schools are required under Title IX to treat student consistent with their gender identity.

Judge Doumar then issued a preliminary injunction during the summer of 2016 ordering the School District to let Grimm use the boys’ restrooms, but the School District obtained a stay of that order from the Supreme Court, which subsequently granted the School’s petition to review the 4th Circuit’s “deference” ruling.  The Supreme Court scheduled the case for argument, but then the incoming Trump Administration “withdrew” the position that the Obama Administration had taken, knocking the props out from under the 4th Circuit “deference” ruling, and persuaded the Supreme Court to cancel the argument and send the case back to the 4th Circuit, which in turn sent it back to the district court.  And, by the time it got there, Grimm had graduated from Gloucester County High School.

The School District attempted to get rid of the case at that point, arguing that it was moot.  Grimm begged to differ, arguing that his Title IX and Equal Protection rights had been continuously violated by the School District from the time it adopted its exclusionary restroom policy through the time of his graduation.  In a newly amended complaint, Grimm sought a declaratory judgement as to the violation of his rights under both Title IX and the constitution and an end to the school’s exclusionary policy.

The School District moved to dismiss this new complaint, leading to the May 22 ruling by Judge Allen, to whom the case had been reassigned in the interim. Judge Doumar, who was born in 1930, was appointed to the court by President Reagan and is still serving as a part-time senior district judge.  Judge Allen was appointed to the court by President Obama in 2011.

Judge Allen’s opinion relies heavily on important judicial developments that have occurred since Judge Doumar’s initial dismissal of the Title IX claim back in 2015. The 4th Circuit has yet to issue a ruling on the merits of the question whether federal laws that forbid discrimination because of sex can be construed to apply to gender identity discrimination claims.  Since the Supreme Court has also avoided addressing that issue, it was open to Judge Allen to follow as “persuasive precedents” the lengthening list of rulings from other federal courts, including five different circuit courts of appeals and many district courts, holding that sex discrimination laws should be broadly construed to cover gender identity claims.

These decisions draw their authority from two important Supreme Court decision: Price Waterhouse v. Hopkins (1989) and Oncale v. Sundowner Offshore Services (1998). In Price Waterhouse, the Supreme Court accepted as evidence of intentional sex discrimination an accounting firm’s denial of a partnership to a woman who was deemed inadequately feminine by several partners who voted against her.  In Oncale, the Court ruled that Title VII, the federal law banning employment discrimination because of sex, could apply to a claim of hostile environment sexual harassment by a man who worked in an all-male workplace, commenting that even if this scenario was not contemplated by Congress when it passed Title VII in 1964, that statute could be applied to “comparable” situations.

Since the turn of the century, federal appeals courts have used those two cases to find that transgender people can seek relief from discrimination under the Gender-Motivated Violence Act, the Equal Credit Opportunity Act, Title VII of the Civil Rights Act, Title IX of the Education Amendments Act, and the Equal Protection Clause. In addition, district courts have found such protection under the Fair Housing Act.  A consensus based on the gender stereotype theory has emerged, even in circuits that have generally been hostile to sexual minority discrimination claims.  And, most significantly, the 7th Circuit ruled last year in the case of Ashton Whitaker, a transgender boy, that Title IX and the Equal Protection Clause required a school district to allow him to use boys’ restroom and locker room facilities.  There is no material distinction between the Whitaker and Grimm cases.

Furthermore, and closer to home, on March 12 of this year U.S. District Judge George L. Russell, III, ruled in a case from Maryland (also in the 4th Circuit) that a school district had violated Title IX and the Equal Protection Clause by refusing to allow a transgender boy to use the boys’ locker room at his high school.  Judge Allen found Judge Russell’s analysis persuasive, as she did the recent cases from other courts.

Turning to Grimm’s constitutional claim, Judge Allen followed the precedents from other courts that have determined that discrimination against transgender people is subject to “heightened scrutiny” judicial review, similar to that used for sex discrimination cases. Under this standard, the challenged policy is presumed to be unconstitutional and the government bears the burden of showing that it substantially advances an important governmental interest.

The Gloucester School District argued that its interest in protecting the privacy of other students was sufficient to vindicate its policy, but Judge Allen disagreed, finding that “the policy at issue was not substantially related to protecting other students’ privacy rights. There were many other ways to protect privacy interests in a non-discriminatory and more effective manner than barring Mr. Grimm from using the boys’ restrooms.”  The school had created three single-user restrooms open to all students, so any student who sought to avoid using a common restroom with Mr. Grimm had only to use one of those.  She also noted that the School Board reacted to the controversy by taking steps “to give all students the option for even greater privacy by installing partitions between urinals and privacy strips for stall doors.”  Thus, any validity to privacy concerns raised when the controversy first arose had been substantially alleviated as a result of these renovations.

Having denied the School District’s motion to dismiss the amended complaint, Judge Allen directed the attorneys to contact the Courtroom Deputy for United States Magistrate Judges within thirty days to schedule a settlement conference. If the parties can’t work out a settlement with a magistrate judge, the district court will issue a final order dictating what the school district must do to be in compliance with Title IX and the Constitution.  And, because Grimm is the prevailing party in this long-running and hotly litigated civil rights case, one suspects that sometime down the road there will be a substantial attorneys’ fee award.

Grimm’s lawyer, Joshua Block of the ACLU LGBTQ Rights Project, indicated that their goal in the case at this point is the declaratory judgment and nominal damages for Grimm, and of course an end to the School Board’s discriminatory policy. Grimm now lives in Berkeley, California, and intends to begin college this fall in the Bay Area, according to the New York Times’ report on the case.

Of course, the School District may seek to appeal Judge Allen’s Order to the 4th Circuit.  Attorney General Jeff Sessions issued a Memorandum last fall formally rejecting the Obama Administration’s position that federal sex discrimination laws forbid gender identity discrimination, so the School District could count on the Justice Department to support an appeal.  And Trump’s rapid pace in filling federal circuit court vacancies may slow or eventually halt the continuing trend of transgender-positive rulings from the other circuit courts, but that is not likely to be the case in the 4th Circuit for some time.  At present that court has an overwhelming majority of Democratic appointees (including six by Obama and four by Clinton on the 15 member court) with only one vacancy for Trump to fill.  The 4th Circuit was out front of the Supreme Court in 2014 in striking down state bans on same-sex marriage, and its 2016 opinion in Gavin Grimm’s case was notably transgender-friendly, so it is unlikely that an appeal by the School District will be successful in the 4th Circuit.  The Supreme Court, of course, may be a different matter.  Time will tell.

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Federal Court Orders Social Security Administration to Pay Attorney’s Fees to Gay Widower Who Prevailed on Benefits Claim

On July 4, 1990, John Roberts and Bernard Wilkerson, a same-sex couple living in Pennsylvania, “expressed to one another their intent to establish a common law marriage.” Although at the time Pennsylvania did not recognize same-sex marriages, either under its common law or its statutory law, the men considered themselves married and lived together as a couple until Wilkerson died in 2015.  Moving quickly after a federal court struck down Pennsylvania’s ban on same-sex marriage in Whitewood v. Wolf, 992 F. Supp. 2nd 410 (M.D. Pa. 2014), the two men married formally in 2014.  After Wilkerson died the next year, Roberts applied to the Social Security Administration (SSA) for widower’s insurance benefits, reciting in the application that the men had lived together in a Pennsylvania common law marriage since 1990.  (This was necessary because in order to be eligible for such benefits, the couple had to have been married at least ten years.) The SSA denied the claim, and therein hangs an extended tale, resulting ultimately in the April 23, 2018, ruling by U.S. District Judge Berle M. Schiller in Roberts v. Berryhill, 2018 WL 1911341, 2018 U.S. Dist. LEXIS 67647 (E.D. Pa.).

Roberts sought “clarification” regarding the denial of benefits and was informed by SSA that it was sending his request to its Philadelphia office. Roberts “followed up” with the Philadelphia office several times, but was repeatedly told his application was “still under consideration” and the benefits could not be paid.  He then filed a Petition for Declaration of Common Law Marriage in the Philadelphia Orphan’s Court, a branch of the Common Pleas Court, naming the SSA as an “interested party” and serving a citation on the agency to respond to his Petition.  The agency filed a non-committal response, saying that it “does not have any knowledge or information concerning the facts contained in the Petition and, therefore, is unable to show cause as to why the Petition should or should not be granted.”  The Orphans’ Court granted Roberts’ petition, in one of many retroactive applications of the constitutional principles announced by the Supreme Court in Obergefell v. Hodges (2015), and declared that he and Wilkerson “entered into a valid and enforceable marriage under the laws of the Commonwealth of Pennsylvania on July 4, 1990, and remained married until the death of Bernard O. Wilkerson on December 22, 2015.”  The SSA neither appeared at the hearing nor appealed the ruling.

The U.S. Attorney for the Eastern District of Pennsylvania issued a statement that a new application by Roberts for the widower’s benefits would be “processed and evaluated by the SSA in light of the court’s order recognizing the validity of the common law marriage between Mr. Roberts and Mr. Wilkerson.” Would that it were so, but it was not.  The SSA continued to stonewall, and almost three years after same-sex marriage became legal in Pennsylvania under the Whitewood decision, SSA informed Roberts that it was not prepared to grant his application because “there has not been a policy interpretation ruling on Common Law Same-sex marriages.”  This prompted Roberts to file the instant lawsuit, seeking a court order requiring SSA to recognize his marriage and pay the benefits.  SSA responded by again informing Roberts that he was not entitled to the benefits, and filed a motion to dismiss. The court held oral argument on the motion on November 20, 2017, and issued an Order warning the SSA that the Administration’s arguments were “unavailing” and that it needed to “revise its decision” or provide an explanation as to why Roberts was not entitled to benefits, demanding a response in 30 days after Roberts provided additional documentation that he agreed to do at the hearing.

Finally, on December 22, 2017, the SSA notified Roberts’ attorney that it was granting his claim for benefits, and sent official notification of its revised decision on January 2, 2018, whereupon Roberts moved the court to enter judgment in his favor based on the revised decision. The court deferred ruling on that and ordered Roberts to file a petition for fees and costs.

