New York Law School

Art Leonard Observations

Arizona Supreme Court Holds Parental Presumption Applies to Lesbian Married Couples

 

Resolving a difference of views between two panels of the state’s intermediate Court of Appeals, the Arizona Supreme Court ruled on September 19 that state statutes providing that the husband of a woman who gives birth to a child after undergoing donor insemination with the husband’s consent is a legal parent of the child must extend equally to the wife of a woman who gives birth to a child after undergoing anonymous donor insemination with her wife’s consent. The ruling in McLaughlin v. McLaughlin, 2017 WL 4126939, is a logical application of the U.S. Supreme Court’s June 26, 2017, ruling in Pavan v. Smith, which dealt affirmatively with the related question whether a state must recognize the parental status of a same-sex spouse by listing her as a parent on the child’s birth certificate, and of course was ultimately governed by the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.

The Supreme Court made clear in Pavan that the constitutional right for same-sex couples to marry, earlier recognized by the Court in Obergefell in 2015, is not just about the right to marry and have other states recognize the marriage, but also about the right to enjoy all the benefits and be subject to all the obligations of marriage on an equal basis with different-sex couples.  Applying this principal to an Arizona parentage statute that, by its terms, only applies to the parental rights of men, the Arizona court adopted a gender-neutral construction of the statute, rejecting the argument by one partially dissenting judge that correcting the statute’s constitutional flaw should be left to the legislature.

Kimberly and Suzan were married in California in 2008, during the five-month period between the California Supreme Court’s In re Marriage Cases decision and the adoption of Proposition 8, which enacted a constitutional amendment limiting marriage to different-sex couples.  The California Supreme Court subsequently ruled that the same-sex marriages contracted during that five-month period, such as the McLaughlin marriage, were fully valid under California law.  The women decided to have a child together.  Suzan went through donor insemination, but unsuccessfully.  Kimberly then went through the procedure and became pregnant.  They moved to Arizona during the pregnancy.

Before the birth of their child, they signed a joint parenting agreement in February 2011, in which they declared that Suzan would be a “co-parent” of the child, stating: “Kimberly McLaughlin intends for Suzan McLaughlin to be a second parent to her child, with the same rights, responsibilities, and obligations that a biological parent would have to her child” and that “should the relationship between us end, it is the parties’ intention that the parenting relationship between Suzan McLaughlin and the child shall continue with shared custody, regular visitation, and child support proportional to custody time and income.” State courts generally take the position that such parenting contracts, while evidence of the intent of the parties, is not binding on the court in a subsequent custody determination during a divorce, where the court’s legal role is to determine custody and visitation issues based on the court’s evaluation of the child’s best interests. The women also executed wills naming Suzanne as a part of the child, a boy who was born in June 2011.

Kimberly, a doctor, worked to support the family, and Suzan stayed at home to care for the baby. By the time the child was almost two years old in 2013, the women’s relationship had deteriorated and Kimberly moved out with the child, cutting off Suzan’s contact with her son.  Suzan then filed petitions in state court seeking dissolution of the marriage and legal decision-making and parenting time with the child.  She couldn’t file for a divorce, because Arizona did not recognize same-sex marriages at that time.  She included a constitutional challenge to the state’s anti-gay marriage laws in her lawsuit, and the state intervened to defend its laws.

While Suzan’s case was pending, a federal district court in Arizona declared the state’s same-sex marriage ban unconstitutional, a result upheld by the 9th Circuit Court of Appeals, and the Supreme Court subsequently denied in November 2014 an attempt by other states in the circuit to get the 9th Circuit’s marriage equality rulings reversed.  Of course, on June 26, 2015, the U.S. Supreme Court’s marriage equality ruling in Obergefell made clear that Arizona would have to recognize Suzan and Kimberly’s California marriage under its divorce and custody laws.  The state dropped its intervention in the case, and Suzan’s lawsuit turned into a divorce case.  But the question remained about her status as a parent to the child, to whom she is not biologically related.

The trial judge in Pima County, Lori B. Jones, confronted a parentage statute stating that “a man is presumed to be the father of the child if he and the mother of the child were married at any time in the ten months immediately preceding the birth or the child is born within ten months after the marriage is terminated.” The parental status under the statute is legal, not biological, although a man could rebut the legal presumption by showing that another man was the biological father or that his wife had conceived through donor insemination without his consent. However, the Arizona laws made clear that if a husband consented to his wife’s donor insemination, he would be presumed to be the child’s legal father.  The problem was the gendered language of the statute.

Wrote Arizona Supreme Court Chief Justice Scott Bales in describing the trial court’s reasoning in ruling in favor of Suzan, “Based on Obergefell, the court reasoned that it would violate Suzan’s Fourteenth Amendment rights not to afford her the same presumption of paternity that applies to a similarly situated man in an opposite-sex marriage.”  Judge Jones also concluded that in this kind of case the birth mother should not be allowed to attempt to rebut the presumption where it was undisputed that her same-sex spouse had consented to the insemination process and would be obligated to contribute to the support of the child.

Kimberly sought relief from the court of appeals, which was denied. That court both agreed with Judge Jones’ reasoning on the Fourteenth Amendment issue and further reasoned that Kimberly should be “equitably estopped from rebutting Suzan’s presumption of parentage.”  Equitable estoppel is a legal doctrine that courts invoke to prevent a party from attempting to assert a legal right that would be contrary to their prior representations and actions.  In this case, since Kimberly consented to the insemination and contracted with Suzan to recognize her full parental rights toward the child, she could not now turned around and attempt to avoid those actions by showing that Suzan was not the child’s biological father, which Suzan clearly is not.

After the court of appeals issued it opinion in this case, a different division of the state’s court of appeals released a contrary ruling in Turner v. Steiner, 242 Ariz. 494 (2017). By a 2-1 vote, that court “concluded that a female same-sex spouse could not be presumed a legal parent [under the statute] because the presumption is based on biological differences between men and women and Obergefell does not require courts to interpret paternity statutes in a gender-neutral manner.”

The Arizona Supreme Court granted Kemberly’s petition to appeal the court of appeals ruling because application of the parentage statute to same-sex marriages “is a recurring issue of statewide importance.”

Chief Justice Bales’s opinion for the court made clear that one could easily resolve this dispute in favor of Suzan without even referring to the recent U.S. Supreme Court decision in Pavan, because the earlier Obergefell opinion by Justice Anthony Kennedy addressed all the salient issues in very clear language.  The idea that Obergefell required only that states allow same-sex couples to marry and recognize as valid legally-contracted same-sex marriages from other states was contrary to the language and reasoning of the Supreme Court.  “In Obergefell,” wrote Bales, “the Court repeatedly framed both the issue and its holding in terms of whether states can deny same-sex couples the same ‘right’ to marriage afforded opposite-sex couples.”  For example, quoting from Kennedy’s opinion: “The Constitution does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex,” and further, wrote Bales, “noting harms that result from denying same-sex couples the ‘same legal treatment as opposite-sex couples.’”  In particular, the Supreme Court had emphasized the importance to children of same-sex couples have equal recognition of their families.

