New York Law School

Art Leonard Observations

Federal Trial Courts Divided Over Title VII Sexual Orientation Discrimination Claims

Last July the Equal Employment Opportunity Commission (EEOC), reversing its position dating back fifty years, issued a ruling that a gay man could charge a federal agency employer with sex discrimination in violation of Title VII of the Civil Rights Act of 1964 for denying a promotion because of his sexual orientation. The Baldwin v. Foxx decision is an administrative ruling, not binding on federal courts, and federal trial judges are sharply divided on the issue.

During May and June, federal district judges in Virginia, New York, Illinois, Mississippi and Florida issued rulings in response to employers’ motions to dismiss Title VII claims of sexual orientation discrimination.  In each case, the employer argued that the plaintiff’s Title VII claim had to be dismissed as a matter of law because the federal employment discrimination statute does not forbid sexual orientation discrimination.

Title VII was enacted as part of the Civil Rights Act of 1964. Although the House committee considering the bill took evidence about sex discrimination, it decided to send the bill to the House floor without including “sex” as a prohibited basis for discrimination, because this was deemed  too controversial and might sink the bill. During the floor debate, however, a southern representative, Howard Smith of Virginia, a conservative Democrat who was opposed to the proposed ban on race discrimination, proposed an amendment to add “sex” to the list of prohibited grounds.  Most historical accounts suggest that Smith’s strategy was to make the bill more controversial, thus ensuring its defeat.  More recent accounts have suggested that Smith, although a racist, was actually a supporter of equal rights for women and genuinely believed that sex discrimination in the workplace should be banned.  (His amendment did not add “sex” to the other titles of the bill addressing other kinds of discrimination.)  The amendment passed, and ultimately the bill was enacted, going into effect in July 1965.

Because “sex” was added through a House floor amendment, the Committee Report on the bill says nothing about it, and the subsequent debate in the Senate (where the bill went directly to the floor, bypassing committee consideration) devoted little attention to it, apart from an amendment providing that pay practices “authorized” by the Equal Pay Act of 1963 would not be outlawed by Title VII. As a result, the “legislative history” of Title VII provides no explanation about what Congress intended by including “sex” as a prohibited ground of discrimination.

During the first quarter century of Title VII, the EEOC and the federal courts consistently rejected claims that the law outlawed sexual orientation discrimination. In the absence of explanatory legislative history, they ruled that Congress must have intended simply  to prohibit discrimination against women because they are women or against men because they are men, and nothing more complicated or nuanced than that.  This interpretation was challenged in 1989, when the Supreme Court ruled in Price Waterhouse v. Hopkins that a woman who failed to conform to her employer’s sex stereotypes could bring a sex discrimination case under Title VII, adopting a broader and more sophisticated view of sex discrimination.

Since 1989, some lower federal courts have used the Price Waterhouse ruling to allow gay or transgender plaintiffs to assert sex discrimination claims in reliance on the sex stereotype theory, while others have rejected attempt to “bootstrap” sexual orientation or gender identity into Title VII in this way.   More recently, several federal appeals courts have endorsed the idea that gender identity discrimination claims are really sex discrimination claims, and a consensus to that effect has begun to emerge, but progress has been slower on the sexual orientation front.

Last summer the EEOC’s decision in Baldwin v. Foxx presented a startling turnabout of the agency’s view. The EEOC does not adjudicate discrimination claims against non-governmental and state employers, but it is assigned an appellate role concerning discrimination claims by federal employees.  In Baldwin v. Foxx, the EEOC reversed a ruling by the Transportation Department that a gay air traffic controller could not bring a sexual orientation discrimination claim under Title VII.  Looking at the developing federal case law since Price Waterhouse and seizing upon a handful of federal district court decisions that had allowed gay plaintiffs to bring sex discrimination claims under a sex stereotype theory, the agency concluded that a sexual orientation discrimination claim is “necessarily” a sex discrimination claim and should be allowed under Title VII.

Since that July 15 ruling, many federal district judges have had to rule on motions by employers to dismiss Title VII sexual orientation discrimination claims. The precedential hierarchy of the federal court system has required some of them to dismiss those claims because the circuit court of appeals to which their rulings could be appealed had previously ruled adversely on the issue.  In other circuits, however, the question is open and some judges have taken the EEOC’s lead.

On May 5, U.S. District Judge Robert E. Payne in Virginia found that he was bound by 4th Circuit precedent to reject a sexual orientation discrimination claim under Title VII, even though the plaintiff, an openly-gay administrative assistant at Virginia Union University, had alleged clear evidence of anti-gay discrimination by the university president.  Judge Payne found that a 1996 decision by the 4th Circuit, Wrightson v. Pizza Hut of America, was still binding.  Payne noted that other federal trial courts were divided about whether to defer to the EEOC’s Baldwin ruling, but in any event he felt bound by circuit precedent to dismiss the claim.

A district judge on Long Island, Sandra J. Feuerstein, reached a similar result in Magnusson v. County of Suffolk on May 17, dismissing a Title VII claim by an openly-lesbian custodial worker at the Suffolk County Department of Public Works, who alleged that her failure to comply with her supervisors’ stereotypes of how women should dress had led to discrimination against her. Relying on prior decisions by the New York City-based 2nd Circuit Court of Appeals, Judge Feuerstein refrained from discussing more recent developments and dismissed the claim, asserting that the plaintiff’s “claims regarding incidents of harassment based on her sexual orientation do not give rise to Title VII liability.”

However, on May 31, a senior district judge in Illinois decided that prudence in light of the developing situation counseled against dismissing a pending “perceived sexual orientation” claim in the case of Matavka v. Board of Education. Judge Milton I. Shadur confronted the school district’s motion to dismiss a discrimination claim by  an employee at J. Sterling Morton High School, who alleged that “he experienced severe harassment from his coworkers and supervisors, including taunts that he was ‘gay’ and should ‘suck it,’ frequent jokes about his perceived homosexuality, and hacking of his Facebook account to identify him publicly as ‘interested in boys and men’, and an email stating ‘U. . . are homosexual.’”  Judge Shadur observed that the Chicago-based 7th Circuit Court of Appeals had in the past rejected sexual orientation discrimination claims under Title VII, which “would appear to bury” Matavka’s Title VII claim.  But, he noted, Baldwin v. Foxx, while not binding on the court, may prompt a rethinking of this issue, and that the 7th Circuit heard oral argument on September 30 of a plaintiff’s appeal from a different federal trial judge’s dismissal of a sexual orientation discrimination claim in the case of Hively v. Ivy Tech Community College.  “Should Hively follow recent district court decisions in finding Baldwin persuasive,” he wrote, “that finding plainly would affect the disposition of Morton High’s motion.  That being so, the prudent course at present is to stay this matter pending the issuance of a decision in Hively.”

The 7th Circuit has not issued a decision in Hively as of this writing.  Judge Shadur stayed a ruling on the motion until July 29, and said that if the 7th Circuit had not issued a ruling by then, he might stay it further.

The federal appeals courts are not bound by any rules about how soon after oral argument they must issue opinions. Sometimes the 7th Circuit moves quickly.  During 2014 it took just a week after the August 26 oral argument to rule affirmatively on a marriage equality case on September 4, giving the states of Wisconsin and Indiana time to petition the Supreme Court for review before the start of the Court’s October term.  The panel that heard the Hively argument has not ruled in more than eight months, suggesting that an extended internal discussion may be happening among the nine active judges of the 7th Circuit, to whom the panel’s proposed opinion would be circulated before it is released.  Panels may not depart from circuit precedent, but a majority of the active judges on the circuit can overrule their past decisions.  A 7th Circuit ruling reversing the district court’s dismissal of the Hively complaint would be a major breakthrough for Title VII coverage of sexual orientation claims.

Meanwhile, two decisions issued in June have taken opposite views on the question. In Brown v. Subway Sandwich Shop of Laurel, U.S. District Judge Keith Starrett of the Southern District of Mississippi bowed to prior 5th Circuit rulings rejecting sexual orientation claims under Title VII, and he even claimed, somewhat disingenuously, that the EEOC’s Baldwin decision did not support the plaintiff’s claim, stating that Baldwin “takes no position on the merits of the claim and resolves only timeliness and jurisdictional issues.”  While this may appear to be technically true, since the EEOC was ruling on an appeal from the Transportation Department’s dismissal of the claim and not ultimately on the merits, on the other hand the EEOC definitely did take a “position” on the question whether sexual orientation discrimination claims are covered by Title VII; it had to address this question in order to determine that it had jurisdiction over the claim.  The EEOC clearly stated in Baldwin that sexual orientation discrimination claims are “necessarily” sex discrimination claims.

By contrast, U.S. District Judge Mark E. Walker of the Northern District of Florida, finding that the 11th Circuit Court of Appeals has not issued a precedential ruling on the question, refused to dismiss a “perceived sexual orientation” discrimination claim in Winstead v. Lafayette County Board of County Commissioners on June 20.  Pointing out that the 11th Circuit had ruled in 2011 in Glenn v. Brumby that a gender identity discrimination claim could be considered a sex discrimination claim under the Equal Protection Clause using a sex stereotyping theory, Judge Walker found that the Baldwin ruling, which also discussed sex stereotyping as a basis for a sexual orientation claim, was persuasive and should be followed.

Judge Walker rejected the argument made by some courts that using the stereotyping theory for this purpose was inappropriately “bootstrapping” claims of sexual orientation discrimination under Title VII. “These arguments seem to this Court to misapprehend the nature of animus towards people based on their sexual orientation, actual or perceived,” he wrote.  “Such animus, whatever its origin, is at its core based on disapproval of certain behaviors (real or assumed) and tendencies towards behaviors, and those behaviors are disapproved of precisely because they are deemed to be ‘inappropriate’ for members of a certain sex or gender.”

He concluded: “This view – that discrimination on the basis of sexual orientation is necessarily discrimination based on gender or sex stereotypes, and is therefore sex discrimination – is persuasive to this Court, as it has been to numerous other courts and the EEOC.” He also contended that it “follows naturally from (though it is not compelled by) Brumby, which is binding Eleventh Circuit precedent.  Simply put, to treat someone differently based on her attraction to women is necessary to treat that person differently because of her failure to conform to gender or sex stereotypes, which is, in turn, necessarily discrimination on the basis of sex.”

Ironically, Judge Walker turned to an opinion written by the late Justice Antonin Scalia, an outspoken opponent of LGBT rights, to seal the deal. He quoted from Scalia’s opinion for the Supreme Court in Oncale v. Sundowner Offshore Services, a 1998 decision that same-sex harassment cases could be brought under Title VII.  “No one doubts,” wrote Judge Walker, “that discrimination against people based on their sexual orientation was not ‘the principal evil Congress was concerned with when it enacted Title VII,’” quoting Scalia, and continuing the quote,  “’But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.’”  Scalia was opposed to relying on “legislative history” to determine the meaning of statutes, instead insisting on focusing on the statutory language and giving words their “usual” meanings.

Judge Walker concluded that his decision not to dismiss the Title VII claim “does not require judicial activism or tortured statutory construction. It requires close attention to the text of Title VII, common sense, and an understanding that ‘in forbidding employers to discrimination against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes,’” a quote from a 1971 court of appeals ruling that had been cited by the Supreme Court.

Judge Walker’s decision provides the most extended district court discussion of the merits of allowing sexual orientation discrimination claims under Title VII, but it will not be the last word, as the EEOC pushes forward with its affirmative agenda to litigate this issue in as many federal courts around the country as possible, building to a potential Supreme Court ruling. So far, the Supreme Court has refused to get involved with the ongoing debate about whether sexual orientation or gender identity discrimination claims are covered under Title VII.  It refused to review the 11th Circuit’s decision in Glenn v. Brumby.  But it can’t put things off much longer.  An affirmative 7th Circuit ruling in Hively would create the kind of “circuit split” that usually prompts the Supreme Court to agree to review a case.  That may not be long in coming.