In his April 23 ruling, Judge Schiller found that Roberts is a “prevailing party” for purposes of 28 U.S.C. Sec. 2412(a)(1), since his lawsuit had obtained a “material alteration in the parties’ legal relationship” which was “judicially sanctioned.” Wrote Schiller, “The court provided its imprimatur in this case when it ordered the SSA to either revisit its decision on Roberts’ claim for benefits and either revise the decision or provide an explanation as to why he was not entitled to benefits by a Court-imposed deadline.”  He rejected SSA’s argument that its reversal of position on Roberts’ claim was “voluntary.”  “After months of what can best be described as governmental intransigence, the SSA finally awarded benefits to Roberts only after its motion to dismiss his claim was all but denied.  Moreover, following oral argument, the SSA was well aware of the Court’s ‘dim view’ of the Administration’s position.  Specifically, the Court disagreed with the SSA’s argument that it required more information than the Orphans’ Court’s record provided, noting that Roberts should not have to ‘prove the case twice.’”

Another aspect of the fee award statute is a requirement, before issuing a fee award against the government, that the court find that the government’s position was “not substantially justified.” As to this, Judge Schiller’s opinion was particularly cutting.  He rejected SSA’s argument that it was not bound by the Philadelphia Court of Common Pleas order declaring Roberts and Wilkerson had a valid common law marriage.  He pointed to the Social Security Act, 42 U.S.C. Sec. 416, which states, in pertinent part, that “an applicant for benefits is the widower of a fully or currently insured individual if the courts of the state in which such insured individual was domiciled at the time of death would find that such applicant and such insured were validly married at the time such insured individual died.”  Thus, Roberts argued and Schiller agreed, the SSA was bound by the state court’s determination.  SSA argued that only a ruling by a state’s highest court would be binding on it, but Schiller pointed out that under Pennsylvania law, “when a court declares a marriage valid, unless reversed upon appeal, the declaration shall be conclusive upon all persons concerned,” citing 23 Pa. C.S. sec. 3306.  Thus, a Pennsylvania court would not question the validity of the order obtained by Roberts.  “The SSA had an opportunity to challenge Roberts’ claim of a common law marriage,” but did not take any steps to do so, having never contested or appealed the ruling by the Orphans’ Court.

“The SSA chose to ignore the courts and statutes of Pennsylvania and instead declare itself arbiter of Pennsylvania law on common law marriage. In so doing, it took an unreasonable legal position.  Thus, its position regarding the effect of the Orphans’ Court decree was not substantially justified, and the court can grant Roberts’ application for attorney’s fees,” wrote the judge.  Finding the amount for which Roberts applied to be reasonable, the court awarded $27,720 in fees and $400 (the amount of the filing fee) in costs.

In a concluding paragraph, Schiller was critical of how the SSA behaved throughout this story. “Despite Roberts’ longstanding common law marriage, the SSA spent months searching for reasons to deny him benefits based on that marriage, allegedly because the Administration did not have a ‘policy interpretation’ on same-sex common law marriages in Pennsylvania.”  He characterized this as an “unjustifiable approach” in handling Roberts’ claim, which he said was “contrary to the purpose behind the Social Security Act and to prevailing case law in this country.”

Roberts is represented by Michael Patrick Yingling of Reed Smith LLP, Chicago.

A final note: Pennsylvania legislatively abandoned the doctrine of common law marriage prospectively as of January 2, 2005. Only common law marriages performed prior to that date are recognized and valid under Pennsylvania law.

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New York’s Top Court Affirms Lifetime Sex Offender Status for Man Acquitted by a Jury

In a ruling that received some surprised comment from the media, the New York Court of Appeals affirmed by a 6-1 vote a decision by Kings County Supreme Court Justice Vincent Del Giudice to assign sufficient points under the state’s Sex Offender Registration Act (SORA) to a man who was acquitted of all the felony sex crimes charges against him to place him in the category of a level 2 sex offender, which requires lifetime registration and other restrictions under SORA.

The defendant, Quinn Britton, was charged with first-degree rape, two counts of criminal sexual act in the first degree (felony charges), and one count of second-degree sexual abuse (a misdemeanor charge). The charges, based largely on the testimony of the Britton’s teenage niece, stemmed from a Thanksgiving visit by the victim and her mother to the victim’s grandmother, who is Britton’s mother.  The claim is that grandma dosed off and the defendant invited the 13-year-old victim into his bedroom, where he induced her to undress, fondled and kissed her breasts, performed oral sex on her, had “penetrative sex” with her, and then had her perform oral sex on him.

The victim’s older brother testified that she came to him in December upset, and told him about the incident, although her account on that occasion said that defendant “attempted” to have penetrative sex but could not because his penis “wouldn’t fit.” The police were notified, and a detective made notes of statements the defendant made after waiving his Miranda rights, but there is no signed confession and the notes differ from the victim’s account.  The only sexual acts to which the defendant clearly admitted were fondling and kissing the victim’s breasts, the subject of the misdemeanor charge.  All of the other evidence presented at trial was circumstantial, there was no physical evidence of sexual assault, and the case came down to “she said, he said.”

The jury struggled with the case, sending out three notes concerning deadlock – an inability to reach a verdict — but ultimately convicted on the misdemeanor charge and acquitted on the felony charges. At the subsequent sentencing and SORA hearing, Justice Del Giudice announced that based on the victim’s grand jury and trial testimony, he found “clear and convincing evidence” that the defendant engaged in the charged conduct for which he had been acquitted by the jury, and assigned 25 points on the SORA scale, which put Britton into the level 2 offender category, mandating lifetime registration and other restrictions.

On appeal, Britton protested that the acquittal meant that the jury had chosen to credit his testimony and to reject that of the victim, so there could not be a finding of clear and convincing evidence that he committed the charged acts. However, the Appellate Division in Brooklyn affirmed, noting that “clear and convincing evidence,” a civil standard of proof, is a less demanding standard than “proof beyond reasonable doubt” required for a criminal conviction, and that New York precedents allow judges to assign SORA points based on grand jury testimony and trial testimony that had not convinced the jury of criminal guilt.

The Court of Appeals affirmed in a one paragraph memorandum, stating “Contrary to defendant’s argument, his acquittal of charges at his criminal trial relating to such conduct, does not foreclose the hearing court from finding, by clear and convincing evidence, that he engaged in such acts.” The court provided no further explanation, and did not respond to the lengthy dissenting opinion by Judge Jenny Rivera, who contended that the prosecution “failed” to meet the “heavy burden” of showing by “clear and convincing evidence” that the defendant had engaged in the felony conduct of which he was charged but not convicted.

“Defendant’s trial turned on competing narratives of the complainant and the defendant as the People had no physical evidence or eyewitnesses to the crimes charged,” wrote Rivera. “Despite the acquittal of the felony charges, the SORA court assessed defendant points for having committed the specific conduct on which these charges were based. On the particular facts of this case, in which the only evidence of the conduct for which defendant was assessed these points was rejected by the jury, the SORA court erred in finding clear and convincing evidence of the alleged sexual contact.  Therefore, I would reverse the order adjudicating defendant a risk level two offender, and dissent from the majority’s contrary determination on this appeal.”

In support of her dissent, Judge Rivera noted that cases cited by the court in support of its decision were not really on point, because they involved situations where the defendants entered guilty pleas and the record upon which the SORA court had to rely in assigning points was necessarily based on grand jury testimony and victim statements that were not made in court under oath and subject to cross-examination. This case is different; the victim’s testimony was subject to cross-examination and failed to persuade the jury.

Underlying this odd situation is the absurd contention that requiring somebody to register for the Sex Offender Registry is not “punishment,” a position that the U.S. Supreme Court has taken in cases rejecting constitutional challenges to state sex offender registration acts. Although New York’s SORA is not as draconian as some other states’ registration laws, since it doesn’t impose stringent residential and occupational restrictions, it still exposes a level 2 or 3 registrant to the risks inherent in having their name, photograph and contact information posted on a website accessible to the public, making them targets for social ostracism, employment and housing discrimination, and even physical attacks, and requires them to notify local officials should they travel or move across state lines, potentially subjecting them to the more restrictive requirements imposed by other states.

That a man could be subjected to such requirements after a jury acquitted him of the charges on which they are based is indeed startling, but the Supreme Court has rejected the argument that the Constitution requires more in the way of due process before people can be subjected to mandatory registration.

Britton was represented on appeal by Denise A. Corsi.

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Out Gay Federal Judge Rejects Anonymity for Genderqueer Trans-Masculine Plaintiff

 

U.S. District Judge J. Paul Oetken, himself the first out gay man to be appointed a federal trial judge, has granted a motion by the defendants in an employment discrimination case to lift an order he had previously issued allowing the plaintiff, a “genderqueer and transmasculine” individual, to proceed anonymously as “Jamie Doe” in a discrimination lawsuit against their former employer, Fedcap Rehabilitation Services, and two of Fedcap’s supervisors. Judge Oetken gave the plaintiff 14 days from the April 27 ruling on FedCap’s motion to decide whether they intend to proceed with this suit using their real name.  Doe v. Fedcap Rehabilitation Services, Inc., 2018 WL 2021588, 2018 U.S. Dist. LEXIS 71174 (S.D.N.Y., April 27, 2018).

The plaintiff uses “preferred pronouns of ‘they,’ ‘their,’ and ‘theirs,” wrote the judge. “Doe” alleges that “the Defendants discriminated against Doe based on Plaintiff’s disability (breast cancer, depression, anxiety, and post-traumatic stress disorder), sexual orientation (queer), and gender (gender non-conformity/genderqueer/trans-masculine). Plaintiff also alleges that Defendants retaliated against Plaintiff for exercising their rights under the Family Medical Leave Act.  Plaintiff has since left Fedcap and found new employment.”  Upon filing the lawsuit, Doe had moved to proceed under a pseudonym. The court granted the motion without prejudice to the Defendants’ right to seek lifting of the order, which they have now done.

The starting point for the court is Rule 10(a) of the Federal Rules of Civil Procedure, which provides that “all the parties” be named in the title of a Complaint. The 2nd Circuit, which has appellate jurisdiction over cases filed in the Southern District of New York, has ruled that this requirement “serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly.”  That court has commented, “When determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff’s interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant.”  The 2nd Circuit has identified a non-exclusive list of ten different factors that courts might consider in conducting such a balancing test.