“Such broad statements reflect that the plaintiffs in Obergefell sought more than just recognition of same-sex marriages,” wrote Bales, noting that the Michigan plaintiffs in one of the cases consolidated before the Court were a same-sex couple who sought to marry to secure the parental status of both of them to the children they were jointly raising, and, continued Bales, “the benefits attendant to marriage were expressly part of the Court’s rationale for concluding that the Constitution does not permit states to bar same-sex couples from marriage ‘on the same terms.’  It would be inconsistent with Obergefell,” he continued, “to conclude that same-sex couples can legally marry but states can then deny them the same benefits of marriage afforded opposite-sex couples.”  The subsequent decision in Pavan, the Arkansas birth certificate case, just drove home the point in the specific context of parental status and rights.

The Arkansas Supreme Court concluded that the benefit of the parental presumption that is enjoyed by the spouse of a woman who gives birth is one of the “benefits of marriage” that must be equally afforded to same-sex couples. It rejected Kimberly’s argument, similar to that of the other panel of the Arizona Court of Appeals, that the statute dealt only with biological parentage.  This was never a particularly logical argument, since the overall statutory scheme in Arizona extended the parental presumption to situations where the man was not the child’s biological father, making it conclusive when he had consented to his wife’s insemination with donor sperm.

The court then faced the question whether the statute should just be struck down as unconstitutional, terminating any parental presumption, or extended through a gender-neutral interpretation to apply to same-sex couples. The court decided that extending the statute was more in line with the legislature’s overall purpose than would be striking it down.  The goal, after all, was to support families and solidify parent-child ties, which was best achieved by extending the parental presumption to lesbian couples.  Thus, the court vacated the decision of the court of appeals and affirmed the decision of Pima County Superior Court Judge Jones, upholding Suzan’s parental status and rights, with details to be worked out in the trial court, hopefully by agreement of the ex-spouses.

The court lost one member on this last point, as Justice Clint Bolick argued in partial dissent that the court was exceeding its role by improperly reinterpreting statutory language to cure the constitutional problem. “The marital presumption that the majority finds unconstitutional and rewrites is not, as the majority characterizes it, a ‘state-benefit statute,’” he insisted.  “Rather, it is part of an integrated, comprehensive statute that serves the highly important and wholly legitimate purpose of providing a mechanism to establish a father’s rights and obligations.”  Viewed on its own, he insisted, it was not unconstitutional.  “A paternity statute does not offend the Constitution because only men can be fathers,” he said, pointing to another opinion by Justice Kennedy in a case upholding different rules for determining a child’s U.S. citizenship based on the citizenship of the mother or the father in a marriage between citizens of different countries.  The majority had rejected Kimberly’s reliance on this decision, but Bolick contended that “it is not the paternity statute that is unconstitutional, but rather the absence of a mechanism to provide parenthood opportunities to single-sex couples on equal terms appropriate to their circumstances.”  He would leave it to the legislature to fix the problem.  Bolick would send the case to the trial court to be decided without any parental presumption, presumably (since he doesn’t spell it out)  leaving the trial court to determine whether it was in the best interest of the child for the woman who was formerly married to the child’s birth mother to have decision-making and visitation rights.

Suzan is represented by the National Center for Lesbian Rights, whose legal director, Shannon Minter, argued the case in the Arizona Supreme Court, assisted by staff attorneys Emily Haan and Catherina Sakimora, with local counsel Claudia D. Work of Campbell Law Group in Phoenix. Kimberly is represented by Keith Berkshire and Erica L. Gadberry of Berkshire Law Office in Phoenix.   Several amicus briefs were filed with the court, including briefs from the ACLU, a University of Arizona law school clinic, and a group of Arizona Family Law Practitioners.

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ACLU Reboots Gavin Grimm Challenge to Gloucester School Board Policy

On August 2, the Richmond-based 4th Circuit Court of Appeals announced that instead of holding oral argument in Gavin Grimm’s lawsuit challenging the Gloucester County School Board’s bathroom access policy, it was sending the case back to the district court for a determination whether Grimm’s recent graduation from high school made the appeal moot.  Did Grimm still have standing to seek the injunctive relief that he sought? Grimm v. Gloucester County School Board, 2017 U.S. App. LEXIS 14158.  The three-judge panel had tentatively scheduled an oral argument for September to consider yet again whether Senior U.S. District Judge Robert G. Doumar erred when he dismissed Grimm’s Title IX sex discrimination claim against the Gloucester County School Board and denied Grimm’s motion for a preliminary injunction. The circuit panel speculated that its jurisdiction to decide the case may have been ended by Grimm’s graduation, but that it was not clear from the record before the court and the supplemental briefs filed by the parties earlier in July whether this is so, and the court concluded that more fact-finding was necessary before the issue of its jurisdiction could be decided.  A week later, however, Grimm’s lawyers from the ACLU agreed with the School Board to end the appeal concerning the preliminary injunction, submitting a stipulation to the 4th Circuit to that effect, resulting in a one-sentence order by that court dismissing the appeal.  Grimm v. Gloucester Bounty School Board, 2017 U.S. App. LEXIS 16697 (4th Cir. Aug. 30, 3017).  But they did not agree to end the case, instead filing an amended complaint on August 11, of which more details follow below.

Grimm’s mother originally filed suit on his behalf against the school board in July 2015, during the summer before his junior year, alleging that the Board’s policy of requiring students to use restrooms based on their biological sex rather than their gender identity violated Grimm’s right to be free of sex discrimination forbidden under Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14th Amendment.  Grimm sought a preliminary injunction so he could resume using the boys’ restrooms at the high school while the case was pending.  The Board moved to dismiss, arguing that Title IX did not apply to this dispute and that its action did not violate the Constitution.  Judge Doumar ruled on September 17, 2015, in favor of the Board’s motion to dismiss the Title IX claim, while reserving judgment on the 14th Amendment claim, and denied Grimm’s motion for a preliminary injunction to allow him to use the boys’ bathrooms as he appealed the dismissal.  While the case was pending before Judge Doumar, the U.S. Departments of Education and Justice filed a joint statement with the court supporting Grimm’s claim that barring him from using the boys’ bathrooms violated Title IX.

Ruling on Grimm’s appeal of the dismissal on April 19, 2016, the 4th Circuit focused on the document issued by the federal agencies, finding that the district court should have deferred to their interpretation of the Title IX regulations, finding it to be a reasonable interpretation of the regulations.  The court reversed Judge Doumar’s dismissal of the Title IX claim, and sent the case back to Doumar to reconsider Grimm’s request for a preliminary injunction.  Shortly thereafter, the Departments of Education and Justice sent a joint “Dear Colleague” letter to all the nation’s public schools that receive federal funds, more formally stating their position on Title IX coverage of the transgender facilities access issue and other issues relevant to equal educational opportunity for transgender students.  Responding to the Circuit’s remand, Doumar issued a preliminary injunction on June 23, 2016, too late to get Grimm access to the boys’ bathrooms during his junior year but potentially ensuring that he could use appropriate bathrooms at the high school during his senior year.  But that was not to be.  Even though Judge Doumar and the 4th Circuit refused to stay the preliminary injunction while the case was on appeal, the School Board successfully petitioned the Supreme Court for a stay while it prepared to file a petition to have the Supreme Court review the 4th Circuit’s ruling.  Thus, as the 2016-17 school year began, Grimm was still barred from using the boys’ bathrooms at his high school.