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The current status of transgender legal rights in the U.S.

I was invited by Rabbi Sharon Kleinbaum to give a talk at Friday night services at Congregation Beit Simchat Torah on June 3 about the current status of transgender rights in the U.S.  CBST observes Gay Pride Month with a series of guest speakers on Friday nights, and the first Friday of the month was designated as “Trans Pride Shabbat” this year.  Below is a revised version of the text I prepared for that talk, although on Friday night I left this text in my folder and spoke extemporaneously.

This month we mark the anniversary of a major victory for transgender rights in the U.S. which has generally been overlooked. There was much celebration last June 26 when the Supreme Court ruled in Obergefell v. Hodges that same-sex couples were entitled to marry and to have our marriages recognized by state and local governments under the 14th Amendment .  What few mentioned in those celebrations was that this decision implicitly overruled some terrible state court rulings from around the country holding that marriages involving transgender people were invalid under the state bans on same-sex marriage.  By removing any gender requirements for marriage, the Supreme Court was not only opening up marriage nationwide for same-sex couples, it was also making it possible for transgender people to marry the partners they love regardless of their sex, sexual orientation, or gender identity.  This would also cancel out any argument that a married person who was transitioning was no longer validly married or should be required to divorce their spouse. However, since every state now has no-fault divorce, of course if such a transition takes place and the couple decides to end their marriage, there would be no impediment under state law to their doing so.

Let’s consider the current legislative status of transgender rights protections in the U.S. As of today, 17 states expressly prohibit discrimination based on gender identity in employment, housing and public accommodations (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, as well as the District of Columbia and Puerto Rico).  Massachusetts prohibits gender identity discrimination in employment and housing, and the legislature is working on adding public accommodations, with the likely approval of the governor.  Most of these laws have specific exemptions for religious institutions, and some of the states also have Religious Freedom statutes that might be interpreted to provide exemptions for businesses whose owners have religious objections, but the question of such exemptions for businesses is not really settled and heavily argued.

Three states prohibit sexual orientation discrimination by statute but not yet gender identity discrimination: New Hampshire, New York and Wisconsin. In New York, however, the State Division of Human Rights earlier this year published a regulation stating that it interprets the New York Human Rights Law ban on sex discrimination to include discrimination because of gender identity, and the ban on disability discrimination to cover gender dysphoria, thus providing protecting to individuals who have not yet finished transitioning to the gender with which they identify.  That interpretation has not yet been tested in the courts, but it is consistent with some unfolding federal law developments and  also some older decisions by New York trial courts.

In addition, many states have now included specific protection on the basis of gender identity under their Hate Crimes statutes, which authorize enhanced penalties against people who perpetrate violent crimes against people because of their transgender identity. Also, many cities, towns, villages and counties around the country have passed local laws banning gender identity discrimination.  In states that lack such laws, many of the large cities have passed them, although there is a disturbing new trend in some of those states for the state legislatures to pass laws prohibiting localities from going beyond the provisions of the state civil rights laws.  Lawsuits are challenging these limitations.

At the federal level, two statutes, the Matthew Shepard – James Byrd Jr. Hate Crime Prevention Act and the Violence against Women Act, provide for enhanced penalties for those who commit crimes of physical violence against people because of their gender identity, but only when there is some connection to interstate activity.   The interstate activity requirement relates to Congress’s limited power to pass criminal statutes because Article I of the Constitution does not list criminal laws, so federal criminal statues are normally based on Congress’s power to regulate commerce between the states or to enforce other provisions of the Constitution.  In states that do not provide gender identity protection under their hate crimes laws, state prosecutors can refer cases to the US Justice Department, which may prosecute after determining that the crime implicates interstate commerce.  For example, if the weapon used to commit the crime had moved across state lines, or if the crime (such as kidnaping) involved transportation on an interstate highway, the federal Hate Crimes law could come into play.

Congress has not yet approved the Equality Act, which was introduced last year to amend all federal civil rights statutes to list gender identity and sexual orientation as prohibited grounds of discrimination. This would provide protection in the areas of employment, housing, public accommodations, credit, educational institutions, and all programs that receive federal financial assistance or are operated by federal contractors, and would also cover state government employment and federal employment.  The bill enjoys wide co-sponsorship among Democratic members of both houses, but has only a handful of Republican co-sponsors, and the Republican leadership in both houses has denied committee hearings or votes on the bill, so it cannot be passed unless there is a significant change in the political balance of Congress or in the views of the Republican Party.

The Obama Administration adopted executive orders last year that prohibit federal executive branch agencies and federal contractors from discriminating in employment or provision of services because of gender identity or sexual orientation. These orders are enforced administratively within the executive agencies, not in federal courts.  However, there has been recent activity in Congress placing the federal contractor protections into question.  An impasse between Republicans and Democrats has led to a stalemate over adoption of important pending spending bills and has generated substantial debate on the floor of the House of Representatives, because there are enough Republicans who will vote in favor of this protection (which essentially incorporates the terms of the President’s executive order into legislation) to add it to the pending bills as amendments, but then not enough votes from the Republican majority in the House to pass the resulting amended bills, which are generally opposed by the Democrats because they provide insufficient funding for federal agencies or place objectionable restrictions on the agencies’ actions.  This curious situation has brought the legislative authorization process to a temporary halt, and looms as a potential crisis as we move through this hotly contested congressional election cycle.

There are areas where there is much contention now in legislatures and the courts over transgender discrimination claims asserted under existing sex discrimination laws.   Is it possible that gender identity discrimination is already illegal, even when it is not mentioned as a prohibited ground of discrimination?  This is the hot issue of the day that may reach the Supreme Court next term.

In 1964, Congress considered a Civil Rights Act that was mainly intended to ban race and religious discrimination in employment and public services. However, the employment provision, Title VII, was amended in the House of Representatives to add “sex” as a prohibited ground of employment discrimination.  The term “sex” was not defined in the statute, and historical accounts show that the amendment was introduced by a Conservative Virginia representative, possibly as part of a strategy to keep the bill from being passed.  When Title VII went into effect in July 1965, some attempts were made to bring discrimination claims on behalf of gay and transgender people, but they were rejected by the Equal Employment Opportunity Commission (EEOC), the agency in charge of enforcement of Title VII, and in early decisions by the federal courts.

In 1972, Congress enacted Title IX of the Education Amendments Act, which forbids sex discrimination by educational institutions that receive federal funding. The U.S. Department of Education and courts interpreting Title IX have generally followed the interpretation of “sex” under Title VII.  In early cases they refused to use this statute to protect gay and transgender people from discrimination.  Other federal statutes addressing sex discrimination, including the Fair Housing Act and the Equal Credit Opportunity Act, also received narrow interpretations of their sex discrimination provisions.

In 1990, Congress passed the Americans with Disabilities Act. Some opponents of that bill complained that it might be hijacked by sexual minorities claiming that homosexuality or transsexuality could be deemed disabilities.  Republican Senator Jesse Helms from North Carolina obtained an amendment specifically stating that homosexuality  and “transsexualism” would not be considered disabilities for purposes of protection under this statute.

Interpretation of federal sex discrimination laws began to change after 1989, when the Supreme Court decided an important Title VII case, Price Waterhouse v. Hopkins. Ann Hopkins was denied a partnership at a national accounting firm because some of the partners thought she was not adequately feminine in her appearance and conduct.  One said she needed “a course in charm school,” and the head of her office told her she should wear make-up and jewelry and walk, talk and dress more femininely if she wanted to be a partner.  The Supreme Court said that this kind of sexual stereotype was evidence of a discriminatory motive under Title VII, and stated that Congress intended to knock down all such barriers to advancement of women in the workplace, signaling a broad interpretation of sex discrimination.

Over the following two decades, lower federal courts have used the Price Waterhouse decision to adopt a broader interpretation of “sex” under Title VII and other federal sex discrimination provisions. By early in this century federal appeals courts started to extend protection to transgender plaintiffs on the theory that they were suffering discrimination because they failed to conform to sex stereotypes.  Federal circuit and district courts in many different parts of the country have now found gender identity protection in cases under the Violence against Women Act, the Equal Credit Opportunity Act, and Title VII of the Civil Rights Act.  In an important breakthrough, the Atlanta-based U.S. Court of Appeals for the 11th Circuit ruled that discrimination against a transgender state employee violated the Equal Protection Clause of the 14th Amendment, finding that the same standard used for sex discrimination claims should be applied to gender identity claims.

One of the key factors advancing this broad interpretation of sex discrimination was President Obama’s appointment of Chai Feldblum, then a law professor at Georgetown University, to be a commissioner at the EEOC during his first term. (She is now serving a second term at the EEOC.)  Commissioner Feldblum, the first openly lesbian or gay EEOC commissioner, argued effectively that the agency should adopt a broad interpretation of “sex” and apply it to discrimination claims by federal employees.  In three important rulings over the last few years, the EEOC held first that gender identity discrimination claims may be brought under Title VII, then that sexual orientation discrimination claims could also be brought under Title VII, and late last year that Title VII requirs federal agencies to allow transgender employees to use workplace restrooms consistent with their gender identity.  Building on these rulings as well as the growing body of federal court rulings, the Justice Department, the Department of Education, and other federal agencies with civil rights enforcement responsibility, have also begun to interpret their statutory sex discrimination laws more broadly.

The EEOC was ruling on internal discrimination claims within the federal government, but the agency has also undertaken an affirmative litigation strategy, filing briefs in cases pending in federal court brought by private litigants against non-governmental employers. In addition, the EEOC has filed its own gender identity and sexual orientation discrimination lawsuits in federal courts on behalf of individuals who filed charges against employers with that agency.

The Department of Education and the Justice Department have become involved in several cases brought by transgender high school students under Title IX, seeking access to restrooms consistent with their gender identity.

In a case that drew national attention last year, the Education and Justice Departments represented a transgender high school student in Illinois who was denied appropriate bathroom access and negotiated a settlement with the school district affirming the student’s rights. That attracted a federal court lawsuit against the government by Alliance Defending Freedom, a right-wing litigation group representing some objecting parents and students.  The lawsuit claims that Title IX does not apply to this situation and that their children’s “fundamental right of bodily privacy” was violated by the terms of the settlement.  It also claims that the Education and Justice Departments did not have authority to adopt this new interpretation of the law without proposing a formal regulation under the procedures established by the Administrative Procedure Act, which include a right of any interested member of the public to challenge a new regulation directly in the federal appeals courts.

This issue burst into wider public discussion when the city of Charlotte, North Carolina, passed an ordinance forbidding sexual orientation and gender identity discrimination, and made clear that transgender people in Charlotte would be allowed to use public and workplace restrooms consistent with their gender identity. The ordinance was set to take effect on April 1, 2016.  This stirred up a storm in the North Carolina legislature, which held a special session late in March to pass H.B. 2, a measure that preempted local anti-discrimination laws and provided that in government-operated buildings the restrooms would be strictly segregated by biological sex, meaning, for example, that a person can’t use a women’s restroom unless their birth certificate indicates that they are female.  This would apply to public colleges, universities and schools at all levels and in all other government buildings.