The plaintiff identified four harms if their name is revealed in this litigation. Plaintiff says their trans-masculinity is an “intimate detail” that they don’t want to disclose through the public record; that “outing them” as trans-masculine would compound the trauma they have already suffered from the defendant’s discrimination; that “genderqueer individuals suffer disproportionately from discrimination” and “outing” them in this way would place them “at further risk of discrimination by employees at their new job,” and finally that, as a parent of school-age children, plaintiff is concerned that disclosing their identity may expose their children to bullying.”

The defendants identified three types of prejudice to them if plaintiff is allowed to proceed anonymously. First, the “non-trivial cost of sealing or redacting court filings;” second, that “anonymity might allow Plaintiff to make accusations that they would not have made if their identity were publicly known;” and third, “Defendants contend that anonymity creates an imbalance when it comes to settlement negotiations.”  The defendants, who are not anonymous, may feel public pressure to settle the case in order to avoid bad publicity, while an anonymous plaintiff might “hold out for a larger settlement because they face no such reputational risk.”

Judge Oetken concluded that the case “presents no particularly strong public interest in revealing Plaintiff’s identity beyond the ‘universal public interest in access to the identities of litigants,’” which he remarks is “not trivial.” But the public interest would not be “especially harmed if Plaintiff proceeded pseudonymously.”

However, wrote the judge, “The key issue here is the extent to which Plaintiff has already revealed their gender and sexual orientation to the general public. Defendants point to Plaintiff’s voluntary participation in a news story for a major news outlet.  In the story, Plaintiff used their real name, identified as genderqueer, and revealed other details about their gender non-conformity.  The article also featured a photograph of Plaintiff, and the picture specifically illustrated Plaintiff’s non-conformance with gender norms.”  Thus, the defendants argued, Doe had already voluntarily disclosed “the sensitive issues they seek to keep secret in this case.”

Doe disagrees, saying they have revealed their sexual orientation but not their gender identity, particularly their identity as “trans-masculine,” which would be disclosed if they have to proceed under their real name in this lawsuit. But this argument did not persuade Judge Oetken, who wrote, “But while that is true, the news story still shows that Plaintiff was comfortable with putting their gender-non-conformity in the public eye.  The Court is mindful that coming out is a delicate process, and that LGBTQ individuals may feel comfortable disclosing one aspect of their identity but uncomfortable disclosing another.  Nevertheless, Plaintiff’s very public coming out as genderqueer undermines their arguments about the harm that would be caused by disclosure of their trans-masculinity.”

The court concluded that the issue was “whether the additional disclosure of Plaintiff’s identity as trans-masculine would so harm Plaintiff as to outweigh the significant prejudice to Defendants and the public interest in access to the identities of the litigants. Plaintiff has not met that significant burden.”  Oetken suggests that Plaintiff wants “what most employment-discrimination plaintiffs would like: to sue their former employer without future employers knowing about it,” but that is not how the civil litigation system is set up.  “Defendants – including two individuals – stand publicly accused of discrimination and harassment, including detailed allegations of misconduct.  Defendants do not have the option of proceeding pseudonymously,” commented Oetken. “Allowing Plaintiff to proceed anonymously would put Defendants at a genuine disadvantage, particularly when it comes to settlement leverage.  Courts allow such an imbalance only in unique circumstances, and Plaintiff has not shown that this is one of those special cases.”

While acknowledging that the disclosure of Doe’s trans-masculinity “would be difficult and uncomfortable,” wrote the judge, “this alone is not enough to demonstrate the exceptional circumstances required to proceed pseudonomously, especially in light of Plaintiff’s public identification as genderqueer.”

During the early years of the AIDS epidemic, many federal courts granted motions for plaintiffs suing for AIDS-related discrimination to proceed as John Doe or Jane Doe, accepting the argument that requiring them to sue under their own names would have compounded the discrimination they had suffered, especially in light of the media interest in reporting about legal issues stemming from the epidemic. Today, when there is considerable litigation by transgender individuals, including high school students seeking appropriate restroom access, it is not unusual to find that the court will refer to plaintiffs by their initials, even though the plaintiffs — represented by public interest law firms — may have revealed their names and posed for photos to publicize their cases.  One suspects that “Jaime Doe” would have been allowed to proceed anonymously had they not already appeared under their name in news stories.

Doe is represented by Brittany Alexandra Stevens of Phillips & Associates PLLC, and Marjorie Mesidor of Phillips & Phillips PLLC. Attorneys from the law firm of Epstein, Becker & Green, P.C., represent the defendants.

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Appellate Courts Rule on Discrimination Against Gay Jurors

 

On May 3, two appellate courts issued rulings on appeals of criminal convictions in which gay men in the jury pool were dismissed on “peremptory challenges” by the prosecuting attorneys.  The California 3rd District Court of Appeal decided that the defendant in People v. Douglas, 2018 Cal. App. LEXIS 403, a gay man, is entitled to a new trial.  The Nevada Supreme Court ruled in Morgan v. State, 2018 Nev. LEXIS 31, 134 Nev. Adv. Rep. 27, against the defendant’s appeal.  While both courts agree that striking jurors from a panel just because they are gay violates the constitution, they adopted different approaches to the issue.

Brady Dee Douglas’s former boyfriend, described in the opinion for the California court by Justice Elena J. Duarte as “a male prostitute,” told Douglas that a man, identified in the opinion as Jeffrey B., had “shorted him money following a prearranged sexual encounter.  Douglas and another man “tracked down Jeffrey and demanded payment,” but Jeffrey fled.  The men gave chase.  “During a high-speed freeway chase, [Douglas] pointed a gun at Jeffrey and shot at his car several times.”  The court does not mention how Douglas and his confederate came to be arrested.

Douglas was prosecuted on multiple charges and convicted by the jury.  The trial judge sentenced him to six years in prison.  Appealing his conviction, he objected that the trial judge allowed the prosecutor to strike the only two openly gay men in the juror pool using peremptory challenges.  During the jury selection process, parties can move to strike potential jurors “for cause” by convincing the judge that the juror could not fairly decide the case.  In California, each party is allowed to excuse a certain number of jurors without providing any explanation – called a peremptory challenge – but the other party can object if it appears that the challenger is engaging in unconstitutional discrimination based on the juror’s race, sex or sexual orientation.

Douglas’s lawyer objected to the peremptory challenges to the gay jurors.  The trial judge asked why they were being challenged. The prosecutor said he challenged one man because he had a close friendship with a public defender (a lawyer employed in defending indigent people charged with crimes) who had told the juror that she considered prosecutors to be on “the dark side.”  The other man was challenged based on his demeanor during voir dire, the prosecutor noting that the man leaned forward and seemed attentive when defense lawyers were speaking but leaned back and gave short and non-descriptive answers when the prosecutor was speaking.

Then the prosecutor added, as to both of them, “In addition, in a case in which the victim in the case is in a relationship and is not in a relationship with a female but is not out of the closet and actually was untruthful with the police about the extent of his relationship with a male prostitute, I think that that particular person’s testimony may be viewed with bias by those who are willing to be openly gay and not – not lie about it and can be frank about it, and he would view that as a negative character trait, and an individual who attempts to maintain given whatever grave idea, sexuality he has, but is willing to lie about it.  So I think there is a number of reasons, both specific to the case that are sexuality neutral, not – I’m not asserting in any way that is an adequate basis for a Wheeler motion, but even given that I think there are bases not only in their reaction in court to answering questions, but also given the specific facts of this case.”  The quote above is from the transcript made during jury selection, which suggests the prosecutor is verbally challenged or the court reporter had trouble keeping up with the statement.  A Wheeler motion relates to a California Supreme Court opinion, People v. Wheeler, 22 Cal. 3d 258 (1978), concerning objections to peremptory challenges.  Clearly, the prosecutor assumed that openly gay men would be biased against a closeted gay witness (Jeffrey B.) who patronized escorts.

The defense attorney responded that “under that justification, anyone who is openly gay” would automatically be challenged, and the lawyers for both defendants formally objected.  The trial court denied the defense’s objection to the peremptory challenges, and excused the two gay men from the jury pool, after finding that the prosecutor’s objections to the two gay men were non-discriminatory justifications.  “In effect,” wrote Justice Duarte, “that was the rough equivalent to applying a mixed-motive analysis to the challenges,” although not entirely so because that trial judge had questioned “in passing whether a Wheeler motion based on sexuality discrimination was appropriate.”

In a prior ruling on Douglas’s appeal, this panel of the Court of Appeal sent the case back to the trial court, confirming that a Wheeler motion based on sexuality discrimination is appropriate, and directing the trial judge to reconsider whether these jurors should have been dismissed.  If not, a new trial would be needed. But Douglas petitioned for a reconsideration by the Court of Appeal, arguing that a mixed-motive analysis is inappropriate on a Wheeler motion, and that the verdict should be vacated and a new trial ordered because it was clear that the prosecutor challenged the jurors because they are openly gay.

The Court of Appeal agreed to reconsider its ruling, and amicus briefs were submitted by Equality California, Lambda Legal, and National Center for Lesbians Rights, and the Los Angeles County Public Defender’s Office.

In a rare move, the three-judge panel changed its mind and decided, by a vote of 2-1, that a mixed-motive analysis is improper in such a situation, so the conviction must be vacated.

Justice Duarte summarized the decision simply: “This case is about fairness and equality in our criminal justice system.  When a party exercises a peremptory challenge against a prospective juror for an invidious reason, the fact that the party may also have had one or more legitimate reasons for challenging that juror does not eliminate the taint to the process.  We reject the application in these circumstances of the so-called “mixed motive” or “dual motive” analysis, which arose in employment discrimination cases as a way for defendant-employers to show that they would have taken an adverse action against a plaintiff-employee whether or not an impermissible factor also animated the employment decision.  We hold it is not appropriate to use that test when considering the remedy for invidious discrimination in jury selection, which should be free of any bias.”

In this case, the prosecutor assumed that openly gay men as jurors would be biased against the victim, a closeted man who hired escorts, when the defendant was an openly gay man.  By this thinking, any openly gay man, even if he swore during voir dire that he could be unbiased, would be presumed to be biased and excused from the jury.  This is exactly the kind of thinking that the U.S. Supreme Court was combatting in the leading case of Batson v. Kentucky, 476 U.S. 79 (1986), where it condemned the practice of prosecutors using peremptory challenges to keep African-Americans off juries in cases involving African-American parties.  This issue isn’t just one of fairness as between the parties, but also fairness to the potential jurors. The Supreme Court observed that people called to jury duty should not suffer discrimination based on bias and stereotypes about them.  Citizens have an equal right to serve on juries, regardless of their race or, as the California courts have held, their sexual orientation.