The Supreme Court subsequently granted the Board’s petition to review the 4th Circuit’s decision, continuing the stay of the preliminary injunction, and scheduled an oral argument to take place on March 28, 2017.  Meanwhile, Donald Trump was elected president, took office in January, and appointed Jeff Sessions to be Attorney General and Betsy DeVos to be Secretary of Education.  Sessions and DeVos disagreed with the Obama Administration’s interpretation of Title IX, and on February 22 they announced that the Departments of Education and Justice were “withdrawing” the Obama Administration’s “Dear Colleague” letter and issuing a new one that, in effect, took no position on the appropriate interpretation of Title IX, instead stating that the question of bathroom access in public schools should be decided by the states and localities, not the federal government.  The Supreme Court reacted to this development by granting the Solicitor General’s subsequent request to cancel the oral argument, vacated the 4th Circuit’s decision, and sent the case back to the 4th Circuit to address the merits of Grimm’s appeal as a matter of judicial interpretation of the relevant statutory and regulatory provisions, there no longer being an executive branch interpretation to which the court need defer. The 4th Circuit directed the district court to quash the preliminary injunction and tentatively scheduled an argument to be held in September.  After Grimm graduated in June, the parties filed supplemental briefs to update the court on what had happened since it last considered the case.

The School Board argued that the case had become moot because Grimm had graduated. “The School Board argues that, absent any allegation of a ‘particular intention to return to school after graduation,’ this change of status deprives Grimm of a continued interest in the litigation, rendering the case moot,” wrote the court in its brief order issued on August 2.  “The School Board states further that its bathroom policy does not necessarily apply to alumni, and that the issue of whether the policy is applicable to alumni is not yet ripe for adjudication.”  Grimm responded that it was enough that his possible “future attendance at alumni and school-community events” at the high school gave him a continuing concrete interest in obtaining the injunctive relief he was seeking in this lawsuit.  He also pointed out that the School Board’s “noncommittal statement” that the policy did “not necessarily apply” to alumni “falls short of a representation that the Board will voluntarily cease discriminating against” him.

The court does not have jurisdiction of the case unless there is an “actual case or controversy” between the parties. The Supreme Court has established that this means that the plaintiff, Grimm, must have a concrete interest in the outcome, which would mean that the policy he is challenging must actually affect him personally.  “Thus,” wrote the court, “a crucial threshold question arises in this appeal whether ‘one or both of the parties plainly lack a continuing interest’ in the resolution of this case such that it has become moot.”  The court decided that “the facts on which our jurisdiction could be decided are not in the record before us.”  The factual record in this case consisted of the sworn allegations that were presented to the district court in 2015 when it was ruling on the Board’s motion to dismiss the case, when Grimm was but a rising junior at the high school.  Thus, the 4th Circuit panel decided it was necessary to send the case back to the district court for “factual development of the record by the district court and possibly additional jurisdictional discovery.”  They were not sending the case back for a new ruling by the district court on the merits, just for a ruling on the question of mootness after additional fact-finding.  Any determination by Judge Doumar that the case was moot could, of course, be appealed by Grimm.

But litigating over the issue of mootness with respect to the preliminary injunction did not strike the ACLU as the best approach at this point in the litigation, so it secured agreement from the School Board to move the 4th Circuit to dismiss the appeal, and proceeded to file an amended complaint.  The new complaint supplements the original complaint with factual allegations bringing the story up to date, culminating with the following: “As an alumnus with close ties to the community, Gavin will continue to be on school grounds when attending football games, alumni activities, or social events with friends who are still in high school.”  This would support his continuing personal stake in the issue of appropriate restroom access at the school.  The complaint restates 14th Amendment and Title IX as sources of legal authority for the argument that the school board’s policy violates federal law.  The request for relief is reframed to reflect Grimm’s alumni status, seeking a declaration that the policy is illegal, nominal damages (symbolic of the injury done to Grimm by denying him appropriate restroom access), a permanent injunction allowing Grimm to use the same restrooms as “other male alumni,” his reasonable litigation costs and attorneys’ fees, and “such other relief as the Court deems just and proper.”  The school board can be expected to move to dismiss the amended complaint with the argument it made to the court in suggesting that the case was moot, but this time the standing question will be litigated solely with respect to Grimm’s alumni status going forward.

It appears from the docket number stamped on the amended complaint by the court clerk’s office, 4:15-cv-00054-AWA-DEM, that the case is now assigned to District Judge Arenda L. Wright Allen, who was appointed by President Obama in 2011. Judge Doumar, 87, who issued the earlier rulings for the district court, is a senior judge who was appointed by Ronald Reagan in 1981.

While this litigation drama was unfolding in Gloucester County, the Chicago-based 7th Circuit Court of Appeals ruled on May 30 in Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034, that Title IX prohibits a public school from refusing to let transgender students use bathrooms appropriate for their gender identity, so the issue has percolated further elsewhere in the country. The Kenosha School District filed a petition for certiorari with the Supreme Court on August 25.  So it is distinctly possible, that the action on this issue will move there and this case may well end up being put “on hold” by the court if the Supreme Court agrees to hear the Kenosha appeal.

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Federal Court Refuses to Enjoin School District from Allowing Transgender Students to Use Facilities Consistent With Their Gender Identity

After rendering a bench ruling in mid-August in anticipation of the approaching resumption of school for the fall semester, U.S. District Judge Edward G. Smith released a lengthy opinion (running over 75 pages in LEXIS) on August 25, explaining why he was denying a preliminary injunction motion by plaintiffs in Doe v. Boyertown Area School District, 2017 U.S. Dist. LEXIS 137317, 2017 WL 3675418 (E.D. Pa.), in which the plaintiffs, cisgender students and their parents, sought to block the school district’s unwritten policy of allowing transgender students to use bathroom and changing room facilities consistent with their gender identity.

Alliance Defending Freedom (ADF), a non-profit law firm self-identified with conservative Christian principles which has filed similar lawsuits against other school districts, represents the plaintiffs in arguing that constitutional and common law privacy rights of the students are violated by the school district’s policy. In addition to local attorneys representing the school district, intervenors on behalf of defendants are represented by attorneys from the ACLU’s LGBT Rights Project and ACLU of Pennsylvania with cooperating attorneys from Cozen O’Connor’s New York and Philadelphia offices.

This case presents in many respects a mirror image of the lawsuits brought by transgender teens seeking the right to use bathroom and changing facilities at their high schools consistent with their gender identity. In both kinds of cases, testimony is presented that the plaintiffs have suffered emotional and physical harm because the schools’ usage policy interferes with their ability to use a convenient, non-stigmatizing restroom when they need it.  In this case, cisgender students affirmed that they were so traumatized at the prospect of encountering a “student of the other sex” – as they insist on calling transgender students – in the restroom or locker room, that they avoid using the facilities altogether during the school day, and the fear of such encounters haunts them throughout the day.  The court rejected the underlying premise, because Boyertown Area High School (referred to by the acronym BASH throughout the opinion) has provided numerous single-user facilities and alternative locations that would accommodate the plaintiffs’ concerns, and has made physical alterations in the common facilities to enhance the ability of individuals to avoid exposing themselves unclothed (fully or partially) to other students.  The plaintiffs’ position is to argue that transgender boys are really girls, and transgender girls are really boys, and the traditional of sex-segregated restroom and locker-room facilities most be preserved in order to protect the long-recognized privacy interests of cisgender people.  But to the court, the issue for decision in August 2017 had to be based on the facilities available for the upcoming academic year, as to which alterations and additions have changed the situation since the incidents during the 2016-17 school year that gave rise to the lawsuit.