The main focus of debate was Republican legislators’ argument that allowing transgender women to use women’s restrooms would present a danger to women and children of possible sexual assault by heterosexual men declaring themselves to be transgender in order to gain improper access. The argument is patently ridiculous.  Seventeen states prohibit gender identity discrimination in public facilities, as do several hundred local jurisdictions, but there are no reports that these laws have enabled male sexual predators to gain access to women’s restrooms, and existing criminal laws against public lewdness and sexual assault can easily be used to prosecute such individuals.  In a alternative argument, the opponents of transgender restroom access are now pushing the theory argued in the new Illinois lawsuit: that allowing transgender people into restrooms consistent with their gender identity threatens the “right of bodily privacy” of other users to avoid exposing themselves to the view of transgender people.  Those making this argument reject the proposition that a transgender woman is genuinely a woman and a transgender man is genuinely a man, and argue that there is a tradition of sheltering people in restrooms from the gaze of members of the opposite sex.

A similar rejection of the reality of transgender identity can be found in a law recently passed by the state of Mississippi, which specifically authorizes people whose religious belief rejects transgender identity to refuse to treat transgender people consistent with their gender identity, including in places of business when it comes to things like restroom access. This reverts back to the views that used to be expressed by courts during the 20th century, rejecting the idea of gender transition and insisting that gender must be defined solely by a determination made at someone’s birth and entered on their birth certificate.

North Carolina’s H.B. 2 and the Mississippi law are now both the subject of multiple federal law suits disputing the bodily privacy argument and forcing courts to confront the question whether discrimination against transgender people violates the 14th Amendment of the Constitution, Title IX and Title VII.  While this dispute was pending, the Obama Administration threatened North Carolina with enforcement action under Title VII and Title IX, and distributed a letter in May to educational administrators nationwide advising them of the requirement to respect the rights of transgender students and staff under Title IX.  The administration’s action attracted new lawsuits, including one filed by the State of Texas on behalf of itself and a dozen other states challenging the administration’s interpretation of Title IX.

Meanwhile, during April the Richmond-based U.S. Court of Appeals for the 4th Circuit, ruling in a high school restroom case brought by a transgender boy under Title IX, held that the federal district court should defer to the Education Department’s interpretation of that statute, reversed the district court’s dismissal order, and sent the case back to the district court for further proceedings.  At the end of May, the full bench of the 4th Circuit rejected the School District’s petition for reconsideration of the case, and on June 7 the school district filed a notice with the 4th Circuit that it plans to petition the U.S. Supreme Court to review the decision.   This will probably result in a “stay” of the 4th Circuit’s ruling, which will delay further consideration by the district court of the plaintiff’s request for a preliminary injunction so that he can access the boys’ restroom facilities at his high school when classes resume in the fall.

Although legal commentators have suggested that it is unlikely the Supreme Court will agree to hear this case, it is at least possible. The notice the School Board filed focuses on two arguments: that the district court should not defer to the Education Department’s interpretation of Title IX, and that giving transgender students the restroom access they desire violates the “bodily privacy rights” of other students.  The first argument would require the Supreme Court to overrule a precedent that has been strongly criticized by the Court’s most conservative justices.  The second would require the Court to broaden the right of privacy under the Due Process Clause to encompass a right not to share restroom facilities with transgender people.

We should begin to see decisions in many of the pending lawsuits in the months ahead. One of the complications facing us now in getting a resolution to this controversy is that the Supreme Court is operating with only 8 members since the death of Justice Scalia in February.  Senate Republicans have refused to hold hearings and vote on President Obama’s nominee for the seat, Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.  This vacancy may lead the Supreme Court to avoid taking for review controversial cases as to which it is likely to be sharply divided, such as the case from Virginia involving the transgender student’s discrimination claim under Title IX.  The court of appeals decision in that case was 2-1. The dissenting judge urged the school district to seek review from the Supreme Court.  Although there might be some delays in getting this issue to the Supreme, it appears likely that the next big LGBT rights case to go to that Court will focus on whether gender identity discrimination is a form of “sex” discrimination that can be challenged under existing sex discrimination statutes and the Equal Protection Clause of the 14th Amendment.

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Retroactivity of Marriage Rights Continues to Occupy Courts

In two recent decisions courts have had to deal with the question whether marriage rights for same-sex couples, declared by the U.S. Supreme Court on June 26, 2015, should be projected backwards in time in particular cases involving the death of gay men and the rights of their surviving partners. In one, the surviving partner received the spousal benefit he sought, proceeds from a wrongful death lawsuit, although the court ended up not ruling directly on the retroactivity claim.  In the other, the surviving partner was unsuccessful because his partner died seven months after same-sex marriage became available in their state, New Jersey, but just days before they were scheduled to marry.

First, the hard-luck timing story from New Jersey: Rucksapol Jiwungkul and Maurice R. Connolly, Jr., began their relationship in 1983 and it continued until Connolly’s death on June 2, 2014.  On July 10, 2004, the date that New Jersey’s Domestic Partnership Law went into effect, the men registered as domestic partners.  At that time a lawsuit was pending in the New Jersey courts seeking marriage equality, but the plaintiffs in that case had suffered an initial setback before the Superior Court and the case was on appeal.

On October 25, 2006, the New Jersey Supreme Court ruled in Lewis v. Harris that same-sex couples were entitled to have some form of legal recognition from the state that would provide all the rights and benefits of marriage, but that the state could meet this constitutional requirement by enacting a civil union law if the legislature was not inclined to simply amend the marriage law to let same-sex couples marry. The legislature took the civil union route, and that statute went into effect on February 19, 2007.

Jiwungkul and Connolly decided not to register as civil union partners, and they were very public about their decision. Connolly was quoted in an article in The Philadelphia Inquirer on December 8, 2006, shortly after the legislature passed the Civil Union Law, describing himself as “furious” that the legislature did not opt for marriage, and explaining that they decided not to enter into a civil union because it “was not equivalent to marriage.”

After the U.S. Supreme Court ruled on June 26, 2013, in United States v. Windsor, that the Defense of Marriage Act was unconstitutional, a lawsuit previously filed by Garden State Equality seeking to reopen the marriage equality question in New Jersey suddenly sprang to life. Within months the court had ruled that in light of Windsor, same-sex couples in New Jersey should be entitled to marry. When the New Jersey Supreme Court upheld the trial judge’s refusal to stay her ruling, Governor Chris Christie dropped the state’s appeal and the ruling went into effect on October 21, 2013.

Jiwungkul and Connolly sprang into action, starting to make arrangement for a June wedding. In anticipation of the wedding, they applied for a marriage license on May 27, 2014.  Their application stated that the wedding would take place on June 8, and the license was issued.  Tragically, Connolly died suddenly and unexpectedly on June 2, leaving Jiwungkul as his surviving domestic partner and executor and principal beneficiary of his estate.

Connolly’s bequests to Jiwungkul were not subject to the New Jersey transfer inheritance tax, because the Domestic Partnership Law specifically exempts surviving domestic partners from having to pay a tax on an inheritance from their domestic partner. But Connolly’s estate was required to pay New Jersey estate tax of $101,041.00.  Jiwungkul filed the appropriate estate tax return but then filed an amended return claiming the spousal deduction, requesting a refund of the entire $101,041.00.

The New Jersey Department of Taxation rejected his refund claim, pointing out that the Domestic Partnership Law did not provide the marital deduction for estate tax purposes for domestic partners. Had the men registered for a state civil union, the marital deduction would have been available, since the New Jersey Supreme Court’s decision in Lewis v. Harris required that state civil unions provide the same rights as marriage.  And, of course, had the men married promptly after the Garden State Equality decision went into effect, as many N.J. domestic partners and civil union partners did, Jiwungkul would have been a surviving spouse, so the estate could claim the spousal deduction, which would have wipe out any obligation to pay state estate tax.

Jiwungkul filed suit in the New Jersey Tax Court, challenging the denial of his refund, claiming that as a result of the developments in judicial decisions, it would be appropriate to treat him as a surviving spouse and allow the marital deduction to the estate. The Presiding Judge of the Tax Court, Patrick DeAlmeida, denied his claim.  Jiwungkul v. Director, Division of Taxation, 2016 N.J. Tax Unpub. LEXIS 28 (May 11, 2016).

DeAlmeida pointed out that the men could have entered into a Civil Union, qualifying their estates for the spousal deduction, as early as February 2007, but they made a conscious choice not to do so. Furthermore, they could have married beginning on October 21, 2013.  “There is longstanding policy in this State,” he wrote, “of not according statutory rights to couples who have not fulfilled the statutory requirements for a government-sanctioned relationship.  He rejected the argument that because the right to marry has the status of a constitutional right, the Domestic Partnership Law of 2004 should be retroactively interpreted to provide the spousal deduction for estates of same-sex partners whose only legally recognized status at the time of death was being domestic partners.

This couple, however, delayed marrying. “They are, of course, free to order their affairs in any manner they see fit,” wrote the judge.  “They must, however, accept the legal consequences, including the ramifications of the tax laws, of their decisions.  Had they entered into a civil union during the many years it was available to them, or married sooner after the decision in Garden State Equality, decedent’s unexpected passing would not have resulted in the tax liability contested in this case.  Plaintiff and decedent suffered from a tragic turn of events, the tax consequences of which could have been avoided.”

This ruling can be appealed to the Appellate Division of the Superior Court. Jiwungkul, as executor of Connolly’s estate, is represented by Robyne D. LaGrotta of Parsippany.

The other case, from Alabama, turned out more favorably for the surviving partner. Paul Hard and David Fancher, Alabama residents, went to Massachusetts to marry on May 20, 2011.  At the time, Alabama did not recognize their marriage. Shortly after they returned home, Fancher died when the car he was driving on the interstate collided with a United Parcel Service Tractor Trailor.  Because Alabama did not recognize the marriage, the death certificate stated that he was “never married” and Hard was not listed as his surviving spouse.  The court appointed an administrator for Fancher’s estate, who filed a wrongful death lawsuit against United Parcel.  Under Alabama law, estates have to distribute the proceeds from wrongful death actions to the legal heirs of the decedent, according to the intestate succession statute.  If a person is survived by a spouse but no children, but there is at least one surviving parent, the surviving spouse receives the first $100,000 plus one half of the balance, the other half of the balance going to surviving parents.  If there is no surviving spouse but there are surviving parents, the proceeds go to the surviving parents.  Fancher was survived by his mother, Pat Fancher.

While the wrongful death case was pending, Hard filed a lawsuit against Alabama officials and the administrator of Fancher’s estate. He sought three things: a declaration that Alabama’s refusal to recognize his marriage to Fancher violated the constitution, an injunction requiring Alabama to issue a new death certificate taking account of the marriage, and an injunction ordering the estate to distribute to him the spousal share of any recovering in the wrongful death suit.  Pat Fancher filed a motion to intervene in the case, arguing that she was entitled to the full proceeds of any wrongful death action because Alabama did not recognizing the marriage so there was no “surviving spouse” as far as Alabama was concerned.  Chief U.S. District Judge William Keith Watkins let her intervene.  The administrator of Fancher’s estate agreed to set aside the spousal share of any amount that would be recovered until such time as this lawsuit was resolved.

A settlement was reached with United Parcel several months later, and the estate administrator paid Pat Fancher the portion of the proceeds that she would be entitled to receive even if the marriage was recognized (half the balance over $100,000), putting the rest, about half a million dollars, in a trust account pending the resolution of Hard’s case. Meanwhile, litigation was proceeding separately challenging Alabama’s refusal to recognize same-sex marriages, and U.S. District Judge Callie Granade ruled in the Searcy case on January 23, 2015, that the ban was unconstitutional.  When she refused to stay her ruling, the Alabama State Registrar of Vital Statistics issued a new death certificate recognizing the Held-Fancher marriage, and the judge in Held’s case allowed the administrator of the state to intervene to pay over the balance of the trust money into the court’s registry.  Judge Watkins then stayed the case, pending the U.S. Supreme Court’s decision in Obergefell v. Hodges, which was expected by the end of June.