Associate Justice Harry Hull, Jr., argued in his dissenting opinion that the mixed-motive analysis was the correct one, that the defendant was tried “before an impartial judge and found guilty beyond a reasonable doubt by an unbiased jury while represented by competent counsel.”  He objected to the idea of vacating this verdict where, according to him, “the record is devoid of any evidence showing the non-neutral reason was determinative in striking the prospective jurors or that the two facially valid reasons were unsupportable.

Of course, vacating the verdict is not the end of the case, since the prosecutor can retry the defendant.

In the Nevada case, a criminal prosecution in which the defendant was African-American, sexual orientation was not really an issue.  However, the defense objected to the prosecution’s use of a peremptory challenge that kept a gay man off the jury after he had expressed approval of media criticism of the police in their dealings with African-Americans.  The prosecution relied on this comment to justify its peremptory challenge, but the defense argued that heterosexual jurors who expressed similar views had not been excused from the panel.

The Nevada Supreme Court ruled that the trial judge had correctly overruled the defendant’s challenge to the removal of the gay juror.  However, before stating that conclusion Chief Justice Michael Douglas wrote for the court, “Before addressing Morgan’s contention that the district court erred in  overruling his Batson challenge based on sexual orientation, we take this opportunity to first address whether sexual orientation should be recognized under Batson – a novel issue before this court.  In answering in the affirmative, we align this court with the Ninth Circuit.”

The reference is to the U.S. Court of Appeals for the 9th Circuit, which ruled in a 2014 case that as a result of the U.S. Supreme Court’s ruling striking down the Defense of Marriage Act in 2013, it appeared to the 9th Circuit judges that the Supreme Court was treating sexual orientation discrimination as meriting “heightened scrutiny” in equal protection cases.  This is, in fact, the test for whether a party can challenge discrimination in the jury selection process.  If it appears that a party is trying to eliminate jurors due to a characteristic that gets heightened scrutiny in a constitutional discrimination case, the other party can bring a Batson challenge, and the reasons for striking the juror become a subject of inquiry for the court.

The Nevada Supreme Court found the 9th Circuit’s reasoning persuasive, particularly noting that this was not just a question of fairness for the litigants but also for prospective jurors, quoting the 9th Circuit opinion, which stated that “strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rights and rituals.” Such strikes “deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve.”

Turning to the peremptory challenge in this case, the court held that the trial judge was correct to allow it over the defense’s objection.  As in the Douglas case, there were two jurors in the pool for Morgan’s case who revealed by their answers during voir dire that they were gay.  But the prosecutor challenged only one of them, and the prosecutor did not bring a peremptory challenge to the other gay juror.  “Accordingly, there is no pattern of strikes against gay members, and no disparate treatment of gay members,” wrote Chief Justice Douglas.  Furthermore, he noted, “the nature of Morgan’s criminal case did not involve an issue sensitive to the gay community.  Therefore, because we are not convinced that the totality of the circumstances gave rise to an inference of discrimination, Morgan failed to make out a prima facie case of discrimination.”  The prosecutor had also given an explanation having nothing to do with the juror’s sexual orientation, the juror’s approval of media criticism of the police, and the court found this a satisfactory reason, noting that some heterosexual jurors may have voiced criticisms, but they were not as strongly stated as by the gay potential juror.

It is possible that the California Court of Appeals would have agreed with the Nevada Supreme Court’s handling of the case, since the Nevada ruling did not embraced a mixed-motive analysis, but instead concluded that there was no basis to infer that the challenged juror’s sexual orientation had anything to do with the prosecution’s decision to keep him off the jury.

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Can Three Parents Make a Family in New York?

 

                In an opinion issued on April 10, New York Family Court Judge Carol Goldstein confronted the question whether there can be a third parent – an adult with legal rights to seek custody and visitation of a child who already has two legal, biological parents – in the context of a married gay male couple and the woman who agreed to have a child with them and share parenting.  She concluded that the “non-biological father” in this triad has “standing” under New York’s Domestic Relations Law to seek custody and visitation of the child, but not necessarily to be designated as a “legal parent.”  The case is Matter of David S. and Raymond T. v. Samantha G., 2018 N.Y. Misc. LEXIS 1249, 2018 N.Y. Slip Op 28110 (N.Y. County Family Court, April 10, 2018).

 

                As usual in contested child custody cases, the judge assigned pseudonyms to the parties and the child in order to protect their privacy, naming the men David S. and Raymond T., the woman Samantha G., and their child Matthew Z. S.-G..  Throughout the opinion, however, she refers to the adults as Mr. S., Mr. T., and Ms. G.

 

                The adults were all friends.  “Over brunch in May 2016, the three friends discussed how each wished to be a parent and devised a plan whereby a child would be conceived and raised by the three parties in a tri-parent arrangement,” wrote Judge Goldstein.  “While the parties agreed that the mother would continue to live in New York City and the men would continue to reside together in Jersey City, the parties agreed that they would considered themselves to be a ‘family.’”  They carried out this plan, but never reached agreement on a signed written document.

 

                Over a period of eight days, Mr. S. and Mr. T. “alternated the daily delivery of sperm to Ms. G for artificial insemination.  On or about Labor Day weekend, 2016, Ms. G. announced that she was pregnant.  The three parties publicized the impending birth on social media with a picture of all three parties dress in T-shirts.  Misters S. and T.’s shirt each said, ‘This guy is going to be a daddy’ and Ms. G’s shirt said, ‘This girl is going to be a mama.’”

 

                They all participated fully in preparing for the arrival of the child, attending a natural childbirth course, creating a joint savings account for the child (to which Mr. T. had, as of the time of the court’s hearing in this case, contributed 50% of the funds), agreeing on a pediatrician and making medical decisions jointly, and planned that the child would be delivered with the assistance of a midwife at the men’s New Jersey home.  This occurred on May 6, 2017. 

 

It was not until after the child was born that a “private genetic marker test” determined that Mr. S.’s sperm initiated the pregnancy.  He signed a New Jersey acknowledgment of paternity on May 11.  They named the child using names of significance from all three families.  After Matthew was born, the entire family spent a week at the men’s home, after which Ms. G returned with Matthew to her home in New York County (Manhattan).  Matthew, still an infant, lives mainly with his mother, although the men have had regular parenting time and last summer the parties vacationed together in the Catskills.

 

Because infant Matthew was nursing on demand, overnight visits with the men had not been scheduled, but were supposed to start during April.  “When speaking to Matthew,” wrote the judge, “all parties refer to Ms. G. as ‘Momma,’ Mr. S. as ‘Daddy’ and Mr. T. as ‘Papai,’ which is Portuguese for father.”  All three parents were present at the hospital when Matthew had hernia surgery at two months.

 

Mr. T. and Ms. G. have a contract with a literary agent to write a book about their joint parenting venture.  In recognition of Mr. T’s profession of meteorology, the provisional title is ‘Forecasting a Family.’”

 

However, wrote Judge Goldstein, “Issues arose between the two men and Ms. G with respect to the parenting of Matthew as well as to the extent of parental access by Misters S. and T.  The relationship among the parties became strained.”  Misters S. and T. filed a joint petition in the Family Court in New York County on November 12, seeking “legal custody and shared parenting time” with Matthew by court order.  On December 6, Ms. G filed a “cross-petition” seeking sole legal custody of Matthew, with the men being accorded “reasonable visitation.”  None of the parties was seeking an “order of paternity or parentage” in their initial filings with the court. 

 

The court asked the parties to submit memoranda of law about the parenting issues, and how the N.Y. Court of Appeals’ Brooke S.B. decision from 2016 might apply.  In Brooke S.B., the court overturned a 25-year precedent and ruled that a non-biological parent could have standing to seek custody and visitation under certain circumstances.  That case involved a custody and visitation dispute of a lesbian couple over a child born to one of them through donor insemination.

 

The main issue of dispute between these parties, which came out in their briefs, is about Mr. T.’s legal status toward the child.  Under New York law, the husband of a woman who gives birth is presumed to be the child’s father, but the legal status of a man who is married to another man whose sperm is used to conceive a child with a woman to whom he is not married presents new, unresolved legal issues.  Ms. G  agrees that Mr. T. should have standing to seek visitation, but she argued “strenuously” that “the right to seek custody and visitation as a ‘parent’ under the Domestic Relations Law does not automatically bestow parentage on the non-biological party” and asked that the court not declare Mr. T. to be a third legal parent.  On the other hand, the men argued that not only should Mr. T. have standing to seek custody and visitation as a ‘parent,’ but that the court should also declare him to be a third legal parent of Matthew.

 

Judge Goldstein found that under the circumstances of this case, with an emphasis on the understanding and agreement of the parties when they devised their plan to have and raise a child together, it was clear that Mr. T. has standing to seek custody and visitation in line with the Brooke S.B. decision.  “In making this decision,” she wrote, “this court is specifically taking into consideration that the relationship between Mr. T. and Matthew came into being with the consent and blessing of the two biological parents and that both biological parents agree that Mr. T. should have standing to seek custody and visitation.” 

 

She identified as the “fundamental principle” of the Court of Appeals precedent that the state’s domestic relations law “must be read to effectuate the welfare and best interests of children, particularly those who are being raised in a non-traditional family structure.  The parent-child relationships fostered by children like Matthew, who are being raised in a tri-parent arrangement, should be entitled to no less protection than children raised by two parties.” 

The judge noted the likelihood that this kind of situation will recur, pointing out the differences between the use of anonymous sperm donors where no parental role is contemplated for the sperm donor, and the situation where a known donor is involved “where the parties agree that the provider of the egg or sperm will be a parent.”

 

She also noted recent New York decisions that had denied standing or parental status to sperm donors, where all these circumstances were not present, particularly where lesbian couples obtained sperm from a known donor but there was no understanding or agreement that the donor would be considered a parent of the child.  These situations are less difficult to analyze from a legal perspective if the parties negotiate and sign carefully worded written agreements memorializing their understanding of their rights and responsibilities, although such documents are not binding on a court, whose main task under the domestic relations statutes is to make such decisions in the best interest of the child.