The court sets out the factual allegations in great detail, including findings that this writer – having attended high school in the 1960s – found startling, such as a finding that few of the students at the high school actually use the showers after their gym classes. (When this writer attended high school, showering after gym was mandatory and closely monitored by the coaches, and the required freshman swimming course at his college prohibited students in the class from wearing anything in the pool.)  Another startling finding: that the high school, even before the recent renovations, had several single-user restrooms available to students, and not just in the nurse’s and administrative offices, so that any student seeking absolute privacy for their restroom needs could easily avail themselves of such facilities.

This lawsuit can be traced to several instances during the Fall Semester of 2016 when plaintiffs claim to have been startled, abashed, and disturbed to discover students whom they considered to be of the opposite sex in the locker room or restroom, leading them to approach administrators to complain and subsequently to involve their parents in further complaints. The transgender students were in these facilities after having obtained permission from school administrators who had determined that the students had sufficiently transitioned to make it appropriate. The administrators were determining, on a case-by-case basis, the students in question had transitioned sufficiently that it would have been awkward, unsettling, and perhaps even dangerous to them for them to use facilities consistent with the sex originally noted on their birth certificates.

The evidence presented to the court was that transgender students went through a transitional facilities usage period as they were transitioning in their gender presentation, generally preferring the single-user facilities until their transition was far enough along that they would feel more comfortable using facilities consistent with their gender expression and expected their presence would not cause problems. Indeed, there was testimony that when one transgender boy went into the girls’ restroom, he was chased out by the girls, who perceived him a boy and didn’t want him in there! Because surgical transition is not available under established standards of care before age 18, none of the transgender students at the high school had genital surgery, so their transitions were based on puberty-blocking drugs, hormones, grooming and dress.  One suspects that parents particularly objected to the presence of transgender girls who still had male genitals in the girls’ facilities, but there were no allegations that any transgender girl was exposing male genitals to the view of others in the common facilities.

When the issue arose and the administrators had to respond to a handful of protesting students and parents, they had long since received the “Dear Colleague” letter sent out by the Obama Administration’s Education and Justice Departments in May 2016, which advised that Title IX required public schools to accommodate transgender students by allowing them to use restrooms consistent with their gender identity and presentation. The Boyertown administrators, who did not seek authorization from the school board prior to problems arising, treated that letter as “the law of the land” and informally extended approval on a case-by-case basis to transgender students seeking permission to use appropriate facilities, a phenomenon which began to surface in that school district prior to the 2016 school year.  Not only did they refrain from adopting a formal written policy, but they also refrained from announcing the school’s policy to the student body or parents generally.  Thus, it is not surprising that some students were startled to encounter students who they considered to be of the “wrong sex” in their facilities.  The response of the administrators to the complaints was the this was the school’s policy and the students should just treat the situation as natural and adjust to it, which some students and their parents found unacceptable.

After the issue blew up during the 2016-2017 school year, the board of education voted 6-3 to back up the administrators, but there was still no formal written policy, and the school actually refused a demand by some parents to produce a written policy. Although the Trump Administration “withdrew” the Obama Administration’s interpretation of Title XI, the substitute letter issued in 2017 did not take a firm position on whether Title IX required such accommodations, merely asserting that the matter required further “study” and should be left to state and local officials to decide.  The Boyertown administrators decided to continue the policy they were following.  This lawsuit was first filed in March 2017, with an amended complaint adding more plaintiffs on April 18.

The complaint asserted claims under the 14th Amendment, Title IX, and Pennsylvania common and statutory law (the Public School Code, which mandates that public schools provide separate facilities for boys and girls).  They claimed a substantive due process violation (privacy), hostile environment sex discrimination in violation of Title IX, and Pennsylvania common law invasion of privacy in violation of public policy.

Judge Smith’s opinion thoroughly dissects the plaintiff’s arguments and carefully distinguishes the cases they cite as precedents, taking the perspective that the issue in deciding the motion for preliminary injunction is whether to preserve the status quo (the school district’s current policy of allowing transgender students, with permission given on a case-by-case basis depending upon their stage of transition and gender presentation, to the use the facilities with which they are comfortable), or to upset the status quo by requiring transgender students to restrict themselves to using single-user facilities or those consistent with their sex as identified at birth. There is a strong bias in considering preliminary injunctions in favor of preserving the status quo, so the plaintiffs had a heavy burden to persuade the court that they were likely to prevail on the merits of their claim in an ultimate ruling, and that the status quo policy inflicted real harm on them that would outweigh the harm that halting the policy would impose on the transgender students and the district.  As to both of those issues, Judge Smith found that plaintiffs had failed to make their case.

In particular, the school’s alteration and expansion of its facilities had significantly undermined the privacy arguments, and the court easily rejected the contention that the possibility of encountering one of about half a dozen transgender students in a high school with well over a thousand students had created a “hostile environment” for cisgender students. The court also noted that the common law privacy precedents concerned situations where the individual defendants had physically invaded the private space of the plaintiffs.  In this case, the individual defendants are school administrators, none of whom had personally invaded the private space of students using restroom and locker room facilities.

Judge Smith devoted a substantial portion of his opinion to recounting expert testimony, presenting a virtual primer on the phenomena of gender identity, gender dysphoria, and transition from a medical and social perspective. The opinion clearly and strongly rejects the plaintiffs’ argument that this case is about boys invading girls’ facilities or vice versa.  The tone and detail of the opinion reflect the considerable progress that has been made in educating courts and the public about these issues.

On the plaintiff’s likelihood of ultimately winning their case on the merits, Judge Smith pointed to the most definitive appellate ruling so far on the contested transgender bathroom issue, a recent decision by the U.S. Court of Appeals for the 7th Circuit involving a lawsuit by Ash Whitaker, a transgender student, against the Kenosha (Wisconsin) school district, which the school district asked the Supreme Court to review, coincidentally on the date that Judge Smith released this opinion.  No other federal circuit appeals court has issued a ruling on the merits of the constitutional and Title VII claims being put forth on this issue, although the 4th Circuit had in 2016 dictated deference to the Obama Administration’s interpretation in Gavin Grimm’s lawsuit against the Gloucester County (Virginia) school district, only to have that decision vacated by the Supreme Court last spring after the Trump Administration “withdrew” the Obama Administration’s “Dear Colleague” letter.  That case is still continuing, now focused on a judicial determination of the merits after the filing of an amended complaint by the ACLU.

Because ADF is on a crusade to defeat transgender-friendly facilities policies, it will most likely seek to appeal this denial of injunctive relief to the 3rd Circuit, which has yet to weigh in directly on the issue, although there are conflicting rulings by district courts within the circuit in lawsuits brought by transgender students.  ADF’s first step could be to seek emergency injunctive relief from the Circuit court and, failing that, the Supreme Court (which had during the summer of 2016 granted a stay of the preliminary injunction issued in the Grimm case).  If the Supreme Court grants the Kenosha school district’s petition, as seems likely, the underlying legal issues may be decided during its 2017-18 Term, before the Boyertown case gets to a ruling on the merits of plaintiffs’ claims.