When the Supreme Court ruled, Hard moved to lift the stay and disburse the remaining money to him. At the same time, Alabama Attorney General moved to have the case dismissed as moot, arguing that because he was required to recognize the marriage under Judge Granade’s injunction, the Supreme Court had struck down the ban on same-sex marriage, and Hard had obtained the substitute death certificate, there was nothing left for the court to decide and the case was moot.  The court granted Hard’s motion to release the funds to him and dismissed the case on July 15.

Pat Fancher quickly filed a motion to set aside the dismissal order and block payment of the funds to Hard. She argued that unless the Obergefell case applied retroactively, the amended death certificate was invalid, because at the time her son died he was not legally married to Hard under the Alabama law then in effect.  The district court denied the motion and ordered the clerk court to distribute the money, about $500,000, to Hard.  Pat Fancher appealed.

The 11th Circuit Court of Appeals denied her appeal on April 20, in Hard v. Attorney General, 2016 WL 1579015.  The court pointedly refrained from deciding whether Obergefell applies retroactively.  Rather, it focused on the failure of Fancher’s motion to argue that the case was not moot, which would be the only valid ground to challenge the trial court’s decision to dismiss the case.  The 11th Circuit pointed out that as Hard had obtained all the relief he was seeking, there was no “live controversy” before the district court.

As to Fancher’s challenge to the district court’s order to the clerk to pay the remaining money to Hard, the court said, “We conclude there was no abuse of discretion because the district court properly applied Alabama law of intestate succession pertaining to surviving spouses. Simply put, once the State of Alabama recognized Hard as the surviving spouse and the district court dismissed the case as moot, the court committed no abuse of discretion by disbursing the funds accordingly.”

Held is represented by Montgomery attorneys David Dinielli, Scott Daniel McCoy and Samuel Eugene Wolfe. Pat Fancher is represented by Matthew Thomas Kidd, also of Montgomery.   The 11th Circuit opinion was issued “per curiam” by a panel consisting of Judges Adalberto Jordan, Julie Carnes and Jill Pryor.

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A Flood of New Litigation on LGBT Rights

May has brought a flood of litigation over LGBT rights in the federal courts. During the first few days of the month, half a dozen federal lawsuits were filed addressing either the transgender bathroom issue or continuing state-level resistance to marriage equality.

First out of the box was a lawsuit filed in federal court in Chicago on May 4 by two right-wing litigation groups – The Thomas More Society and the Alliance Defending Freedom – challenging the U.S. Department of Education’s agreement with Township School District 211 that settled a lawsuit about transgender restroom access.   Under the settlement agreement the school district will allow transgender students to use restrooms and other facilities consistent with their gender identity.  The case stirred considerable local controversy, and the litigation groups were able to recruit five students and their parents, banding together as “Students and Parents for Privacy,” to challenge the settlement.  They argue that the students have a fundamental constitutional right of “bodily privacy” that is violated when transgender students show up in the restroom, that the settlement violates the parents’ fundamental right to direct the education and upbringing of their children by exposing the children to such shocking things, and, perhaps most importantly, that the Education Department’s position that gender identity discrimination violates Title IX of the Education Amendments Act, a federal law that bans sex discrimination in schools that receive federal money, is a misinterpretation of that statute and was not validly adopted.

This last argument rests on a plausible reading of the Administrative Procedure Act, a federal statute that specifies procedures that federal agencies must follow when they adopt new regulations. While the Education Department has not adopted a regulation on the subject, the plaintiffs make a strong argument that its enforcement of its interpretation is tantamount to a regulation.  The plaintiffs argue that the Department is not free to take such a position without going through the formalities of the Administrative Procedure Act, because the Department is enforcing its view as if it was a regulation and because the position it is taking was consistently rejected for the first several decades of Title IX’s existence.  (The statute dates from the early 1970s.)  If the courts agree, the Department would have to go through a time-consuming process that could stretch out over many months in order to adopt a valid regulation, and then the regulation would be subject to challenge in the federal appeals courts, which could tie it up in litigation for years.

On the other hand, many of the plaintiffs’ arguments have already been rejected by the Richmond-based U.S. Court of Appeals for the 4th Circuit, when it ruled on April 19 that a federal court in Virginia should have deferred to the Education Department’s interpretation of Title IX in a case brought by a transgender boy seeking appropriate restroom access in his Virginia high school.  That ruling turned on the court’s agreement with the Education Department that existing statutory provisions and regulations (which allow schools to maintain separate restrooms for males and females) were ambiguous as to how to treat transgender people, justifying the Department in adopting a position consistent with its view of the purpose of the law to provide equal educational opportunity.  The 4th Circuit held that the district court should defer to the Department’s judgment, since it was not a clearly erroneous interpretation of the statute and the existing regulations.  In the Chicago lawsuit, the plaintiffs argue that the statute and regulations are not ambiguous, but this rests on their assertion that the Congress that passed Title IX so long ago could not have intended any meaning for the term “sex” other than “biological sex” as determined at birth.  The 4th Circuit, by contrast, found that the term “sex” without any explanatory statutory definition could have a variety of meanings depend upon the context in which it was used, and is thus inherently ambiguous.

Chicago is in the 7th Circuit, so the 4th Circuit’s ruling is not binding on the lawsuit filed there.  More than thirty years ago, the 7th Circuit ruled in a case under Title VII of the Civil Rights Act that discrimination because of gender identity did not violate the sex discrimination provision and the federal court in Chicago may find itself constrained, if not directly bound, by that precedent under a different but parallel statute, although thirty years of developments in the courts have arguably rendered it obsolete.  Federal courts have generally held that the term “sex” in Title VII and Title IX should be given the same meaning, and that cases construing one of those statutes can be consulted when construing the other.

Just five days later, on May 9, there was a flurry of new litigation in the U.S. District Courts of North Carolina, focused on the bathroom provisions of H.B. 2. H.B. 2 was introduced in the state legislature, approved by both houses and signed by Governor Pat McCrory in one day, March 23.  It wiped out local government bans on sexual orientation and gender identity discrimination, quashed the right of North Carolinians to sue for any kind of discrimination in state courts, and prohibited localities from adopting their own rules on government contracting and minimum wages.  Most controversially, however, it provided that in all public facilities with restrooms, changing rooms, locker rooms and the like, multi-occupancy facilities must be segregated by biological sex, defined as the sex recorded on a person’s birth certificate.  The state’s attorney general, Roy Cooper, denounced the measure as discriminatory and said his office would not defend it.

Lambda Legal and the ACLU filed a federal lawsuit in the Middle District of North Carolina on March 28, challenging portions of H.B. 2 under the 14th Amendment and Title IX, and subsequently one of the transgender plaintiffs in the case also filed charges of discrimination under Title VII with the Equal Employment Opportunity Commission (which had ruled last year that Title VII requires employers to allow transgender employees to use restrooms consistent with their gender identity).  Within a few weeks, the 4th Circuit’s April 19 ruling in the Virginia Title IX case placed the legality of the bathroom provisions in doubt.  The controversy surrounding H.B. 2, especially the bathroom provision and the preemption of local anti-discrimination ordinances, caused adverse reactions that echoed throughout the country as governors and mayors prohibited official travel to North Carolina, some major employers announced reconsideration of plans to locate facilities there, and conventions and major musical performers cancelled activities in the state.  But Governor McCrory and the Republican state legislative leaders rejected calls to rescind the statute.

The Justice Department weighed in early in May, when the Civil Rights Division sent a letter to Governor McCrory, who had been vigorously defending the law in national media, informing him that the Justice Department considered the bathroom provision to violate federal sex discrimination laws and demanding a response by May 9. Governor McCrory’s response was to file a lawsuit on May 9, seeking a declaration from the federal district court in the Eastern District of North Carolina that the bathroom provisions did not violate federal civil rights laws.  U.S. Attorney General Loretta Lynch then held a press conference at which she unveiled a new lawsuit by the federal government against North Carolina, filed in the Middle District of North Carolina, seeking a declaration that the bathroom provision violates federal law.  Lynch’s statement, which quickly went viral on the internet, promised transgender people that the federal government recognized them and was standing behind them, thus putting the full weight of the Justice Department on the line backing the Education Department and the EEOC in their interpretations of “sex discrimination” under their respective statutes.

Since North Carolina Attorney General Cooper was refusing to defend H.B. 2, Governor McCrory retained a private lawyer, Karl S. Bowers, Jr., of Columbia, South Carolina, who filed the complaint co-signed by the governor’s General Counsel, Robert C. Stephens, and local North Carolina attorneys from the Raleigh firm of Millberg Gordon Stewart PLLC.  Presumably they will also be conducting the defense in the Justice Department’s case.  Their argument, consistent with McCrory’s public statements, was that the state was not discriminating against transgender people, merely requiring them to use alternative facilities in order to protect the privacy rights of others.  The complaint echoed the governor’s “common sense privacy policy” argument, and insisted that federal courts have “consistently” found that Title VII “does not protect transgender or transsexuality per se.”  While the complaint lists half a dozen federal court rulings supporting that position, it conveniently fails to note numerous court decisions holding to the contrary, including decisions by the 6th Circuit Court of Appeals, based in Cincinnati, and district courts in many different states.

The Justice Department will probably move to transfer McCrory’s case to the Middle District of North Carolina, where it can be consolidated with the Justice Department’s lawsuit and perhaps the pending Lambda/ACLU lawsuit. There was another lawsuit defending H.B. 2 filed on May 9 in the Eastern District court by North Carolina Senate Leader Phil Berger (R-Rockingham) and House Speaker Tim Moore (R-Cleveland), but it is hard to conceive how they could have standing to bring a federal lawsuit on their own, so it is likely to be dismissed if the government makes a motion to that effect.

Meanwhile, there were also new litigation developments in Mississippi, challenging House Bill 1523, the so-called “Protecting Freedom of Conscience from Government Discrimination Act.” HB 1523 was passed in response to the Supreme Court’s Obergefell marriage equality decision of last June 26.  Subsequent to Obergefell, the New Orleans-based 5th Circuit Court of Appeals upheld a federal district court injunction against the state of Mississippi’s enforcement of its anti-gay marriage ban, and marriage equality came to the state.  State legislators quickly went to work undermining this by devising H.B. 1523, which essentially gives government officials, businesses, and religious believers permission to discriminate against same-sex couples, provided that the discriminators have a sincere religious belief that marriage should only involve one man and one woman.  The measure is scheduled to go into effect on July 1.

The ACLU lawsuit filed on May 9 in the federal court in Jackson, Mississippi, charges that H.B. 1523 violates the 14th Amendment “by subjecting the lawful marriages of same-sex couples to different terms and conditions than those accorded to different-sex couples.”  In effect, Mississippi has set up a “separate but equal” framework, which “imposes a disadvantage, a separate status, and so a stigma upon all married same-sex couples in Mississippi.”  The lawsuit names as defendant the Mississippi State Registrar of Vital Records, Judy Moulder.

Among its many discriminatory provisions, H.B. 1523 provides that government employees “who wish to recuse themselves from issuing marriage licenses to same-sex couples” will be required to Moulder, and she will be required to maintain a list of officials who have recused themselves from providing same-sex couples with the services that are routinely provided to different-sex couples, and they will be excused from providing these services to same-sex couples. These recusant officials are also charged by the statute with a requirement to make arrangements to insure that same-sex couples do receive the services to which they are entitled, but the statute does not establish any mechanism to ensure compliance with this provision.