 

The court found that the usual “presumption of legitimacy” used to determine parental standing in donor insemination cases was not relevant in considering the status of Mr. T., even though Mister S. and Mr. T. are married to each other.  “This is because the presumption that Matthew is the legitimate child of the married couple, Misters S. and T., would indisputably be rebutted by evidence that all three parties agreed that Matthew would be raised in a tri-parent arrangement and that Ms. G., the biological mother, would be a parent to Matthew.”  In other words, this is not a gestational surrogacy case, where the woman’s only role was to produce the child and agree to forego parental rights.

 

However, noting that the men’s original filing with the court did not seek an order of “parentage” on behalf of Mr. T, the judge declined to issue such an order.  “Moreover,” she wrote, “there is no need for the issue of parentage to be addressed since pursuant to Brooke S.B., Mr. T. may seek custody and visitation as a ‘parent’ under DRL section 70(a) without a determination that he is a legal parent.  If, in the future, a proper application for a declaration of parentage is made and there is a need for a determination of parentage, for instance, to rule on a request for child support, the court may address this issue.  This court, however, notes that there is not currently any New York statute which grants legal parentage to three parties, nor is there any New York case law precedent for such a determination.”

 

So a child can have three parents, or at least three adults with standing to seek custody and visitation, while at the same time having only two “legal parents,” in New York.  Unfortunately, New York’s Domestic Relations Law has not been revised by the legislature to take account of the sorts of “non-traditional” family structures that have emerged over the past half century as assisted reproductive technology has become relatively easy for people to use without the assistance of medical specialists and a diversity of family structures have arisen through social evolution.

 

This case will now proceed to consideration by the judge about what kind of custody and visitation arrangement would be in Matthew’s best interest, to embody in a formal order that would protect Mr. T’s rights as a non-biological parent.  While having determined that Mr. T has standing to seek custody and visitation, the judge’s opinion expresses no view as to the viability of tri-partite custody, without actually ruling it out as a possibility. 

 

Misters S. and T. are represented by Patricia A. Fersch.  Ms. G is represented by Alyssa Eisner, or Sager Gellerman Eisner LLC.

 

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Federal Court Rejects Trump Administration Ploy and Orders Trial on Trans Military Ban

U.S. District Judge Marsha J. Pechman issued an Order on April 13 in Karnoski v. Trump, one of four pending legal challenges to the Trump Administration’s announced ban on military service by transgender people.  Judge Pechman, who sits in the Western District of Washington (Seattle), rejected the Administration’s argument that existing preliminary injunctions issued by her and three other federal district judges last year against the transgender ban are moot because of President Donald J. Trump’s March 23 Memorandum, which purported to “revoke” his August 25, 2017, Memorandum and July 26, 2017, tweets announcing the ban.  Karnoski v. Trump,  2018 WL 1784464 (W.D. Wash.).

Her skepticism as to this is clear from her description of events: “The 2018 Memorandum confirms [Trump’s] receipt of [Defense Secretary James Mattis’s] Implementation Plan, purports to ‘revoke’ the 2017 Memorandum and ‘any other directive [he] may have made with respect to military service by transgender individuals [an oblique reference to the July tweets],’ and directs the Secretaries of Defense and Homeland Security to ‘exercise their authority to implement any appropriate policies concerning military service by transgender individuals.’”  Thus, the judge rejected the Administration’s contention that Mattis was directed by the President to have a new study made to decide whether to let transgender people serve, and saw it for what it was: an order to propose a plan to implement Trump’s announced ban.

Judge Pechman also rejected the government’s argument that the policy announced in the February 22 Memorandum signed by Secretary James Mattis either deprives all the plaintiffs in the case of “standing” to sue the government, or that the policy it announces is so different from the one previously announced by President Trump that the current lawsuit, specifically aimed at the previously announced policy, is effectively moot as well. The government argued that due to various tweaks and exceptions to the policy announced on March 23, none of the individual plaintiffs in this case were threatened with the kind of individualized harm necessary to have standing, but Pechman concluded that each of the plaintiffs, in facts submitted in response to the March 23 policy, had adequately shown that they still had a personal stake in the outcome of this case.

Instead, and most consequentially, Judge Pechman found that the court should employ the most demanding level of judicial review – strict scrutiny – because transgender people are a “suspect class” for constitutional purposes.  However, Judge Pechman decided that it is premature to grant summary judgment to the plaintiffs, because disputed issues of material fact will require further hearings to resolve.  One is whether the government can prove that excluding transgender people from the military is necessary for the national security of the United States.  Another is whether the purported “study” that produced the February 22 “Report and Recommendations” and Mattis’s Memorandum are entitled to the kind of deference that courts ordinarily extend to military policies.

Judge Pechman’s boldest step is abandoning her prior ruling in this case that the challenged policies are subject only to heightened scrutiny, not strict scrutiny.  Although the Supreme Court has not been consistent or precise in its approach to the level of judicial scrutiny for constitutional challenges to government actions, legal scholars and lower courts have generally described its rulings as divided into three general categories – strict scrutiny, heightened scrutiny, and rationality review.

If a case involves discrimination that uses a “suspect classification,” the approach is strict scrutiny. The policy is presumed unconstitutional and the government has a heavy burden of showing that it is necessary to achieve a compelling government interest, and is narrowly tailored to achieve that interest without unnecessarily burdening individual rights.  The Supreme Court has identified race, national origin and religion as suspect classifications, and has not identified any new such classifications in a long time.  Lower federal courts have generally refrained from identifying any new federal suspect classifications, but the California Supreme Court decided in 2008 that sexual orientation is a suspect classification under its state constitution when it struck down the ban on same-sex marriage.

Challenges to economic and social legislation that do not involve “suspect classifications” or “fundamental rights” are generally reviewed under the “rational basis” test. They are not presumed unconstitutional, and the burden is on the plaintiff to show that there was no rational, non-discriminatory reason to support the challenged law.  Courts generally presume that legislatures have rational policy reasons for their actions, but evidence that a law was adopted solely due to animus against a particular group will result in it being declared unconstitutional.

During the last quarter of the 20th century, the Supreme Court began to identify some types of discrimination that fell somewhere between these existing categories, and the third “tier” of judicial review emerged, first in cases involving discrimination because of sex.  The Supreme Court has used a variety of verbal formulations to describe this “heightened scrutiny” standard, but it places the burden on the government to show that such a law actually advances an important government interest.

So far, litigation about transgender rights in the federal courts has progressed to a heightened scrutiny standard in decisions from several circuit courts, including recent controversies about restroom access for transgender high school students, public employee discrimination cases, and lawsuits by transgender prisoners. Ruling on preliminary injunction motions in the transgender military cases last fall, Judge Pechman and the three other federal judges all referred to a heightened scrutiny standard.  Now Judge Pechman blazes a new trail by ruling that discrimination against transgender people should be subject to the same strict scrutiny test used in race discrimination cases.

It is very difficult for the government to win a strict scrutiny case, but its best shot in this litigation depends on the court finding that the policy announced by Mattis is entitled to deference, and this turns on whether it is the product of “expert military judgment,” a phrase that appears in the Mattis Memorandum and the Report.   Judge Pechman has already signaled in her Order her skepticism as to this.  By characterizing this as an “Implementation Plan,” she implies that the question whether Trump actually consulted with generals and military experts back in July before tweeting his absolute ban remains in play, and she pointedly notes the continued refusal by the government to reveal who, if anyone, Trump consulted.

“Defendants to date have failed to identify even one General or military expert he consulted,” she wrote, “despite having been ordered to do so repeatedly. Indeed, the only evidence concerning the lead-up to his Twitter Announcement reveals that military officials were entirely unaware of the Ban, and that the abrupt change in policy was ‘unexpected.’”  Here she quotes Joint Chiefs Chairman Gen. Joseph Dunford’s statement the day after the tweets that “yesterday’s announcement was unexpected,” and news reports that White House and Pentagon officials “were unable to explain the most basic of details about how it would be carried out.”  She also notes that Mattis was given only one day’s notice before the announcement.  “As no other persons have ever been identified by Defendants – despite repeated Court orders to do so – the Court is led to conclude that the Ban was devised by the President, and the President alone.”

Thus, it would be logical to conclude, as she had preliminarily concluded last year when she issued her injunction, that no military expertise was involved and so no deference should be extended to the policy. On the other hand, the new “Report and Recommendations” are now advanced by the government as filling the information gap and supporting deference.  But Judge Pechman remains skeptical.  (There are press reports, which she does not mention, that this document originated at the Heritage Foundation, a right-wing think tank, rather than from the Defense Department, and it has been subjected to withering criticism by, among others, the American Psychiatric Association.)

Citing their “study,” the government now claims “that the Ban – as set forth in the 2018 Memorandum and the Implementation Plan – is now the product of a deliberative review. In particular, Defendants claim the Ban has been subjected to ‘an exhaustive study’ and is consistent with the recommendations of a ‘Panel of Experts’ convened by Secretary Mattis to study ‘military service by transgender individuals, focusing on military readiness, lethality, and unit cohesion,’ and tasked with ‘conduct[ing] an independent multi-disciplinary review and study of relevant data and information pertaining to transgender Service members.’  Defendants claim that the Panel was comprised of senior military leaders who received ‘support from medical and personnel experts from across the [DoD] and [DHS],’ and considered ‘input from transgender Service members, commanders of transgender Service members, military medical professionals, and civilian medical professions with experience in the care and treatment of individuals with gender dysphoria.’  The Defendants also claim that the Report was ‘informed by the [DoD]’s own data obtained since the new policy began to take effect last year.’”

But, having “carefully considered the Implementation Plan,” wrote Pechman, “the Court concludes that whether the Ban is entitled to deference raises an unresolved question of fact. The Implementation Plan was not disclosed until March 23, 2018.  As Defendants’ claims and evidence regarding their justifications for the Ban were presented to the Court only recently, Plaintiffs and [The State of Washington, which has intervened as a co-plaintiff] have not yet had an opportunity to test or respond to these claims.  On the present record, the Court cannot determine whether the DoD’s deliberate process – including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon – is of the type to which Courts typically should defer.”