Judge Smith was nominated to the district court by President Obama in 2013, winning confirmation from the Senate in 2014. A substantial part of his prior career involved service as a military judge, followed by a period of private practice and then service as a state court judge.  In his Senate confirmation vote he received more votes from Republicans than Democrats.  The Washington Post reported at the time that Smith was the first Obama judicial nominee to win more Republican than Democratic votes.

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Trump Changes Policy on Military Service by Transgender Individuals

On July 26, to the surprise of Defense Department officials and members of the White House staff, Donald Trump transmitted a series of three tweets beginning at 8:55 a.m. announcing a new policy concerning military service by transgender individuals. “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow……  ….Transgender individuals to serve in any capacity in the U.S. Military.  Our military must be focused on decisive and overwhelming….. ….victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.”  This appeared to be a complete reversal of a policy decision made a year earlier by the Defense Department, which after a period of prolonged study that included a report commissioned from the RAND Corporation (a “think-tank” that specializes in producing studies on defense-related issues by contract with the DoD) and widespread consultations within the military and with military allies that allow transgender individuals to serve had concluded to rescind an existing regulation that established a ban on service by transgendered individuals on purported medical grounds.  As a result of the policy newly announced during June 2016, hundreds of transgender service members “came out” to their superior officers, and some service members who had been concealing their gender identity for years began the process of transition with the assurance that the costs would be covered under military health policies.  Estimates of the number of transgender service members ranged from a few thousand as high as 15,000, most of whom have not yet made their presence known to their commanding officers.  This unknown group likely includes many officers as well as enlisted personnel.

Attempts to discern details of the new policy were at first unsuccessful because neither the usual sources in the White House nor the Pentagon had received any advance notice or details. Admiral Paul F. Zukunft, Commandant of the Coast Guard, immediately announced that the Coast Guard would not “abandon” its several openly-transgender members, and that he and his staff had reached out to reassure them.  The other military service heads and the Chairman of the Joint Chiefs of Staff quickly announced that there would be no change of policy until some formal directive came from the Office of the President.  A spontaneous presidential tweet was not deemed by the Pentagon to be an order to abandon an existing published policy.  The White House finally issued a document titled “Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security” on August 25, signed by President Trump, directing a series of steps that appeared to fall far short of the draconian July 26 tweets.

After a paragraph summarizing what had been done the previous summer and noting that the Secretaries of Defense and Homeland Security had extended a July 1, 2017, date for allowing transgender people to join the military to January 1, 2018, the President stated his reasoning: “In my judgment, the previous Administration failed to identify a sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupting unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year’s policy change would not have those negative effects.”  This was stated in blithe disregard of the fact that over the past year transgender military service members, in reliance on the announced policy change, had come out to their commanders by the hundreds and that there was no evidence during that time of any adverse effect on military operations or unit cohesion, or of significant strain on the military’s budget attributable to this policy change.  There has been no reporting that military commanders had asked to abandon the policy allowing transgender individuals to serve, and there has been no reporting that either Trump or members of his staff have actually reviewed the voluminous materials generated by the review process undertaken by the DoD prior to announcing its change of policy in June 2016, or were reacting to actual data indicating problems over the past year (since there have not been reports of any such problems).

After invoking the president’s powers as Commander in Chief, the Memorandum continues, “I am directing the Secretary of Defense, and the Secretary of Homeland Security with respect to the U.S. Coast Guard, to return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above. The Secretary of Defense, after consulting with the Secretary of Homeland Security, may advise me at any time, in writing, that a change to this policy is warranted.”

The Memorandum then sets out specific “directives,” apparently intended to be the operative provisions of the Memorandum. First is to “maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018, until such time as the Secretary of Defense, after consulting with the Secretary of Homeland Security, provides a recommendation to the contrary that I find convincing.”  In other words, the existing ban on enlisting transgender individuals will continue indefinitely, but can be ended when the Secretary of Defense convinces the president to end it.  Second is to “halt all use of DoD or DHS resources to fund sex reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.” Interestingly, this directive mentions only “sex reassignment surgical procedures” but not any of the other costs associated with gender transition, including hormone treatment, which may reflect either ignorance by the White House staffers who drafted the Memorandum or a deliberate intention to make the exclusion as narrow as possible, focusing only on the political “flashpoint” of surgery. The Memorandum states that this second directive about surgical expenses will take effect on March 23, 2018.  In other words, transgender individuals currently serving will continue to be covered for sex reassignment surgical procedures at least until March 23, 2018, and continuing beyond then if cutting off coverage on that date interferes with completing surgical procedures already under way.  Or at least, that’s what it appears to say.

Third, in the section titled “effective dates and implementation,” the Memorandum gives the Secretary of Defense until February 21, 2018, to submit to the president a “plan for implementing both the general policy set forth in section 1(b) of this memorandum and the specific directives set forth in section 2 of this memorandum. The implementation plan shall adhere to the determinations of the Secretary of Defense, made in consultation with the Secretary of Homeland Security, as to what steps are appropriate and consistent with military effectiveness and lethality, budgetary constraints, and applicable law.  As part of the implementation plan, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall determine how to address transgender individuals currently serving in the United States military.  Until the Secretary has made that determination, no action may be taken against such individuals under the policy set forth in section 1(b) of this memorandum.”  The Memorandum also has a severability provision, the usual disclaimers accompanying presidential directives about not creating new rights or changing the authority of any government departments or agencies, and permission to the Secretary to publish the Memorandum in the Federal Register.  (It was made immediately available on the White House website.)

On a plain reading, the “effective dates and implementation” section appears to mark a substantial retreat from the absolutist tone of the July 26 tweets. In trying to construe the tweets, there had been speculation that transgender service members would be immediately discharged or pressured to resign in order to avoid discharge.  Leaks from the White House while staff members were working on a written guidance for the president to sign led to reports that transgender enlisted personnel would be allowed to serve out their enlistments but then be denied reenlistment while being encouraged to resign earlier, and that transgender officers could continue to serve their commissions but would be required to resign if being considered for promotions.

Based on the leaks, GLBTQ Legal Advocates and Defenders (GLAD), the Boston-based New England public interest law firm, and the National Center for Lesbian Rights (NCLR), based in San Francisco, with cooperating attorneys from Foley Hoag LLP and Wilmer Cutler Pickering Hale & Dorr LLP, filed a lawsuit on August 9 in the U.S. District Court for the District of Columbia, representing five “Jane Doe” plaintiffs, all presently serving transgender individuals, seeking declaratory and injunctive relief. Doe v. Trump, Case 1:17-cv-01597.  The plaintiffs, with varying lengths of service, present compelling stories about the harms the proposed policy would have on them, based, of course, on what was known when the complaint was filed.  Among them, of course, were interference with ongoing transitions, interference with attaining military pensions (which some were close to vesting), and loss of career and benefits, affecting not only the plaintiffs but their family members as well.  There was also the emotional stress generated by uncertainty about their future employment and welfare.