The ACLU lawsuit seeks a declaration from the court that H.B. 1523 is unconstitutional “on its face” and an injunction against it going into effect.   It was immediately followed by more court action, as New York attorney Roberta Kaplan, who represents the plaintiffs in the Mississippi marriage equality case, filed a motion in federal district court on May 10, asking Judge Carlton Reeves to reopen the case so they can name Judy Moulder as an additional defendant and modify his injunction to require the state to come up with the necessary procedures to ensure that same-sex couples who seek to marry will not encounter any delays due to recusals on religious grounds by state officials.  Indeed, she argues, anyone recusing themselves from serving same-sex couples should be disqualified from serving different-sex couples as well, as failure to do so would violate the obligations of all state officials to provide non-discriminatory service. The motion also asks that the list of recusant officials be posted on the website of the Registrar of Vital Records so that couples won’t have to subject themselves to the indignity of being turned away when they seek marriage licenses.

 

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Mississippi Appeals Court Upholds 75 Year Prison Term for HIV-Positive Man Who had Unprotected Sex With Gay Teen

On April 19 the Court of Appeals of Mississippi affirmed a 75-year prison sentence for Timothy Allen McCoy, who was convicted of four counts of sexual battery and one count of exposing another to HIV.  McCoy did not argue on appeal that he did not engage in the conduct charged against him, but he claimed that the trial judge was biased, resulting in an excessive sentence, and the evidence did not support his conviction.  Judge Jim Greenlee wrote for the unanimous appeals court panel of nine judges.  McCoy v. State, 2016 WL 1568004, 2016 Miss. App. LEXIS 228.

According to McCoy, the teenage boy, who is identified in the court’s opinion as “G.G.,” contacted him on a social-networking website for gay men.  They chatted back and forth on-line before deciding to meet in person.  McCoy was 41 at the time and the boy claimed in his trial testimony that he was then fifteen.  G.G. gave McCoy the address of his father’s house near Decatur and arranged for McCoy to pick him up at 2 a.m.  G.G. “sneaked out” and got into McCoy’s car.  McCoy drove them to a secluded spot where they had sex.  According to G.G., McCoy said nothing about being HIV positive, said he was 34 years old, and did not use condoms.  They had oral and anal sex and were together less than an hour before McCoy drove G.G. back to his father’s house.  G.G.’s parents were divorced and he lived with his mother and stepfather.  At the time he was just visiting with his father.

G.G. testified that this encounter occurred in mid-April 2012, but he could not remember the exact date.  McCoy testified that it took place in late July, shortly after G.G.’s 16th birthday.  He also testified that he told G.G. that he was HIV-positive, that G.G. had consented to having sex with a condom, and that when they met G.G. told McCoy that he was 18.

G.G.’s mother testified that she became concerned about G.G.’s behavior and began looking at his phone and phone records on Mother’s Day in May 2012.  According to Judge Greenlee’s opinion, “She discovered naked pictures of men and sexually explicit text messages” and turned this information over to the police.  A warrant for McCoy’s arrest was issued on September 10, 2012, after he was identified from the phone records, and he was interviewed by police officers the next day.  He agreed to give a voluntary statement without speaking to an attorney, probably because he believed he had done nothing wrong.  This is almost always a mistake.

The police officers testified that McCoy told them he met G.G. online, drove to G.G.’s father’s home at 2 a.m. to pick him up, drove G.G. to a secluded spot on a dirt road, and that they exchanged oral and anal sex. The police testified that McCoy admitted to the police that he was HIV positive and that he had not used condoms.

The court’s opinion does not say anything about G.G. becoming infected with HIV as a result of this incident. It also says nothing about McCoy’s viral load or treatment history, or whether there was testimony at trial about how HIV is and is not transmitted.

The jury convicted McCoy on all counts. The Judge Marcus D. Gordon sentenced him to a total of 75 years on the battery counts and ten years on the HIV exposure count, to run “concurrently” with the battery sentences, to pay a $10,000 fine, and to register as a sex offender. Given McCoy’s age, this is virtually a life sentence.

McCoy argued that Judge Gordon had expressed a personal prejudice against his sexual orientation resulting in an unduly harsh sentence and asked that the court re-assign the case to a new judge for re-sentencing. The court of appeals included extensive quotations from the transcript of the sentencing hearing that were offered by McCoy as evidence of prejudice.

Judge Gordon said, “Well, Timothy Allen McCoy, I consider myself a normal person, and I don’t understand fully what you have – you yourself have testified that you are homosexual, that you are attracted to someone for physical activities. I want you to tell me why is it that you as a forty-one year old man was [sic] attracted to a fifteen year old boy for sexual activity?”  McCoy replied, “At the time, sir, I did not know that he was fifteen.”  “How old did you think he was?” asked Gordon.  “He said he was eighteen,” responded McCoy.  “All right.  That is still a minor child in my opinion,” said Gordon.  “Yes, sir, I understand,” said McCoy.  “Why is it that you was [sic] attracted to him?”  “I can’t answer that, sir,” replied McCoy.

Continuing the questioning, Gordon asked, “You’ve done it before? This is not your first experience?”  “With…” “Anyone?”  “No,” replied McCoy, “it’s not my first experience with anyone, no, sir.”  “All right, all right,” said Gordon.  “You know that that type of activity was wrong, did you not?  That a forty-one year old man should not have sex with a person, a male person, who is either fifteen or eighteen?  You knew it was wrong to have sex with an eighteen-year-old person or a fifteen year old person, did you not?”  “Yes, sir.”  “Why did you do it?”  “I don’t know at the time, sir.  Actually, Your Honor, I had a – I guess – a drug problem at the time.  I was on Lortab.”  “That’s an excuse, not a justification,” said Gordon.

Interestingly, the age of consent for sex in Mississippi is 16, which explains why, from a defense strategic point of view, McCoy testified that they had sex after G.G.’s 16th birthday, which would have made it legal solely from an age point of view.  And, of course, if Gordon was suggesting that it would be illegal for McCoy to have sex with an 18 year old boy, as he claimed G.G. had represented himself to be, Gordon would be in error.  Courts have consistently ruled that because age of consent laws are intended to protect minors from sexual exploitation by adults, a misrepresentation of his or her age by a minor is irrelevant to the guilt or innocence of the defendant.  Sex between an adult and a minor will be deemed non-consensual regardless of “actual” consent.

The judge then headed off on a somewhat rambling diatribe: “In reviewing your activities,” he said, “I refer again to the sentencing statute, and my thoughts regarding sentences are controlled by the fact that you have some education, including some education in college, and that you as an adult man, forty-one years old, with your background, knowing what’s involved with you having sex with a minor person, that you joined with that young fellow, not knowing him, and taking him in your car and driving a short distance to a dirt road with a strange person and having anal sex and fellatio at a time when you had HIV, knowing what you were doing, knowing that this was a minor child, soliciting him to a wrongful act, an act that shocks the conscience of people of this country, that you would do that to a minor child, causing that child possibly to live a life such as you. He will have this life for the remainder of his life.  Perhaps, he will become a person as you because he has had now we know, I know, a sexual experience which, if you want to call it sexual…  He has that life.  Perhaps, he will not have a job, and perhaps he will be ridiculed and not likely he’ll be accepted in the general society as you are not accepted in generally accepted…  He will live a life in secretion.”

Opposing McCoy’s appeal of the sentence, the State argued that the judge’s comments were not “sufficient to overcome the presumption that he was unbiased and impartial.” The court of appeals agreed with the State, despite the quoted passages.  Judge Greenlee wrote that McCoy’s contention that the judge was biased was based on “mere speculation.”  He pointed out that the judge explicitly relied on “multiple aggravating factors,” including G.G.’s actual age, McCoy’s “admission” to the police that he was HIV positive and had not used condoms (which he contradicted in his testimony by saying he had used condoms), the secretive nature of the 2 a.m. meeting, and the “secluded spot on a dirt road” where the admittedly furtive encounter took place.  It seems as well that McCoy had a police record, including four misdemeanor charges or convictions in Georgia between 1990 and 2001, one involving “enticing a minor.”

Greenlee pointed to the consistent practice of the appellate courts in Mississippi to uphold sentences imposed by trial courts if they fell within the limits prescribed by the sentencing statute. In this case, he wrote, on four sexual battery counts McCoy was exposed to a potential sentence of up to 130 years, so 75 was well under the statutory maximum and the court concluded that bias had not been shown.

McCoy also argued that his lawyer had not provided effective representation at trial. The appeals court refused to address this claim in the context of an appeal of the sentence rather than an appeal of the conviction, asserting that the trial record did not clearly support the claim and that McCoy  could raise it anew in a petition for post-conviction relief.  McCoy also faulted his attorney for not getting the case dismissed on the grounds that G.G. was “of age” when the incident occurred, but the court pointed out that his attorney did make this argument for a directed verdict after the prosecution put on its witnesses, pointing out that there was no direct evidence that the incident occurred before G.G. turned 16 and that this was a “crucial element” of the prosecution’s case, so the court of appeals said the attorney could not be faulted for not making an argument he actually made.

McCoy emphasized the same issues to argue that the evidence did not support the verdict. “He asserts the evidence showed the first contact (on-line) occurred on July 22, 2012, and the sexual encounter occurred on July 28, 2012, after G.G. turned sixteen, rather than April 13, 2012, as charged in the indictment,” wrote Judge Greenlee.  Thus, McCoy argued, his battery conviction could not be based on G.G.’s testimony, since G.G. was vague about when it occurred.

However, pointed out Greenlee, G.G.’s mother testified that she became suspicious something was up and began reviewing G.G.’s phone records on “Mother’s Day of 2012,” which was in May, and that’s when she discovered the communication with McCoy, contradicting his testimony that the first on-line contact was in July. A police detective also testified in support of an April date for the encounter, although he did not specify a specific date but rather a range of days.  When McCoy was cross-examined about the date, he testified, “I might not be sure, but I’m almost positive that that’s the date it happened,” referring to July 28.  Thus, there was conflicting testimony, and the court of appeals held that a jury could have resolved the conflict in favor of the prosecution.

There was also conflicting testimony about whether McCoy told G.G. he was HIV positive and whether condoms were used. When there is conflicting testimony, it is up to the jury to resolve it based on credibility, and in this case it was resolved against McCoy.  “Viewing the evidence in the light most favorable to the state,” as the court is obliged to do after a conviction, “we find that a reasonable jury could have found McCoy guilty beyond a reasonable doubt.”

Finally, responding to McCoy’s contention that his sentence was disproportionate to the seriousness of the crime, the court quoted a U.S. Supreme Court decision to the effect that sentences “that do not exceed the maximum punishment allowed by statute will not be considered grossly disproportionate and will not be disturbed on appeal.” Greenlee pointed out that McCoy “has cited no cases where a comparable crime resulted in a lesser sentence.”

McCoy was represented on appeal by attorneys from the Office of the State Public Defender, George T. Holmes and Justin Taylor Cook, and is also listed as having participated actively in his own defense. He could attempt to appeal this ruling further to the state Supreme Court, which is not a notably gay-friendly bench.  It appears that McCoy may spend the rest of his life in prison for a brief fling with a boy who said he was 18 when they met, during which HIV was not transmitted.  McCoy is not claiming that he is innocent, just that the sentence is excessive in light of how things turned out.