In other words, Pechman suspects that this purported “study” is a political document, produced for litigation purposes, and she is undoubtedly aware that its accuracy has been sharply criticized. Furthermore, she wrote, “The Court notes that, even in the event it were to conclude that deference is owed, it would not be rendered powerless to address Plaintiffs’ and Washington’s constitutional claims, as Defendants seem to suggest.”  And, she noted pointedly, the Defendants’ “claimed justifications for the Ban – to promote ‘military lethality and readiness’ and avoid ‘disrupt[ing] unit cohesion, or tax[ing] military resources’ – are strikingly similar to justifications offered in the past to support the military’s exclusion and segregation of African American service members, its ‘Don’t Ask, Don’t Tell’ policy, and its policy preventing women from serving in combat roles.”  In short, Pechman will not be bamboozled by a replay of past discriminatory policies, all of which have been abandoned because they were based mainly on prejudice and stereotyping.

Thus, although the judge denied for now the Plaintiffs’ motions for summary judgment, it was because factual controversies must be resolved before the court can make a final ruling on the merits.

The Defendants won only one tiny victory in this ruling: a concession that the court lacks jurisdiction to impose injunctive relief against President Trump in his official capacity. However, even that was just a partial victory for Defendants, as Judge Pechman rejected the suggestion that the court lacks jurisdiction to issue a declaratory judgment against the President.  “The Court is aware of no case holding that the President is immune from declaratory relief – rather, the Supreme Court has explicitly affirmed the entry of such relief,” citing several cases as examples.  “The Court concludes that, not only does it have jurisdiction to issue declaratory relief against the President, but that this case presents a ‘most appropriate instance’ for such relief,” she continued, taking note of Trump’s original Twitter announcement, and that two of the operative Memoranda at issue in the case were signed by Trump.  If, as Judge Pechman suspects, the Ban was devised in the first instance by Trump, and by Trump alone, a declaratory judgment that his action violated the Constitution would be entirely appropriate.

Plaintiffs are represented by a team of attorneys from Lambda Legal and OutServe-SLDN, with pro bono assistance from the law firms of Kirkland & Ellis LLP and Newman Du Wors LLP.

(Post script):

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Mississippi Supreme Court, Rejecting Parental Status for an Anonymous Sperm Donor, Says Birth Mother Can’t Challenge Same-Sex Partner’s Parentage

Ruling on a custody contest between a birth mother and her former same-sex spouse on April 5, the Mississippi Supreme Court avoided mentioning the parental presumption that most states automatically apply for the spouse of a woman who gives birth to a child, relying instead on a doctrine called “equitable estoppel” to prevent the birth mother from contesting her former spouse’s parental status.

Although none of the five written opinions signed by different combinations of judges on the nine member court represent the views of a majority, adding them up produces a holding that the existence of an anonymous sperm donor is irrelevant to the determination of parental rights for the birth mother’s same-sex spouse.  The court reversed a ruling by Judge John S. Grant, III, of the Rankin County Chancery Court, that the failure to obtain a waiver of parental rights from an anonymous sperm donor prevents identifying the birth mother’s spouse as a legal parent of the child.

The various complications in this case arose because the relevant facts played out before marriage equality came to Mississippi as a result of the June 2015 Obergefell decision by the U.S. Supreme Court, and because the retrograde Mississippi legislature has neglected to adopt any statutes concerning who would be considered a parent when a woman or a couple use sperm from an anonymous donor obtained through a sperm bank to conceive a child, leaving the courts to sort this out without any legislative guidance.

The story begins in 1999 when Christina Strickland and Kimberly Jayroe began their relationship.  After several years together, they decided to adopt a child.  The adoption of E.J. was finalized in 2007.  Because Mississippi did not allow joint adoptions by unmarried couples, only Kimberly was the legal adoptive parent of E.J..  In 2009, Christina and Kimberly went to Massachusetts to marry, and Kimberly took Christina’s last name.  The Stricklands then returned to their home in Mississippi, where their marriage was not legally recognized.

In 2010, the Stricklands decided to have a child using “assisted reproductive technology” – A.R.T.  They obtained anonymously donated sperm from a Maryland sperm bank.  Kimberly, whom they jointly decided would be the gestational mother, signed the sperm bank’s form providing that she would “never seek to identify the donor” and that the donor would not be advised of Kimberly’s identity.  In Maryland, Kimberly was then recognized as a married woman and Christina was identified as her spouse in the clinic paperwork.  Both women signed the form acknowledging that they were participating in this process as a married couple and would both be parents of the resulting child.

According to the plurality opinion by Justice David Ishee, “Christina testified that she was involved in and supportive through every step of the conception and pregnancy.”  She also testified that their plan was to go to Massachusetts for the delivery of the baby, so that their marriage would be recognized and both recorded as parents on the birth certificate.  But for medical reasons that did not occur.  Six week before her due date, Kimberly gave birth to the child, Z.S., in an emergency cesarean section surgical procedure in a Mississippi hospital.  Since Mississippi did not recognize the marriage, the birth certificate shows Kimberly as the only parent.

Over the next two years, the women functioned as a family unit, raising both E.J. and Z.S. as co-parents.  Christina stayed home for the first year of Z.S.’s life, while Kimberly worked full time.  Christina testified that both children call her “mom.”  The women separated in January 2013.  Christina continued to visit both children and paid child support, medical and daycare expenses for Z.S.

Now things took a strange twist: On August 13, 2015, while still married to Christina (and at a time, due to the Obergefell decision, when Mississippi would be legally obligated to recognize the marriage is the issue came up in any legal context), Kimberly married a second spouse, whose name and gender are not identified in any of the judge’s opinions, although from the caption of the case it sounds like her new spouse’s surname is Day, since Kimberly is identified in the title of the case as Kimberly Jayroe Strickland Day.

This prompted Christina to file a divorce petition in Harrison County Chancery Court on August 31. On November 16, Kimberly filed a motion for a declaratory judgment that her second marriage was valid and her first marriage “dissolved” in Rankin County Circuit Court.  Christina answered that motion and counterclaimed for divorce and legal and physical custody of both children, who were then living with Kimberly.  She also sought to be named as Z.S.’s legal parent.  The two cases were consolidated in the Rankin County court.  On May 17, 2016, Judge Grant issued an order declaring that Christina and Kimberly’s 2009 Massachusetts marriage was valid and recognized in Mississippi, and therefore that Kimberly’s second marriage was void.

This led the women to negotiate a “consent and stipulation,” in which they agreed that Z.S. was born during their marriage, that they would jointly pay all school expenses for Z.S., and that Kimberly would retain physical and legal custody of E.J., the adoptive child.  They agreed to let the chancery court decide custody, visitation, and child support issues for Z.S., child support and visitation issues for E.J., and the issue of Christina’s parental status toward Z.S.

Judge Grant’s final judgment of divorce, entered on October 16, 2016, ordered Christina to pay child support for both children, and held that Z.S. was born during a valid marriage.  But, he ruled, Z.S. was “a child born during the marriage, but not of the marriage,” so both parties were not considered to be Z.S.’s parents.  The court considered the anonymous sperm donor to be “an absent father” whose legal parentage “precluded a determination that Christina was Z.S.’s legal parent.”  However, Judge Grant held that she was entitled to visitation with Z.S. under a doctrine called “in loco parentis,” which recognizes that somebody who has acted as a parent and bonded with a child as such could be entitled to visitation even though she has no legal relation to the child.

Christina appealed three days later.  At the heart of her argument was that because Z.S. was born while Christina was married to Kimberly, Christina should be deemed the child’s legal parent, and that the anonymous sperm donor, who had no relationship to the child, could not possibly be considered its legal parent.

The Mississippi Supreme Court was in agreement with Christina’s argument that the sperm donor is really out of the picture and should not be considered a parent.  Justice Ishee’s opinion, for himself and Justices Kitchens, King and Beam, declared that Judge Grant’s finding that the sperm donor was the child’s “natural father” was erroneous as a matter of law.  “At the outset,” he wrote, “we are cognizant of the fact that we never before have determined what parental rights, if any, anonymous sperm donors possess in the children conceived through the use of their sperm.  As such, this is an issue of first impression.”

That is a startling statement for a state Supreme Court to make in 2018, when donor insemination has been around for half a century and most states have adopted legislation on the subject.  But, wrote Justice Ishee, there is only one provision of Mississippi law relating to donor insemination, a statute providing that a father cannot seek to disestablish paternity when a child was conceived by “artificial insemination” during the marriage to the child’s mother.  That’s it.  However, wrote Ishee, “Reading this provision, in light of the context before us, the logical conclusion – while not explicit – is that the Legislature never intended for an anonymous sperm donor to have parental rights in a child conceived from his sperm – irrespective of the sex of the married couple that utilized his sperm to have that child.”

“How,” asked Ishee, “on the one hand, can the law contemplate that a donor is a legal parent who must have his rights terminated, while at the same time prohibiting the non-biological father of a child conceived through AI from disestablishing paternity?  These two policies cannot co-exist.”

Ishee rejected Kimberly’s argument that “all of the non-biological parents of children conceived through AI should be required to terminate the sperm donor’s parental rights and then establish parentage through the adoptive process.”  Ishee’s plurality (4 justices) rejected this process as “intrusive, time-consuming, and expensive,” including a ridiculous waste of time for a judge to have to determine that an anonymous sperm donor, who never intended to be the parent of the child, had “abandoned” the child, thus making the child available for adoption by its mother’s spouse.

When a father is “absent” at the time a child is born, the usual process is to try to locate the missing father and inform him of his obligations, but in the case of an anonymous donor, neither the mother nor the court has the necessary information.  In a case like this one, publishing such a notice in a newspaper – the standard way for courts to give notice to missing parties – makes no sense.

On appeal, Christina raised alternative arguments in support of her claims to be Z.S.’s parent.  First, she asked the court to determine a question not addressed by Mississippi statutes: “Whether children born to married parents who give birth to a child via A.R.T. with sperm from an anonymous donor are entitled to the marital presumption that both spouses are their legal parents.”  Alternatively, she asked “Whether the Supreme Court’s decision in Obergefell v. Hodges requires Mississippi to apply laws relating to the marital presumption of parentage in a gender-neutral manner so as to apply equally to married same-sex couples.”  As another alternative, she asked whether the doctrine of “equitable estoppel” could be used to preclude a birth mother from trying to “disestablish her spouse’s parentage of the couple’s marital child based solely on the absence of a genetic relationship, when the child was born as a result of anonymous donor insemination, to which both spouses consented.” Christina argued that Judge Grant’s order violated constitutionally protected liberty and equality interests by failing to recognize Christina’s parental relationship with Z.S.