The three-count complaint asserts violations of equal protection and due process (Fifth Amendment) and invokes the doctrine of estoppel to prevent adverse moves against the plaintiffs and those similarly situated as presently serving transgender members of the military who had been encouraged to “come out” as transgender under the earlier policy. The named defendants, in addition to the president, are Secretary of Defense James Mattis, Chairman of the Joint Chiefs of Staff Joseph F. Dunford, Jr., the Departments of the Army, Air Force, and Coast Guard, Army Secretary Ryan D. McCarthy, Air Force Secretary Heather A. Wilson, Homeland Security Secretary Elaine C. Duke, and, for good measure, THE UNITED STATES OF AMERICA.  There was some speculation and criticism that filing the lawsuit before a formal policy was announced or implemented was premature and might result in a dismissal on grounds of standing or ripeness, but the release of the formal guidance just a few weeks after the suit was filed will undoubtedly lead to the filing of an amended complaint focusing more specifically at the changes announced in the Memorandum.  The lengthy delay specified by the Memorandum for implementing changes may be invoked by the Justice Department in seeking to get this case dismissed.  Perhaps the Memorandum was drafted with this strategic use in mind.

Press coverage of the July 26 tweets showed overwhelming opposition and criticism from media, many government officials, and members of both parties in Congress. Those who voiced support of the president’s announcement came from the House Republicans who had waged a losing battle to amend a pending Defense budget measure to ban use of any appropriations to pay for sex reassignment surgery for military members, and there were soon press reports that supporters of that amendment had specifically asked the president to take steps to prevent spending federal funds for this purpose.  Furthermore, it was reported that threats had been made to block passage of the Defense measure – which was intended to provide some funding for the president’s project to “build the wall” along the U.S. border with Mexico (reflecting his ignorance of world history, and most specifically of the spectacular failure of the vaunted “Maginot Line” constructed after World War I to protect France from any future invasion by German military forces) – unless the president prevented military expenditures on sex reassignment procedures.  To the simple-minded president, the solution was obvious.  Reviving a ban on all military service by transgender individuals meant that there would be no openly transgender individuals in the military seeking to have such procedures performed and, since reversing Obama Administration policies regardless of their merits seems to be the main goal of many of Trump’s actions, simply overturning the Obama Administration policy became his simplistic solution to his political problem.  There was no indication that Trump made this decision after consulting “my Generals” or military experts – at least, the White House never revealed the names of any such individuals who were consulted, and it appeared that Secretary Mattis had merely been informed of the president’s intentions the night before the tweets.  One suspects that Trump’s “expert” was likely Steve Bannon, a former Marine.

The August 25 Memorandum did not require the immediate, or even eventual, discharge of anybody, and appeared to give Secretary Mattis wide discretion to come up with an implementing plan and at least six months to do it, while barring any action against transgender service members during the intervening time. Furthermore, in typical “kick the can down the road” Trump style (which is, admittedly, a typical style of U.S. politicians generally, only more pronounced in this president), it leaves open the possibility that the Obama Administration policies will be left in place, provided Mattis asks for this in writing summoning persuasive evidence that nothing is gained and much is lost by preventing transgender individuals from enlisting or being commissioned out of the service academies or by blocking transgender service members (including commissioned officers) from continuing their service.  Press accounts noted that the anticipated expense of covering sex reassignment surgery was dwarfed by the annual military expenditure on Viagra and similar drugs  (Who knew, as Trump might ask, that the Defense Department, the government’s most “macho” agency, was spending so much money to stiffen the limp genitals of male members?), and that the replacement costs for several thousand fully-trained and productive military members would far outweigh the costs of down-time for the relatively small number of individuals at any given time who might be unavailable for assignment while recovering from sex reassignment surgery.  (There is no indication that the other steps in gender transition, including hormone therapy, are disabling in a way that would interfere with military service.)

As worded, the Memorandum leant itself to the interpretation that with the passage of time, as the immediate political problem that “inspired” Trump to emit his tweets had been surmounted, sober heads could prevail, Mattis could reassure the transgender troops that nothing was happening right away, and eventually the president would accept Mattis’s written recommendation to allow transgender individuals to serve after all. (This interpretation depends on Mattis having the fortitude and political courage to tell the president, as he had done during the transition after the election on the subject of torture as an interrogation device, that Trump’s announced position did not make sense as a matter of military policy.)  Of course, the Memorandum directive means continuing discrimination against transgender individuals who seek to enlist, raising serious constitutional issues in light of the increasing recognition by federal courts that gender identity discrimination is a form of sex discrimination in equal protection doctrine, but the Memorandum, as it plays out, could avoid the loss of employment for transgender individuals now serving, although it would pose continuing emotional stress stemming from the uncertainty of future developments until Mattis convinces the president to countermand his new “policy.”

When the GLAD/NCLR suit was filed, other organizations, including Lambda Legal and ACLU, announced that they would be preparing lawsuits as well, and the release of the Memorandum on August 25 led to immediate announcements that more lawsuits will be filed. “See you in court,” wrote ACLU Executive Director Anthony Romero to the organization’s supporters.  As with other “bold” executive actions by Trump, this anti-transgender initiative may be stopped in its tracks by preliminary injunctions, although the Memorandum was evidently drafted to try to minimize that likelihood by suggesting that nothing much is going to happen right away other than the continuing ban on enlistment.  As to the enlistment ban, it is questionable that the original GLAD/NCLR plaintiffs, all currently serving members, have standing to challenge it, but one expects that an amended complaint would add as plaintiffs some transgender individuals who hope to enlist.

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4th Circuit Revives Gay Hate Crime Prosecution

The Richmond-based U.S. Court of Appeals for the 4th Circuit has revived a federal hate crime prosecution against a man who physically assaulted a gay co-worker without provocation at an Amazon Fulfillment Center in Chester, Virginia. U.S. District Judge John A. Gibney, Jr., had dismissed the case, accepting defendant James William Hill, III’s argument that prosecuting him would violate Congress’s constitutional authority to enact legislation under the Commerce Clause, because his conduct was not motivated by any desire to interfere with interstate commerce and was a purely private dispute.  United States v. Hill, 20176 U.S. App. LEXIS 15678, 2017 WL 3575241 (August 18, 2017).

According to the opinion for the appeals court by Judge Dennis W. Shedd, the indictment against Hill alleges that he “willfully caused bodily injury to C.T. because of C.T.’s actual and perceived sexual orientation” in violation of the Hate Crimes Prevention Act of 2009, and that this was sufficient to withstand a motion to dismiss the indictment. An opinion agreeing that the case can be prosecuted but dissenting from the “basis for the judgment” by the panel, was written by Judge James A. Wynne, and provides more factual details about the case.  Wynne charged the majority with failing to confront an important question about the application of the federal hate crimes law that was directly presented by this case.

C.T. was preparing packages for interstate shipment when Hill assaulted him around 7:00 p.m. on May 22, 2015. According to Wynne, “Defendant approached C.T. from behind and – without provocation or warning – repeatedly punched him in the face.  As a result of the attack, C.T. sustained numerous injuries, including a bloody nose, abrasions on his nose and cheeks, and lacerations and bruising around his left eye.  Following the incident, neither Defendant nor C.T. returned to their work stations for the remainder of their ten-hour shifts.  Their absences affected more than 5,500 items, which were either not shipped or not ‘re-binned’ during that time.”  After the incident, Hill provided a statement to Amazon’s staff and subsequently to the Chesterfield County police.  Both times, he stated that he “felt disrespected by C.T. because C.T. was a homosexual; that he does not like homosexuals; and that C.T. deserved to be punched because he was a homosexual.”  “Hill offered no other explanation for the assault,” wrote Judge Wynne.