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Iowa Supreme Court Bars Wrongful Imprisonment Suit by HIV-Positive Man Whose Conviction Was Vacated by That Court

 

In an unfortunate turnabout, the Iowa Supreme Court unanimously ruled on April 15 that Nick Rhoades, whose guilty-plea conviction to one count of criminal transmission of HIV was reversed by that court in 2014, could not bring an action for damages against the state under its Wrongful Imprisonment Statute because the statute does not allow claims by those who pled guilty. Rhoades v. State of Iowa, 2016 WL 1533519, 2016 Iowa Sup. LEXIS 47.  The court declined to follow rulings in some other states interpreting similar statutes that had allowed such lawsuits when a guilty plea was vacated on appeal.

Rhoades met A.P. through a social networking website. After exchanging messages, A.P. invited Rhoades to his home and they had unprotected oral sex and anal sex with a condom.   A.P. believed Rhoades to be HIV-negative based on his online profile, and they did not discuss the issue before having sex.  When A.P. subsequently learned that Rhoades was HIV-positive, he contacted law enforcement and Rhoades was charged with criminal transmission of HIV under Iowa Code sec. 709(C).1, a statute that was subsequently repealed in part due to the publicity surrounding this case, and replaced with a statute that better reflects current science on HIV transmission.  Rhoades pled guilty to the charge and was sentenced to 25 years in prison, lifetime parole, and a requirement to register as a sex offender.  No evidence was presented that A.P. was infected with HIV, and the statute at that time did not require evidence of actual transmission, merely exposure that could cause transmission.

Rhoades filed a motion to reconsider the sentence, stressing the lack of transmission, and the district court suspended the prison sentence and placed him on five years’ probation. Then Rhoades filed an application for postconviction relief.  He claimed his trial counsel provided ineffective assistance by letting him plead guilty when there was, in his view, no factual basis for the charge.  Rhoades argued that as his viral load was virtually undetectable at the time he had sex with A.P., the chance that he would transmit the virus, even through unprotected anal sex, was slight, and certainly not sufficient to meet the standard of guilt under the statute, which required “the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the human immunodeficiency virus.”  This was described in the statute as “intimate contact.”  At the time of his guilty plea, the trial judge asked Rhoades if he had engaged in “intimate contact” with A.P., without any explanation by the judge or Rhoades’ trial counsel of the meaning of that term.  Indeed, without an explanation, Rhoades could have believed he had violated the statute without having engaged in any penetrative sex.  Although the trial and intermediate appellate courts rejected his motion, the Iowa Supreme Court reversed because, as Justice Appel writes in the current decision, “We concluded that the district court had used technical terms from the statute but that such conclusory terms were insufficient to establish that the defendant acknowledged facts consistent with the completion of the crime.  We further noted the minutes of testimony and the presentence investigation report did not provide a factual basis for the element of intimate contact.”

The Supreme Court had also concluded that “in light of advances in medicine” the record contained “insufficient evidence to show that Rhoades exchanged bodily fluids with A.P. or intentionally exposed A.P. to the disease.” By vacating the guilty plea, the court was not concluding that Rhoades was innocent, but rather that a new trial was needed to determine his guilt, either through a properly informed guilty plea or a trial.  “Because it was possible the State may have been able to establish the necessary factual basis,” wrote Justice Brent R. Appel, “we directed the district court to give the State an opportunity to do so.  If the State was unable to do so, we stated that the plea must be withdrawn and the State could proceed accordingly.  On remand, the State dismissed the charges against Rhoades.”

In the current lawsuit, Rhoades asserted a claim under Iowa Code chapter 663A for “wrongful imprisonment.” That provision provides relief if two tests are met: “the individual did not plead guilty to the public offense charged, or to any lesser included offense, but was convicted by the court or by a jury of an offense classified as an aggravated misdemeanor or felony,” and the claimant proves “by a clear and convincing preponderance of the evidence that the claimant is actually innocent.”  Thus, the legislature was not authorizing a damage claim by somebody who had been officially charged and convicted but then got off on some technicality or procedural flaw.  The Supreme Court pointed out that if it were to hold that Rhoades’ guilty plea was not disqualifying in this case, he would still have to prove his innocence under the repealed statute before he could receive relief.  The focus of this appeal, however, was on interpretation of the guilty plea language.

Rhoades argued, with support from some cases in other jurisdictions, that a guilty plea that is vacated or nullified as the result of an appellate ruling should not stand in the way of a “wrongful imprisonment” claim, but, after a lengthy consideration of the issue, including review of the various state wrongful imprisonment statutes, the court decided to reject his claim. First, it pointed out, the statutory language was clear and did not include any statement, as was found in other state’s laws, softening the guilty plea bar in certain circumstances.  Justice Appel pointed out that in a separate provision the legislature had provided that somebody who is vindicated and proved innocent through DNA evidence may seek relief despite having pled guilty, and “the difference in linguistic approach between Iowa’s DNA statute and the wrongful imprisonment statute offers at least some support for the view that if the legislature intended to provide relief to those who plead guilty, it knows how to do it.”  There was also the contention that the state “should not pay for convictions for which the accused is in part responsible.”  The court also noted that the overwhelming majority of criminal charges are resolved through plea bargaining resulting in a guilty plea in exchange for an agreed sentence, and “the legislature could rationally believe that allowing one who pleads guilty to later seek compensation from the state unduly unravels the benefit of the bargain.”  The court observed that as a result of the guilty plea, there is no trial record in the case, so no basis relatively contemporary with the charged acts for a court to determine whether the claimant can prove actual innocence.  The court also noted the fiscal consequences of allowing such claims by defendants who pled guilty.

While acknowledging at some length the flaws in its arguments attempting to justify disqualifying Rhoades, the court ultimately retreated into a narrow view of its role in matters of statutory interpretation. “Although there are substantial arguments that a guilty plea should not disqualify a claimant from seeking compensation for wrongful imprisonment in all instances,” wrote Justice Appel, “we conclude … that the legislature made a different judgment in 1997” when it enacted the statute.  “Our job is to do the best we can in interpreting the meaning of legislation.  We do not expand the scope of legislation based upon policy preferences.  In balancing all the considerations, we think the best interpretation of Iowa Code section 663A.1(1)(b) is that it categorically excludes all persons who plead guilty from Iowa’s wrongful imprisonment statute.  This interpretation leads to a narrow but not impractical or absurd result.  As we have stated before, if we have missed the mark, the legislature may respond to correct it.”  The court upheld the lower courts’ dismissal of Rhoades’ claim.

Justice Thomas Waterman, specially concurring, opined that most of Justice Appel’s decision was unnecessary because the clear language of the statute excludes those who plead guilty from relief. Justice Bruce Zager also concurred, having dissented in the earlier case in which the court had vacated Rhoades’s guilty plea, and continuing to take the view that “the record, when viewed as a whole and allowing all reasonable inference, provided an ample factual basis for his guilty plea.”

Rhoades is represented in this appeal by attorney Dan Johnston of Des Moines. Since the case revolves entirely around an interpretation of an Iowa statute, there appears no basis to seek further review from the U.S. Supreme Court.

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4th Circuit Revives Transgender Teen’s Title IX Claim Against Virginia School Board

A three-judge panel of the Richmond-based U.S. 4th Circuit Court of Appeals voted 2-1 on April 19 that U.S. District Judge Robert G. Doumar erred by not deferring to the U.S. Department of Education’s interpretation of its regulations to require schools to let transgender students use restrooms consistent with their gender identity.  Judge Doumar had dismissed a claim by G.G., a teenage transgender boy attending high school in Gloucester County, Virginia, that the school violated his statutory right under Title IX of the Education Amendments Act by adopting a rule that he could use only restrooms designated for girls or unisex single-user restrooms.  The court referred to the plaintiff by his initials throughout the opinion to guard his privacy, but the ACLU’s press releases about the case identify him as Gavin Grimm.  G.G. v. Gloucester County School Board, 2016 U.S. App. LEXIS 7026 (April 19, 2016).

The high school had accommodated G.G. when, at the beginning of his sophomore year in August 2014, he informed school officials that he was transitioning, had gotten a legal name change, and would be expressing his male gender identity, by letting him use the boys’ restroom. After several weeks without serious incident,  some parents alerted to the situation by their children objected and pushed the school board to adopt its resolution after two public meetings in which indignant parents threatened the board members with political retribution if they did not adopt the restrictive policy.  G.G., now 16, has not undergone reassignment surgery, which is not available to minors under the prevailing medical standards for treating gender dysphoria, but has transitioned in all other respects and identifies fully as male.

The 4th Circuit is the first federal appeals court to rule that the Education Department’s interpretation of Title IX, as expressed in an opinion letter by the Department’s Office of Civil Rights on January 7, 2015, in response to this controversy, should be followed by the federal courts.  Since North Carolina is also within the 4th Circuit, this ruling, as it now stands, suggests that the “bathroom” provisions of the notorious H.B. 2, at least as they apply to public educational institutions, violate federal law, as the ACLU and Lambda Legal have argued in a lawsuit challenging that statute pending in the U.S. District Court in North Carolina.

Writing for the majority of the panel, Circuit Judge Henry F. Floyd observed that the court’s role in a case involving an administrative agency’s interpretation of a statute is most deferential when the statute and the official regulations that have been adopted by the agency are ambiguous regarding the particular issue in dispute. Title IX says that educational institutions that receive federal funds may not discriminate because of sex.  The regulations, adopted decades ago, provide that educational institutions may designate separate facilities for use by males and females, so long as the facilities are equal in quality, but never directly address how to deal with transgender individuals whose “biological sex” differs from their gender identity.  In this respect, concluded a majority of the court, the regulations are “ambiguous.”  As such, the Department’s interpretation of the regulations should be deferred to by the court when they are a reasonable interpretation of the statute.  Indeed, wrote Floyd, the Department’s interpretation is entitled to deference “unless the [school] board demonstrates that the interpretation is plainly erroneous or inconsistent with the regulation or statute.”

District Judge Doumar had concluded that the regulations were not ambiguous, and refused to defer to the Department interpretation. Judge Floyd devoted a section of his opinion to explaining why the regulations are ambiguous.  “We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading – determining maleness or femaleness with reference exclusively to genitalia – and the Department’s interpretation – determining maleness or femaleness with reference to gender identity.”  When language can support alternative readings, there is ambiguity.  “The Department’s interpretation resolves the ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.”

Protesting against this conclusion, dissenting Circuit Judge Paul Niemeyer (who was, incidentally, also a dissenter in the 4th Circuit’s Virginia marriage equality decision in 2014), found that it would produce unacceptable results by violating the “physiological privacy interest” of students who did not want to share restroom facilities with students whose biological sex differed from theirs.  Judge Niemeyer essentially articulated, in more elevated terms, the arguments that North Carolina Governor Pat McCrory has been making in defense of the “bathroom” provisions in H.B. 2: that the privacy concerns of students who object to sharing facilities with transgender students should take priority over the interests of the transgender students.

But Judge Niemeyer doesn’t put it quite so crudely. Indeed, he suggests that the opinion letter from the Department authorized just what the school board did, by opining that schools could accommodate the needs of transgender students by providing unisex single-occupancy facilities for them to use.  Judge Floyd points out, however, that the Department’s advice was to provide such facilities for students who did not want to use multiple-use facilities.  In this case, G.G. wants to use the male-designated multiple-use facility as being congruent with his gender identity.  As to the privacy concerns, the court noted that the school board has made physical modifications in the boys’ restrooms by adding partitions between urinals and taping over visual gaps in the toilet stalls so as to enhance the privacy of all users.

Judge Floyd emphasized that because G.G. was only contesting the school board’s policy on restrooms, the court did not have to deal with the question whether other single-sex facilities, such as locker rooms and shower rooms, would have to be open to transgender students as well. Judge Niemeyer observed that discrimination “because of sex” had to mean the same thing throughout the statute and regulations, so he argued that the majority opinion opened up the door to allowing transgender students to claim a right of access to all such sex-designated facilities.