Justice Ishee’s opinion ignored all of these arguments except “equitable estoppel,” a doctrine which he explained that Mississippi courts have defined “as the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed.”  Ishee concluded that the doctrine fits this case, and rejected Kimberly’s argument that the decision to have a child through donor insemination was solely hers and the fact that she was married to Christina at the time was irrelevant.  Ishee found that “the evidence in the record belies this assertion,” and cited chapter and verse, right down to the birth announcements the women sent out, which identified the women as “two chicks” who had “hatched” the child.

Since Kimberly represented to Christina all along that Christina would be a parent of Z.S., the doctrine of equitable estoppel blocks her from arguing to the contrary in the context of this divorce proceeding. Judge Grant’s award of “in loco parentis” status to Christina was insufficient, in Ishee’s view, to protect her legitimate interests.  For example, suppose Kimberly married somebody else and petitioned for her new spouse to adopt Z.S.  Christina’s “in loco parentis” status would not entitle her to prevent such an adoption. But if the court recognizes her as a parent, she could.

Thus, without ever mentioning the parental presumption, the plurality opinion, purporting to be speaking for the court as a whole because of the concurring opinions, reversed the chancery court’s ruling that Christina acted “in loco parentis” but “was not an equal parent with parental rights to Z.S.” They sent the case back to Rankin County Chancery Court to determine custody using the multifactorial test that is generally used in a custody contest between legal parents to determine what would be in the best interest of the child, with a “guardian ad litem” appointed to represent Z.S. in the proceedings.

Chief Justice William Waller, Jr., joined “in part” by Justices Randolph, Coleman, Maxwell and Chamberlin, “concurred in part and in the result.” “The narrow issue before the Court,” wrote Waller, “is whether two people legally married who jointly engage in a process of assisted reproduction technology resulting in the natural birth by the gestational mother are both considered parents for purposes of divorce and determination of parental rights of the minor child.  I conclude that they are and that the decision of the chancellor should be reversed and remanded.”  After briefly referring to equitable estoppel, he wrote, “While this Court can use common-law principles to render a decision here, the Legislature should speak directly to the recognition of the legal status of children born during a marriage as a result of assisted reproductive technology.”

Justice Josiah Coleman, concurring in part and dissenting in part, pointed out that the doctrine of “equitable estoppel” had not been argued to Judge Grant, so it should not be a basis for the court’s decision. Thus, he was only joining Judge Waller’s opinion to the extent that Waller agreed that the chancellor erred by according any parental status to the sperm donor.  He would remand the case to the trial court, having reversed that part of the holding, “to allow the parties to present whatever evidence and arguments they wished that accord with the Court’s holding.”  His opinion was joined “in part” by Justices Randolph and Maxwell.

Justice James Maxwell, also concurring in part and dissenting in part, insisted that “what parental rights a sperm donor may or may not have is a policy issue for the Legislature, not the Court,” and since there was no statute on point, “we should be extremely hesitant to draw conclusions about the disestablishment-of-paternity statute, when that statute is wholly inapplicable here. Indeed,” he argued, “it is dangerous for the plurality to weigh in so heavily with what it views to be the best policy, since we all agree the chancellor erroneously inserted this issue into the case.”  His opinion was joined “in part” by Justices Randolph and Coleman.

Finally, Justice Michael Randolph dissented, joined in part by Justices Coleman, Maxwell, and Chamberlin. Randolph said the court should never have addressed equitable estoppel, because that argument was presented for the first time on appeal.  Next, although he agreed that the chancellor erred in declaring an anonymous sperm donor to be the child’s “natural father,” he thought that the “plurality’s blanket assertion that in any case, no anonymous sperm donor will be accorded the burdens and benefits of natural fathers” went too far. He though there was a constitutional issue here, where no attempt had been made to identify and contact the sperm donor.  He also pointed out that the “disestablishment” statute cited by Justice Ishee and then used to support the plurality’s ruling “never was quoted or argued by either party at the trial level,” so also should not have been relied upon in any way by the Supreme Court.  He also found no basis in the record for setting aside the chancellor’s determination that it was “not in the best interest of either child for Christina to have custody.” He pointed out that the chancellor had neglected to address all of the factors specified by Mississippi courts on the record, so the correct approach would be to remand the case to the chancellor “to examine the record and the chancellor’s notes and issue a final decree consistent with this dissent.

This appears to be a victory for Christina, to the extent that enough members of the court agreed with the equitable estoppel approach to make that part of the holding of the court, tossing the case back to the trial court to decide anew whether it is in the best interest of Z.S. for Christina to have joint or primary custody of him as a parent. (Christina is not seeking custody of E.J., just visitation rights.)  But the fractured ruling falls short of the appropriate analysis that would be more beneficial for married LGBT couples in Mississippi: a straightforward acknowledgement that when a married lesbian couple has a child through donor insemination, both of the women will be presumed to be the legal parents of that child, without any need to make a factual showing required for the application of equitable estoppel should any dispute later arise about custody or visitation.  One wonders whether fear of political retribution may have motivate all nine justices to avoid mentioning the parental presumption or invoking Obergefell in support of its application in their various opinions.

Christina is represented by Mississippi attorney Dianne Herman Ellis and Lambda Legal staff attorney Elizabeth Lynn Littrell. Kimberly is represented by Prentiss M. Grant.

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Trump Administration Issues New Transgender Military Policy, Attempting To Sidetrack Lawsuits

In a move intended to evade existing preliminary injunctions while reaffirming in its essential elements President Trump’s Twitter announcement from last July categorically prohibiting military service by transgender individuals, the Administration issued three new documents on Friday afternoon, March 23, the date that the President had designated in an August 2017 Memorandum for his announced policy to take effect.  A new Presidential Memorandum “revoked” Trump’s August Memo and authorized the Defense and Homeland Security Secretaries to “implement any appropriate policies concerning military service by transgender individuals.”  At the same time, Department of Justice (DOJ) attorneys filed with the federal court in Seattle copies of Defense Secretary James Mattis’s Memorandum to the President and a Department of Defense (DOJ) working group’s “Report and Recommendations” that had been submitted to the White House on February 23, in which Mattis recommended a version of Trump’s transgender ban that would effectively preclude military service for many, perhaps most, transgender applicants and some of those already serving, although the number affected was not immediately clear.

 

Mattis’s recommendation drew a distinction between transgender status and the “medical condition” of gender dysphoria, as defined in the psychiatric diagnostic manual (DSM) generally cited as authoritative in litigation.  Mattis is willing to let transgender people enlist unless they have been diagnosed with gender dysphoria, which the Report characterizes, based heavily on subjective assertions rather than any evidence, as a condition presenting undue risks in a military environment.  Transgender people can enlist if they do not desire to transition and are willing to conform to all military requirements consistent with their biological sex as designated at birth.  Similarly, transgender people currently serving who have not been diagnosed with gender dysphoria can serve on the same basis: that they comply with all requirements for service members of their biological sex.  However, people with a gender dysphoria diagnosis are largely excluded from enlistment or retention, with some individual exceptions, although those currently serving who were diagnosed after the Obama Administration lifted the transgender ban on June 30, 2016, are “exempted” from these exclusions and may serve while transitioning and after transitioning consistent with their gender identity.  (This is pragmatically justified by the investment the military has made in their training, and is conditioned on their meeting all military performance requirement for those in their desired gender presentation.)  Under the recommended policy, Defense Department transition-related health coverage will continue to be available for this “grandfathered” group, but for no others.

 

The March 23 document release took place just days before attorneys from Lambda Legal and the DOJ were scheduled to appear on March 27 in U.S. District Judge Marsha Pechman’s Seattle federal courtroom to present arguments on Lambda’s motion for summary judgment in Karnoski v. Trump, one of the four pending legal challenges to the policy. Lambda’s motion, filed in January, was aimed at Trump’s July tweet and August Memorandum, although it anticipated that the Administration would attempt to come up with some sort of documents to fill the fatal gap identified by four federal district judges when they issued preliminary injunctions last fall: Trump’s unilateral actions were not based on any sort of “expert military judgment,” but rather on his short-term political need to win sufficient Republican votes in the House to pass a then-pending Defense Department spending measure.

 

Based on the obvious conclusion that Trump’s policy was not based on “expert military judgment,” the courts refused to accord it the usual deference that federal courts accord to military regulations and rules when they are challenged in court. Indeed, the only in-depth military study on the subject was that carried out over a period of years by the Obama Administration before it lifted the transgender service ban formally on June 30, 2016, while delaying implementation of new accession standards for transgender enlistees for a year. (Mattis later extended that deadline an additional six months to January 1, 2018.)  With no factual backup, Trump’s across-the-board ban was highly vulnerable to constitutional challenge in light of recent federal court rulings that gender identity discrimination is a form of sex discrimination.  Policies that discriminate because of sex are treated by courts as presumptively unconstitutional, putting the government to the burden of showing that they substantially advance an important government interest, and demanding “exceedingly persuasive” proof.  The “Report and Recommendations” filed in Judge Pechman’s court were clearly devised to attempt to fill that evidentiary gap, despite their disclaimer that the group assembled to study the issues and report their recommendations to Mattis and the President were tasked with an objective policy review.

 

The White House document dump ignited a host of questions. There was no clarity about when the “new” policies recommended by Mattis were intended to go into effect (their implementation would require rewriting and formal adoption in the form of regulations), and there were many questions about how transgender people currently serving would be affected.  Defense Department spokespersons said that the Pentagon would abide by federal law, which at present consists of the preliminary injunctions against the policies announced by Trump last summer, which were supposed to go into effect on March 23, 2018, if they had not been blocked by the courts.

 

Since the preliminary injunctions were all aimed at last summer’s tweets and August Memorandum, were they rendered moot by Trump’s revocation of those policy announcements? Or would the courts see the proposed new policy as essentially a continuation of what Trump had initiated, and thus covered by the preliminary injunctions?  The district judges had all denied requests by the government to stay these injunctions, and two courts of appeals had refused to stay those issued by the judges in Baltimore and Washington, D.C., leading DOJ to desist from seeking a stay of the Seattle and Riverside, California, injunctions.  Complying with those injunctions, the Pentagon allowed transgender people to begin applying to enlist in January, and announced that at least one transgender applicant had completed the enlistment process by February.  Arguably, the preliminary injunctions would apply to any policy of excluding transgender people from military service pending a final resolution of these cases, giving them a broad reading consistent with their analysis of the underlying issues.