Because Virginia’s hate crimes law does not cover sexual orientation, the local prosecutor referred the case to the U.S. Attorney. Six months later, the Attorney General (at that time Eric Holder) certified that prosecuting Hill under the federal law “is in the public interest and is necessary to secure substantial justice.”  The case was presented to a federal grand jury, which returned an indictment alleging one count of a violation of the federal hate crime law.  The indictment states that Hill “interfered with commercial and other economic activity in which C.T. was engaged at the time of the conduct” and that the assault “otherwise affected interstate and foreign commerce.”

These statements about commerce may seem strange, but they are necessary in order for the federal Hate Crimes Prevention Act to apply. Congress does not have broad power to enact criminal statutes.  Its power is limited by the categories listed in Article I of the Constitution, which do not include general power to pass criminal statutes.  Congress does have power to regulate interstate commerce, so it justified passing the federal hate crime law by providing that it applies to crimes that somehow affect interstate commerce.

In relation to this case, the crucial language is that the conduct “interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or otherwise affects interstate or foreign commerce.” Judge Gibney concluded, mistakenly, that only an economic crime would fit this jurisdictional requirement.

Writing for the majority of the panel, Judge Shedd found that “the indictment specifically alleges that Hill’s conduct had an effect on interstate commerce,” and as such “is legally sufficient and does not present an unconstitutional exercise of Congressional power.”

Hill’s motion to dismiss the indictment was not a facial challenge to the constitutionality of the law, but rather an “as-applied” challenge, arguing, in effect, that Congress could not constitutionally turn an assault in a private business establishment involving co-workers into a federal offense. The factual question, wrote Shedd, is “whether Hill’s conduct sufficiently affects interstate commerce as to satisfy the constitutional limitations placed on Congress’s Commerce Clause power” and this “may well depend on a consideration of facts, and because the facts proffered here” in the indictment “may or may not be developed at trial, it is premature to determine the constitutional issues.”  Shedd noted prior cases holding that “an indictment that tracks the statutory language is ordinarily valid.”

Thus, it was inappropriate for District Judge Gibney to dismiss an as-applied challenge to the prosecution when the indictment, tracking statutory language, asserted that the assault had “interfered with commercial and other economic activity in which C.T. was engaged at the time of the conduct” and that the assault “otherwise affected interstate and foreign commerce.” This, according to Shedd’s opinion, was sufficient to meet the requirement that a federal indictment inform the defendant of the nature of the crime and allege facts sufficient to meet the statute’s jurisdictional requirement.

“Facts outside of an indictment should not be used to conclusively decide whether an element of a criminal offense is satisfied during a pretrial motion,” wrote Shedd, “and a Congressional statute should not be overturned on an incomplete record.”

This was too timid to satisfy Judge Wynne. “On review to this Court,” he wrote, “the majority opinion now ignores the district court’s basis for dismissing the indictment and instead concludes that, because the government’s indictment sets forth the charged offense in the language of the statute, it satisfies the specificity requirement imposed by Fifth and Sixth Amendments.”

To Wynne, the question posed is: “Whether Congress can enact a statute, pursuant to its authority to regulate interstate commerce, proscribing the physical assault of a victim whose job involves packing products for interstate sale and shipment and who is doing that job at the time of the assault?” Wynne argued that a proper answer to this question would lead to the conclusion that the statute “easily falls under Congress’s broad authority to regulate interstate commerce.”  He cited a recent Supreme Court decision, Taylor v. United States (2016), holding that “Congress has the authority to regulate criminal conduct that interferes with ongoing commercial activity.”

“Cavalierly, the majority ducks the only issue in this case and instead decides an issue that was neither presented by the parties nor addressed by the district court,” he charged. “The only issue in this case is one of first impression and of great importance – it was addressed by the district court and has now been placed squarely before us by the parties.  We should not, on our own volition, create a basis for avoiding it.”

Judge Wynne makes an important point. The 2009 enactment of this statute was the first successful legislative achievement of the Obama Administration’s LGBT rights agenda, and the focus of much agitation by LGBT political groups, but there was always a question whether it would have significant application in the real world beyond a symbolic declaration by Congress that committing a violent crime because of a victim’s sexual orientation was wrong, precisely because of the constitutional limitation on Congress’s authority.

The main practical purpose of the statute was to fill the gap left by the many states that have balked at including sexual orientation in their state hate crimes laws, as is the case with Virginia. Thus far, there have actually been few successful prosecutions under this law, despite the continuing epidemic of anti-gay violence in many parts of the country, because of the limitation that the statute applies only if the jurisdictional requirements are met, and only where local prosecutors are not empowered specifically to prosecute anti-gay hate crimes.  Successful prosecutions have involved crimes committed with cars traveling on interstate highways, or using weapons that had been sold across state lines, but, as Judge Wynne points out, this is the first case to present the question whether a physical assault of one worker against another in a private (that is, non-governmental) workplace is covered by the law.

And, as Judge Wynne pointed out, in a certain sense this case is a no-brainer. This workplace is an Amazon Fulfillment Center, selecting and packaging thousands of goods for shipment to on-line customers in many different states.  Any interruption in workplace activity would clearly affect the shipment of goods in interstate commerce, and an assault that at least temporarily disables the victim from performing his job will clearly interfere with commerce.  Wynne pointed to the cases in which the Supreme Court has found that even a slight interference with commercial activity can provide the basis for applying a federal regulation.  Missing several hours of a shift, delaying the dispatch of thousands of parcels, would clearly seem to qualify.

Hill argued that his assault was not motivated by any attempt to interfere with commerce, and thus did not come within the statute, but, wrote Wynne, “the Supreme Court has recognized that the economic or non-economic nature of proscribed conduct turns on whether the conduct can be shown to affect economic activity subject to congressional regulation – and therefore interstate commerce – and not whether the perpetrator of the conduct was motivated by economic interest. Indeed, we have consistently rejected the argument that a defendant must intend for his criminal conduct to affect interstate commerce for such conduct to be susceptible to congressional regulation under the Commerce Clause.”

 

For example, he wrote, “this Court and other circuits have concluded that federal arson statutes may be applied against defendants who set fire to property used in interstate commerce, notwithstanding that such defendants were motivated by purely personal reasons, and not any economic interest.” He insisted that “there is no constitutional or logical basis to conclude that the Commerce Clause authorized Congress to regulate interference with one factor of production (capital in the form of real property), but not another (labor).  On the contrary, the Supreme Court’s longstanding recognition that Congress may pervasively regulate the labor market and the terms and conditions of employment indicates that Congress may proscribe conduct that interferes with labor as well as capital.”

 

Thus, Wynne decisively rejected Judge Gibney’s holding that because Hill’s conduct was not an economic crime, it could not be constitutionally prosecuted in federal court, or that allowing the prosecution to go forward would violate Hill’s constitutional right to a presumption of innocence until proven guilty.

 

“The immediate impact of Defendant’s assault of C.T. on ongoing commercial activity demonstrates a sufficient relationship to interstate commerce to support Defendant’s prosecution under the Hate Crimes Act,” wrote Wynne, and because Hill had failed to make a plain showing to the contrary, the case should be allowed to go forward. Of course, in order to secure a conviction, the government will have to prove actual interference with commerce by presenting relevant evidence at trial.  Wynne rejected the argument that because the indictment did not specifically state how much interference had taken place, it was jurisdictionally defective, noting that so long as any interference could be shown, the jurisdictional requirement would be satisfied.