In a somewhat unintentionally humorous footnote, Judge Floyd noted the school board’s argument, reiterated in Judge Niemeyer’s dissent, that allowing biological males into the girls’ restrooms and biological females into the boys’ restrooms could produce “danger caused by ‘sexual responses prompted by students’ exposure to the private body parts of students of the other biological sex.’” Floyd observed, perhaps tongue in cheek, “The same safety concern would seem to require segregated restrooms for gay boys and girls who would, under the dissent’s formulation, present a safety risk because of the ‘sexual responses prompted’ by their exposure to the private body parts of other students of the same sex in sex-segregated restrooms.”  Yes!  Here is a federal judge with real empathy for hormone-infused teenagers of every sexual orientation and gender identity!

In addition to appealing Judge Doumar’s dismissal of his Title IX claim, G.G. was also appealing the Judge Doumar’s refusal to issue a preliminary injunction that would require the school board to let him use the boys’ restroom facilities while the case proceeded. Judge Doumar had refrained from ruling on G.G.’s constitutional equal protection claim, so his case was still alive before the district court even though his Title IX claim was dismissed.  Judge Doumar had focused his refusal of injunctive relief on his determination that G.G. failed to show that he would suffer irreparable harm if he was excluded from the boys’ restrooms while the case was pending.

The majority of the panel concluded that Doumar had wrongly refused to give appropriate consideration to the evidence presented by G.G. and his medical expert on this point, applying too strict a standard for considering evidence in the context of a motion for a preliminary injunction. The majority concluded that the appropriate step was to reverse the dismissal of the Title IX claim and send the case back to the district court for reconsideration of the motion for preliminary injunction, applying the correct evidentiary standard.  This means that G.G. will be back to square one before the district court, but with the wind of the court of appeals decision behind his back on key issues in the case.

G.G. had asked the court of appeals to reassign the case to another district judge. Judge Doumar made various comments in court that suggested bias, or at least a refusal to believe in the validity of the concept of gender identity, with references to G.G. as a girl who wanted to be a boy.  However, Judge Floyd pointed out, none of that objectionable language appeared in the written opinion that Judge Doumar released to explain his ruling, and the court was not going to conclude at this point that Doumar would not give appropriate consideration to the evidence when called upon by the court of appeals to reconsider his ruling, so the court denied G.G.’s request and the case will return to Judge Doumar.

The third member of the panel, Senior Circuit Judge Andre M. Davis, agreed with Judge Floyd that the Title IX claim should be revived, but would have gone further, contending that G.G. had satisfied the requirements for a preliminary injunction. However, since the grant of such an injunction is a matter within the discretion of the trial judge, he ultimately agreed to “defer to the district court in this instance.  It is to be hoped,” he continued, “that the district court will turn its attention to this matter with the urgency the case poses.  Under the circumstances here, the appropriateness and necessity of such prompt action is plain.  By the time the district court issues its decision, G.G. will have suffered the psychological harm the injunction sought to prevent for an entire school year.”

Judge Niemeyer’s dissent, reminiscent of his dissent in the Virginia marriage equality case, harps on the “unprecedented” nature of the ruling, asserting that the court’s “holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect.” He also accused the majority of misconstruing the language of Title IX and its regulations, and concluded that “it reaches an unworkable and illogical result.”

G.G. is represented by the ACLU of Virginia and the ACLU’s national LGBT rights project. Joshua Block argued the appeal on his behalf on January 27.

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9th Circuit Revives Equal Protection Claims against San Diego Police in Pride Festival Public Nudity Arrest

A panel of the U.S. Court of Appeals for the 9th Circuit has revived a constitutional case against the San Diego Police Department by Will X. Walters, who was arrested for “public nudity” at the 2011 San Diego Pride Event while wearing what the trial court described as “a gladiator-type black leather loincloth.”  U.S. District Judge Cathy Ann Bencivengo had dismissed his Equal Protection claim on March 11, 2014.  His appeal took exactly two years to oral argument before the 9th Circuit on March 11, 2016, but less than a month for the court to rule on April 5 that Judge Bencivengo erred in granting summary judgment to the defendants.  Walters v. Nieslit, 2016 U.S. App. LEXIS 6239, 2016 WL 1320762.

According to the district court’s opinion, based on Walters’ complaint and the allegations accompanying the city’s motion for summary judgment, police officers met with the San Diego Pride organization about two months in advance of the event, at which time a Pride staffer told the officer in charge that “they were having issues with the public nudity and they were asking the police department to help get compliance.” Pride organizers were concerned that excessive nudity would endanger the “family” nature of the event.  The police evidently resolved to be stricter than they had been in the past in enforcing the city’s public nudity ordinance at the Pride Event.

The ordinance states that nobody over the age of ten “shall be nude and exposed to public view in or on any public right of way, public park, public beach or waters adjacent thereto, or other public land.” The term “nude” is defined in the ordinance: “It shall mean devoid of an opaque covering which covers the genitals, public hair, buttocks, perineum, anus or anal region of any person, or any portion of the breast at or below the areola thereof of any female person.”  Male areolas can be exposed without alarming the horses, evidently.

Will Walters bought a ticket and was admitted to the 2011 Pride Event’s festival. Nobody at the admission point questioned his outfit.  “He was inside the beer garden in the festival having his photograph taken by a photographer when Lieutenant Nisleit told him that his outfit was borderline breaking the nudity law,” wrote Judge Bencivengo.  Nisleit told him to “cover up,” and Walters evidently responded belligerently, stating, according to the officer, “So either cite me, arrest me, or leave me alone because I’m not interested in your opinion.”  Nisleit told Walters that he was the person in charge and his opinion mattered, to which Walters replied, “You’re not a judge, you’re a police officer.”

Nisleit walked away and conferred with other officers on duty. Officer Debbie Becker went over to check out Walters, and testified that she “saw his butt.  The wind blew, and I saw his one buttock . . . the behind portion of his butt where his buttocks intersected with his leg … I could not see the crack.”  She tapped him on the shoulder and he was placed under arrest.  However, according to news reports about the case he was not prosecuted, although he was briefly held in the city jail and not provided with anything to wear other than his gladiator-style outfit.

Walters sued the City of San Diego, the police officers involved in his arrest, and San Diego Pride, Inc. and one of its members, claiming discriminatory enforcement against him of the nudity ordinance, invasion of privacy and false arrest, and battery (against a Pride member who alleged hit him during the arrest process). Walters argued that the police routinely ignored people wearing a lot less than he had been wearing in various other public venues, and he contended that the crackdown was taking place at the Pride Festival because of anti-gay animus.

In granting summary judgment to the defendants, Judge Bencivengo dismissed the significance of Walters’ allegations. “There is anecdotal evidence before the Court that individuals wearing less than what Walters wore at the 2011 Pride Event may not have been cited for public nudity at different times and in different settings,” she wrote.  “The Court concludes that this anecdotal evidence is irrelevant, confusing, lacking in foundation, and therefore, inadmissible.”  She contended that “unequal treatment that results from laxity of enforcement does not deny equal protection and is not constitutionally prohibited discriminatory enforcement.”

Further, she wrote, “Plaintiff proffers no competent evidence from which a reasonable fact finder could conclude that Walters’ arrest was based on his sexual orientation, or that it resulted from an unequal enforcement policy or practice concerning public nudity.” She also rejected any assertion that there was some “conspiracy” between the police and the San Diego Pride organizers to “implement an unlawful policy of discriminatory and selective enforcement of San Diego’s public nudity laws.”

But the 9th Circuit’s panel consisting of Judges Harry Pregerson, Richard Paez and Jacqueline Nguyen, reversed in an unsigned opinion designated as not for official publication.  They begged to differ with the trial judge, finding that Bencivengo “erred in granting summary judgment” to the city and Lt. Nieslit.  “Viewing all the evidence in the light most favorable to Walters, there are material triable issues of fact as to whether the San Diego Police Department (“SDPD”) adopted a discriminatory policy of selectively enforcing the City’s nudity ordinance at San Diego Gay Pride (the “Pride Event”) in 2011,” wrote the court, recounting the testimony about the planning meeting at which Lt. Nieslit “announced a new, more restrictive nudity policy for the Pride Event, which required that attendees fully cover their buttocks.  Previously, by contrast, SDPD had enforced a ‘one-inch rule’ at the Pride Event, which only required a one-inch strip of fabric covering the center of an attendee’s buttocks.  Walters also presented evidence that beachgoers and attendees of other special events in San Diego were in violation of the new nudity enforcement policy, but that SDPD did not increase enforcement anywhere except the Pride Event.  Given this and other evidence, Walter raised material triable issues of fact as to the existence of a policy of selective enforcement.”  And, of course, if there are material triable issue of fact, it is wrong for the trial court to grant summary judgment to the defendants.

The 9th Circuit opinion mentions some of the evidence that Judge Bencivengo omitted from her opinion, such as that “at least 12 to 15 other attendees were warned to ‘cover up’,” and that a police officer referred to Walters as a “drama queen” during his arrest.  The 9th Circuit panel saw this statement as “additional evidence of discriminatory purpose.”  The court also disputed Bencivengo’s assertion that because the Pride Event was open to everybody, not just gay people, a stricter enforcement policy at that event could not be construed as anti-gay.  “As for discriminatory purpose,” wrote the 9th Circuit panel, “Walters is entitled at the summary judgment stage to an inference that targeting Pride Event attendees is tantamount to targeting gay individuals and individuals who support gay rights.”  Furthermore, although it was possible that in a trial the City could establish that “another purpose motivated their nudity policy at the Pride Event, that question is seriously disputed.”

So Walters, who is represented by San Diego attorney Christopher Morris, will get a chance at a trial, unless the City offers a settlement offer that he can’t resist. This would undoubtedly have to include a commitment by the City to refrain from discriminatory enforcement of the nudity ordinance at future Pride Events.

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N.Y. Appellate Division Approves Comity for California Parentage Rights of Lesbian Co-Parent

The New York Appellate Division, Second Department, an intermediate appellate court based in Brooklyn, issued a unanimous ruling on April 6 affirming a decision by Suffolk County Family Court Judge Deborah Poulos recognizing the parental status of a lesbian co-parent, now resident in Arizona, who is seeking visitation with two children who were conceived through donor insemination while she was legally partnered with their birth mother, first as a California domestic partner and then as a California spouse.  The birth mother and children live in Suffolk County.  The case is Matter of Kelly S. v. Farah M., 2016 N.Y. App. Div. LEXIS 2533, 2016 N.Y. Slip Op 02656.

The lead sentence above is complicated, but not more so than the decision by Justice Sheri S. Roman, which methodically works its way through several complex issues to arrive at a total affirmance of Judge Poulos’s decision from March 2015, which not only upheld the co-parent’s standing to seek visitation but also rejected the birth mother’s attempt to institute a paternity action against the sperm donor for both children. Justice Roman’s opinion refers to the parties as Kelly S. and Farah M., but an article about the decision published in Newsday on April 9 identifies them as Kelly Steagall and Farah Martin.

According to the decision, Kelly and Farah began their relationship around March 2000 and became registered domestic partners in California in January 2004. Shortly afterwards they asked a close friend, Andrew S., to donate sperm so they could have a child together.  Kelly became pregnant and bore their first child, whom Farah legally adopted.  That child is not a subject of this lawsuit.

Kelly and Farah decided to have another child, and Andrew again donated sperm. This time Farah became pregnant, giving birth in March 2007 to Z.S.  Kelly was listed as a parent on the birth certificate and the child’s legal surname is Steagall.