 

In a signal of what was coming, DOJ attorneys stoutly combatted the plaintiffs’ demand in the Seattle case for disclosure of the identity of “generals and military experts” with whom Trump claimed in his July tweets to have consulted before announcing his categorical ban, arguing that after Mattis made his recommendation in February, DOJ would not be defending the policy announced in the summer but rather whatever new policy the President decided to announce, relying upon Mattis’ “expert military judgment” and whatever documentation was provided to support it. That led to a series of confrontations over the discovery demand, producing two written opinions by Judge Pechman ordering DOJ to come up with the requested information, and at last provoking a questionable claim of Executive Privilege protecting the identity of those consulted by Trump.  This waited to be resolved at the March 27 hearing as well.

 

The Administration’s strategic moves on March 23 appeared intended to change the field of battle in the pending lawsuits. When they were originally filed, they had a big fat target in Trump’s unilateral, unsupported actions.  By revoking his August Memorandum and “any other directive I may have made” (that is, the tweets from July), Trump sought to remove that target and replace it with a new, possibly more defensible one: a policy recommended and eventually adopted as “appropriate” by Mattis based on his “expert military judgment” in response to the recommendation of his study.  Clearly, the Administration was aiming to be able to rely on judicial deference to avoid having to defend the newly-announced policy on its constitutional merits.

 

The big lingering question is whether the courts will let them get away with this. The policy itself suffers from many of the same constitutional flaws as the one it replaces, but the “Report and Recommendations” – cobbled together in heavy reliance on the work of dedicated opponents to transgender military service – has at least the veneer and trappings of a serious policy review.  The plaintiffs in the existing lawsuit will now need to discredit it in the eyes of the courts, painting it as the litigation advocacy document that it obviously is.

 

Mark Joseph Stern, in a detailed dissection published in “Slate ” shortly after the document release, credited Administration sources with revealing that the process of producing the report had been taken over by Vice President Pence and Heritage Foundation personnel who have been producing articles opposing transgender rights in a variety of contexts. According to Stern’s report, Mattis was opposed to reinstating the transgender ban, but was overruled by the White House and is reacting as a soldier to the dictates of his Commander in Chief, unwilling to spend political capital on this issue.  Tellingly, the Report itself does not provide the names of any of those responsible for its actual composition, setting up a new discovery confrontation between the plaintiffs and DOJ.

 

Some are predicting that the new policy will never go into effect. If the courts refuse to be bamboozled by the façade of reasoned policy-making now presented by the Administration, those predictions may be correct.

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Trump Administration Defies Court Disclosure Order on Eve of Previously Announced Trans Military Policy Implementation Date

On August 25, 2017, President Donald J. Trump issued a Memorandum to the Secretaries of Defense and Homeland Security, directing that effective March 23, 2018, transgender people would not be allowed to serve in the military. The Memorandum charged Defense Secretary James Mattis with the task of submitting an implementation plan to the White House by February 21.  Mattis submitted something in writing on February 23, but its contents have not been made public.

Meanwhile, the Department of Justice (DOJ) filed a statement late on March 22 with Judge Marsha J. Pechman of the U.S. District Court in Seattle, Washington, essentially refusing to comply with her Order issued on March 20 to reveal the identity of the “generals” and other “military experts” whom Trump purportedly consulted before his Twitter announcement last July 26 that transgender people would not be allowed to serve in any capacity in the armed forces. Karnoski v. Trump, Case 2:17-cv-01297-MJP (Defendants’ Response to the Court’s March 20, 2018, Order, filed March 22, 2018), responding to Karnoski v. Trump, 2018 US. Dist. LEXIS 45696 (W.D. Wash. March 20, 2018).

Judge Pechman is presiding over a lawsuit filed last fall by Lambda Legal and Outserve-SLDN challenging the policy. Pechman denied DOJ’s motion to dismiss that case and granted a motion by the plaintiffs for a preliminary injunction against the policy going into effect.  In order to grant the injunction, the judge had to conclude that it was likely the policy would be found to be unconstitutional and that an injunction pending the outcome of the case was necessary to protect the legitimate interests of people who would be adversely affected by the policy.  Karnoski v. Trump, 2017 U.S. Dist. LEXIS 167232 (W.D. Wash. Oct. 10, 2017), motion to stay preliminary injunction denied, 2017 U.S. Dist. LEXIS 167232, 2017 WL 6311305 (W.D. Wash. Dec. 11, 2017); 2017 U.S. Dist. LEXIS 213420 (W.D. Wash. Dec. 29, 2017).

Then discovery in the case began, and DOJ refused in February to comply with the plaintiffs’ request for the identity of the “generals” and “experts” Trump claimed in his tweet to have consulted. DOJ argued that their defense in the case would not rely on any testimony or documentation from such individuals, since they would not be defending the August 25 policy announcement, but rather some new policy yet to be announced after Mattis submitted his recommendations.

Judge Pechman, ruling on a requested order to compel discovery filed by the plaintiffs, observed in an opinion issued on March 14 that “this case arises not out of any new or future policy that is in the process of being developed, but rather out of the current policy prohibiting military serve by openly transgender persons, announced on Twitter by President Trump on July 26, 2017, and formalized in an August 25, 2017 Presidential Memorandum.”  Karnoski v. Trump, 2018 U.S. Dist. LEXIS 43011 (W.D. Wash., March 14, 2018).

She continued, “Defendants cannot reasonably claim that there are no individuals likely to have discoverable information and no documents relevant to their claims and defenses regarding the current policy. President Trump’s own announcement states “after consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow . . . Transgender individuals to serve in any capacity in the U.S. Military.”

Judge Pechman asked, “Which Generals and military experts were consulted? Which Service Chiefs and Secretaries provided counsel?  What information did they review or rely upon in formulating the current policy?  Were the court to credit Defendants’ Initial Disclosures and Amended Disclosures, the answer to these questions apparently would be ‘none.’”  The judge gave DOJ five days to comply.

DOJ responded by seeking “clarification” and raising the prospect that the president could invoke “executive privilege” to refuse to comply with the discovery request, in order to protect the confidentiality of presidential deliberations.

Responding to this argument early on March 20, Pechman issued a new opinion, 2018 U.S. Dist. LEXIS 45696. She wrote, “The Court cannot rule on a ‘potential’ privilege, particularly where the allegedly privileged information is unidentified,” and pointed out that DOJ had not invoked executive privilege in its earlier incomplete responses to the plaintiffs’ discovery requests, or in any of their prior motions to the court.  She pointed out that under the Federal Rules of Civil Procedure, “in order to assert privilege, a party must ‘expressly make the claim’ and ‘describe the nature of the documents, communications, or tangible things not produced or disclosed – and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”

Furthermore, she noted, “While Defendants claim they do not intend to rely on information concerning President Trump’s deliberative process, their claim is belied by their ongoing defense of the current policy as one involving ‘the complex, subtle, and professional decisions as to the composition . . . of a military force . . .’ to which ‘considerable deference’ is owed.” Of course, claiming that the court should “defer” to “professional decisions” requires showing that this policy was adopted as a result of “professional decisions” and not based solely on the President’s political concerns.

The refusal to disclose what advice the president relied upon in announcing this policy leads to the inevitable conclusion either that such consultations did not take place, as Judge Pechman intimated on March 14, or if they did the president was likely acting against the advice of his generals and military experts.  Anybody reasonably informed on trends in the federal courts would have concluded by last summer that a revived ban on transgender service would be seriously vulnerable to constitutional challenge, and military commanders with a full year of experience in having openly transgender personnel would know that the policy implemented by the Obama Administration effective the beginning of July 2016 had not led to any problems with good order, morale, or substantial health care costs.

Judge Pechman gave DOJ until 5 p.m. Pacific Daylight Time on March 22 to comply with her discovery order. DOJ submitted its statement refusing to do so shortly before that deadline, once again arguing that because they did not intend to defend last summer’s policy pronouncements, they were standing on their position that they were not required to make any of the disclosures in dispute since they would not be calling any witnesses, documents or studies for the purpose of defending those policies.

As this is being written on March 23, there has been no indication by the White House that an implementation policy or a revised version of last summer’s policy is being announced. This is not surprising, since three other federal district judges as well as Judge Pechman issued preliminary injunctions last year against implementation of the policy that was to go into effect on March 23, and two federal courts of appeals (the D.C. Circuit and the 4th Circuit) rejected petitions by the Justice Department to stay two of the preliminary injunctions.

In fact, in light of the injunctions the Defense Department notified its recruitment staff in December about the criteria for enlistment of transgender applicants that would go into effect on January 1, 2018, and that process did go into effect, with a subsequent announcement by the Defense Department that at least one transgender applicant, whose name was not disclosed, had completed the enlistment process, marking the first time that an openly transgender individual has been allowed to enlist.

In a slippery move, DOJ may be trying to render the existing preliminary injunctions and lawsuits irrelevant by arguing that the policy announced in the August 25 Memorandum has never gone into effect and that, pursuant to Mattis’s undisclosed recommendations, it never will.  Meanwhile, thousands of transgender military personnel find their employment status in a state of uncertainty, as do transgender reserve members or military service academy students working towards graduating and joining the active forces.

Perhaps some hint of what the new policy will be can be found in the Defense Department’s enlistment policies announced in December, which would preclude enlisting transgender individuals unless they are medically certified to have been “stable” with respect to their gender identity for at least 18 months, and thus unlikely to seek to transition while in military service, either because they have already completely transitioned from the gender identified at birth to their currently identified gender or presumably have foresworn any intent to transition while in the military.

This disclosure controversy relates back to the likely motivation behind Trump’s initial July tweet, which came shortly after the Houses of Representatives had rejected an amendment to a pending Defense spending bill that would have blocked any spending for “sex reassignment surgery” for military personnel. There were reports at the time that congressional sponsors of that amendment warned the President that he did not have sufficient Republican votes in the House to pass the bill in the absence of such a provision.  Trump’s apparent solution to his immediate political problem was to bar all transgender military service, which would remove the possibility of any serving member seeking to access the military health care budget to pay for their transition, since such a request would lead to their immediate discharge under the policy he announced.  In other words, DOJ is attempting to bury the fact that Trump probably lied in his Tweet when he intimated that this change of policy was the result of recommendations from generals and military experts, but their stonewalling leads to Judge Pechman’s obvious conclusion stated on March 14.

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