After the California Supreme Court ruled for marriage equality in 2008, Kelly and Farah decided to get married, which they did that August. A few months later the voters approved Proposition 8, ending new same-sex marriages in California until it was declared unconstitutional several years later.  In the meantime, however, the California Supreme Court ruled in 2009 that same-sex marriages performed prior to the passage of Prop 8 remained valid.  Kelly and Farah decided to have a third child and Andrew again donated sperm so that Farah could become pregnant.  Their third child, E.S., was born in April 2009.  Kelly was again listed on the birth certificate as a parent, and E.S. received Kelly’s surname.

In 2012 the family relocated to New York State, but Kelly and Farah soon split up and Kelly moved to Arizona in the summer of 2013. The children remained in New York with Farah.  As diplomatic relations between the women were poor, Kelly filed a visitation petition in the Suffolk County Family Court, seeking visitation with Z.S. and E.S.  She alleged that the women were legally married in California and Kelly was a legal parent of the two children, whom she had helped to raise until the parties split up.

Farah moved to dismiss the case, arguing that Kelly lacked standing under New York law to seek visitation, invoking the old New York precedent of Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), under which same-sex co-parents were deemed to be “legal strangers” to their children. She also sought to drag Andrew into the case as the children’s biological father by filing a paternity petition.  Although Andrew had never sought to establish his paternity, he was a close friend of the women and had formed a loving relationship with the children and they with him.  Farah evidently hoped that if the court declared Andrew their legal father, that would cut off Kelly’s claim, because New York does not recognize that a child can have more than two legal parents at the same time.

Farah argued in opposition to Kelley’s standing that Z.S. was born before the women were married, and that Kelly should not be deemed their parent because the insemination did not follow the prescribed route under either California or New York donor insemination statutes, which specify the involvement of a doctor in performing the insemination and a written consent from the birth mother’s spouse in order to raise a presumption of parental status for the spouse. Both of these children were conceived through insemination at home without the aid of a physician.

LGBT family law has advanced so significantly in both California and New York since the turn of the century that Farah’s arguments clearly lacked merit. Same-sex marriage is legal in both states, and New York’s Marriage Equality Law, enacted in 2011, makes clear that same-sex and different-sex marriages are to be treated the same, a point driven home as a matter of constitutional rights by the U.S. Supreme Court’s 2015 Obergefell decision.

New York courts have several times used the doctrine of “comity” to rule that somebody who is a parent of a child under the law of another state will be recognized as their parent in New York, despite the precedent of the Alison D. case. Under California law, when a registered domestic partner gives birth to a child her partner is presumed to be a legal parent of the child and, of course, when a married woman gives birth to a child in California, her legal spouse is presumptively the child’s parent.  The family court found that both of these presumptions applied in this case, and the Appellate Division agreed.

The court rejected Farah’s argument that failure to comply with the statutory donor insemination procedures of the two states would bar Kelly from parental status, pointing out that court decisions in both California and New York establish that the donor insemination statutes are not the exclusive way to create parental rights. These laws provide that partners of birth mothers who comply with the statutory requirements will obtain parental status, but don’t explicitly provide that failure to comply will forfeit any claim to parental status. The general rule for recognition of parental status in New York for a child born in a sister state is comity unless there is a strong public policy reason for New York to refuse to recognize the status.  California law clearly provides that a child born to a woman who has a registered domestic partner is also the child of the partner, and similarly, of course, that a child born to a married woman is the child of her spouse, and New York courts have extended comity in such situations in the past.  In this case, since Kelly was listed on both birth certificates and the children were given her surname, it is clear that the parties intended that she be a parent of both children when they were born.

The Appellate Division also upheld Judge Poulos’s decision to dismiss Farah’s paternity petition. Poulos determined that Farah filed the “in an attempt to terminate Kelly S.’s parental rights.”  But this would be inconsistent with the ultimate factual findings in the case.  Wrote Justice Roman, “The record reflects that the parties made an informed, mutual decision to conceive the subject children via artificial insemination and to raise them together, first while in a registered domestic partnership in California, and, later, while legally married in that state.  Additionally, the children were given Kelly S.’s surname, Kelly S. was named as a parent on each birth certificate, and the parties raised the children from the time of their births, in March 2007 and April 2009, respectively, until the parties separated in or around the summer of 2013.  Under the circumstances presented, the court properly determined that Farah M. may not rebut the presumption of parentage in favor of Kelly S. arising under California law by filing paternity petitions against the sperm donor and correctly determined that Kelly S. has standing to seek visitation with the subject children at a best interests hearing.”

Kelly Steagall’s appellate attorney is Christopher J. Chimeri of Hauppague, N.Y. Farah Martin is represented by Sari M. Friedman of Garden City.  Regina M. Stanton was appointed by the court to represent the interest of the children.  Friedman told Newsday that she doubted her client would appeal, but she criticized the decision as “not good law.”  Steagall told Newsday, “As unfortunate as the situation is, I’m happy that some good came out of my rough situation and could help families in the future.”

The New York Court of Appeals will hear oral argument on June 2, 2016, in Matter of Brooke S.B. v. Elizabeth A. C.C., an appeal challenging the continued validity of Alison D. v. Virginia M. The Court of Appeals gave leave to appeal a ruling by the Buffalo-based Appellate Division, 4th Department, Matter of Barone v. Chapman-Cleland, 129 A.D. 3d 1578, 10 N.Y.S.3d 380 (June 19, 2015), which had matter-of-factly applied the Alison D. precedent to hold that a lesbian co-parent lacked standing to seek custody and visitation with her son.  The Court of Appeals reaffirmed the holding of Alison D. as recently as 2010, in Debra H. v. Janice R., 14 N.Y.3d 576, but since then Democratic Governor Andrew Cuomo has appointed six new judges of the seven-member court, leaving only one appointee by former Republican Governor George Pataki on the bench, an almost complete turnover of membership since Alison D. was last affirmed, so it is highly possible that the court granted leave to appeal with a view to overruling the obsolete precedent.

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Mississippi Defies the 1st Amendment with “Freedom of Conscience” Law

On April 5 Mississippi Governor Phil Bryant signed into law H.B. 1523, a measure that received overwhelming approval in both houses of the state legislature.  Titled the “Protecting Freedom of Conscience From Government Discrimination Act,” the law was clearly intended to encourage businesses and individuals in the state to discriminate against same-sex couples, LGBT people, and even sexually-active unmarried heterosexuals.

Despite the broad wording of its title, the measure does not on its face protect freedom of conscience in general.  Instead, in Section 2, the legislature stated that “the sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that (a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  The first of these, of course, defies the Supreme Court’s 2015 ruling, Obergefell v. Hodges, that same-sex couples have a constitutional right to marry.  The second defies the 2003 ruling, Lawrence v. Texas, which held that the state may not penalize sexual relations between consenting adults in private, regardless of their sex.  And the third defies the general medical consensus that gender identity is a human characteristic that exists apart from biological sex in terms of anatomy and genetics.

The law does not specify how it will be determined that somebody sincerely holds these beliefs or is merely asserting them opportunistically to avoid liability for mistreating somebody.

In effect, Mississippi has moved to protect from any adverse consequences at the hands of the state anybody who sincerely believes that a person born with a penis can only be considered a man for the rest of their life, and similarly a person born with a vagina can only be considered a woman.  This takes things one step further than North Carolina, which provided in its notorious H.B. 2, enacted in March, that “biological sex” means the sex indicated on a person’s birth certificate.  Since North Carolina will allow people to obtain new birth certificates consistent with their gender identity upon medical certification of surgical transition, that state evidently does not officially believe that sex is quite so “immutable.”

The new law goes on to protect people who act on these beliefs in various ways.  For example, religious organizations and clergy can refuse to have anything to do with same-sex marriages, including refusing to provide facilities or services in connection with same-sex marriage or to married same-sex couples.  Businesses can refuse to provide their goods or services or accommodations to same-sex couples, and can exclude transgender people from the use of single-sex-designated facilities consistent with their gender identity.  Nobody can be subjected to loss of their tax-exempt status or denial of government contracts or benefits because they have these “protected” beliefs.  People who spout anti-LGBT rhetoric will be protected from adverse consequences as well.  They can’t be fired from government jobs for articulating such beliefs, for example.

Government employees whose jobs involve authorizing or licensing marriages can seek “recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction” as defined in the statute, provided they send a written notice of such recusal to the State Registrar of Vital Records. They may not suffer any adverse consequences for recusing themselves, but “the person who is recusing himself or herself shall take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.”  Apparently, then, the person recusing themselves is responsible for being sure that somebody else who is willing to perform their duty is available to do so when the service is needed.  This provision is undoubtedly intended to shield the state from liability for refusing to provide a service that same-sex couples have a constitutional right to receive.

The law also relieves people who officiate at weddings from any obligation to perform ceremonies in violation of their sincerely held religious or moral beliefs about the invalidity of same-sex marriages. This presumably would include refusing to officiate if one of the prospective spouses is transgender and that raises religious or moral objections for the officiant because of their lack of belief in the reality of the individual’s gender identity.  OF course, such protection is completely superfluous, since nobody would seriously contend that the government can compel clergy to perform services.

The “discriminatory action” that the government is not allowed to take against people holding and acting on these beliefs goes far beyond taxes to encompass any state benefit, license, certification, accreditation, custody award or agreement, and on and on and on. The list seems to anticipate the variety of cases that have arisen around the country over the past few years in which people have suffered adverse consequences because of their religious objections to homosexuality or same-sex marriage.  For example, some people have been expelled from graduate counseling programs for refusing to provide non-judgmental counseling to gay clients, and such expulsions would clearly be prohibited by this law.  The law would also forbid denying government employment to anybody because of these sincerely held religious beliefs by the prospective employee.

The practical effect is to say that married same-sex couples can be denied a host of benefits and entitlements under a variety of programs, in blatant violation of the Supreme Court’s decision in Obergefell. Ironically, this law was enacted just days after a federal district judge in Mississippi ruled that the state’s ban on adoption of children by same-sex married couples violates the 14th Amendment in light of Obergefell.   And the law erects a structure somewhat akin to apartheid around same-sex marriages.

The measure seems clearly unconstitutional under the Establishment Clause of the 1st Amendment, since it exalts and privileges particular religious beliefs and those who hold them for “special rights.”  On the other hand, some of the law is “merely” symbolic for several reasons.  First, since neither Mississippi nor any of its political subdivisions expressly outlaws discrimination in employment, housing or public accommodations because of sexual orientation or gender identity, people or businesses acting to deny goods, services or accommodations to LGBT people and same-sex couples could do so freely without any consequence under state law before this measure was enacted.  Second, due to the Supremacy Clause of the federal constitution, federal constitutional and statutory rights take priority over state law.

Thus, for example, under Title IX of the U.S. Education Amendments Act as interpreted by the U.S. Department of Education, educational institutions in Mississippi that receive federal money (which would be just about all of them) may not discriminate against transgender individuals because of their gender identity, and under Title VII of the Civil Rights Act of 1964 as interpreted by the Equal Employment Opportunity Commission and the U.S. Department of Justice, employers in Mississippi may not discrimination because of sexual orientation or gender identity.

And, of course, as a federal court ruled days earlier, state policies denying equal rights and benefits to married same-sex couples can be challenged under the 14th Amendment’s Equal Protection Clause.

The main question now is who will file for the first lawsuit to challenge this travesty. Robbie Kaplan, the fearless slayer of DOMA, victorious advocate in the Mississippi marriage equality lawsuit, and representative of the plaintiffs in the same-sex parents adoption case, would be our candidate.

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