Ending his dissent, Wynne chided the majority for producing an opinion that “elides” the important issue of whether anti-gay violence in the workplace in the form of an assault with fists (rather than a weapon such as a pistol that has moved across state lines) can be prosecuted under the federal Hate Crimes law. The question remains unanswered, but at least Wynne’s dissenting opinion is published and can provide some persuasive support for a future prosecution.

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New York Appellate Division Rules on Controversial Custody Dispute Between Hasidic Father and Ex-Hasidic Lesbian Mother

The New York Appellate Division court in Brooklyn has unanimously reversed a trial judge’s decision to take away a formerly-Hasidic lesbian mother’s custody of her three children, finding, among other things, that the settlement agreement drafted by her ex-husband’s father at the time of their divorce imposed an unconstitutional requirement that she continue to observe the tenets of a Hasidic lifestyle as a condition of her custody of their children. The August 16 decision, issued “per curiam” by a four-judge bench, aroused concerned comment in the Hasidic community, as it applied well-established principles of family law that the trial judge, himself an Orthodox Jew, seemed to have overlooked in giving preemptive weight to the father’s religious desires.  Weisberger v. Weisberg, 2017 WL 3496090, 2017 N.Y. App. Div. LEXIS 6174, N.Y. Slip Op. 06212.

Naftali and Chava Weisberger were married in 2002. They were brought together, according to established custom in the Hasidic community, by a professional matchmaker (called a shadchan), and were both 19 years old at the time.  They moved to Boro Park, Brooklyn, from the tight Hasidic community in Monsey, N.Y., and had three children together.  The move was prompted by Naftali’s desire to pursue religious studies.  They raised their children according to traditional Hasidic practices and beliefs, in a home with no television or internet, observing strict restrictions of diet and dress and speaking Yiddish at home.

After a few years of marriage, Chava informed Naftali that “she did not enjoy sexual relations with men and that she was attracted to women.” They continued to live together, but after several years Naftali agreed to give Chava a “Get” (a Jewish divorce), and they signed a settlement agreement (which was drafted by Naftali’s father) on November 3, 2008.  Naftali married another woman a few weeks later, and has since had two children with her, prompting the speculation that he was finally willing to grant a religious divorce to free himself to marry somebody else.

Under the written settlement terms, the parents had joint custody of the children with Chava having primary residential custody. They agreed that Naftali’s visitation with the children would be for a two-hour period once a week after school (which would increase for the son as he grew older, for the purpose of religious study), overnight visitation every other Friday after school until Saturday evening for Sabbath observance, two weeks during the summer, and an alternating schedule for Jewish holidays.  But, Chava testified, Naftali did not exercise his visitation rights fully for the first 18 months of his new marriage, and would not bring the children to his new home for visitation, hosting them instead at his parents’ home.

The central provision in the custody dispute was the “religious upbringing clause,” which provided: “Parties agree to give the children a Hasidic upbringing in all details, in home or outside of home, compatible with that of their families. Father shall decide which school the children attend.  Mother to insure that the children arrive in school in a timely manner and have all their needs provided.”  The settlement also provided that each party “shall be free from interference, authority and control, direct or indirect, by the other.”  Chava agreed to waive any claim to marital assets or further financial support for herself, but the agreement obligated Naftali to pay $600 a month for support of the children.

Several events appear to have contributed to lead Naftali to file his motion with the court on November 29, 2012, more than three years after the divorce. He alleged that Chava had “radically changed her lifestyle in a way that conflicted with the parties’ religious upbringing clause.”  For one thing, she had eventually decided that the older daughter was old enough to be told about Chava’s sexual orientation, to the consternation of Naftali, who expected Chava to keep this a secret and to keep any relationship she had with a woman secret from the children.  Naftali claimed that Chava had come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of the children, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and had referred to them by English names rather than the names by which they were known in the Hasidic community.  To top things off, Chava was not dressing according to Hasidic tradition, she had dyed her hair, and a transgender man had moved in and was participating in taking care of the children.

Naftali sought sole legal and residential custody of the children and final decision-making authority over their lives, limiting Chava to a few hours of supervised “therapeutic visitation” each week, and to require strict compliance with the religious upbringing clause when the children were in her presence, either for visitation or at school.

Upon filing the lawsuit, Naftali sought an immediate order giving him temporary residential custody, which he got from Judge Eric Prus. A few days later, the parties agreed to a temporary visitation order for Chava, giving her several days a week but providing that she would “encourage and practice full religious observance in accordance with the practices of Emunas Yisroel in the presence of the children” and “in the Boro Park community, the mother shall dress in the Hasidic modest fashion.”

Chava came back with her own motion, seeking to modify the religious upbringing clause. She wanted permission from the court to bring up the children with “a conservative or progressive modern orthodox Jewish upbringing” in a community that “is inclusive of gay individuals.”  She wanted permission to locate them outside of Boro Park, but within the borough of Brooklyn, and to attend a “conservative or progressive modern orthodox Jewish school that is similarly inclusive.”  She wanted educational decisions to be made jointly, not dictated solely by Naftali.  She proposed that the father be able to continue the children’s Hasidic education by having visitation each Sabbath, and she would promise to keep a kosher home and insure that the children go to school and have their needs provided.  She was also willing for Naftali to have the children for all Jewish holidays.

Judge Prus held a hearing at which Naftali and Chava testified about their marriage and relationship with the children. It seemed that during the marriage Naftali left the house early in the morning and didn’t return in the evening until after the children were asleep, leaving Chava primarily responsible for taking care of them.  They had a strictly Hasidic kosher home.  Naftali testified that upon the divorce he had expected that Chava would keep her sexual orientation a secret from the children and the community, even though the written settlement did not state this.

It was clear from Naftali’s testimony that he did not have extensive contact with the children after the divorce, and even when he resumed some contact, he had visitation in his parents’ home rather than his own home, presumably to shield his new wife and children from being contaminated by non-Hasidic influences. He filed his motion to change custody shortly after learning that a transgender man had moved into the mother’s home and was assisting in taking care of the children.  He had also recently noticed the children wearing non-Hasidic clothing and learned they were eating non-kosher food.  Chava had even allowed them to see movies – forbidden in the Hasidic community.  Naftali also testified that “in March, 2013, the younger daughter told him that she had read a book about children with two fathers and other books about homosexuality.”

Naftali denied that the motivation behind his request for a change in custody was Chava’s lesbian identity. Instead, he pointed to her failure to keep it a secret from the children, and said he wanted sole custody to ensure that they would get a traditional Hasidic upbringing without “interference” from their mother.  He objected to them being exposed to non-religious people, or to intimate relationships that were against Jewish law.  “The father believed that homosexuality violated the Torah,” wrote the court, and when asked if he was amenable to some compromise, he said, “There’s no place for comprising in our religion.”

Chava testified that she was not represented by a lawyer during the divorce process, and that a rabbi guided her in negotiating the settlement. A rabbi served as mediator.  She was under the impression that various changes she sought would be made in the settlement agreement, but when she appeared at the Beth Din (religious court) to sign the agreement, it did not include her changes.  Under the settlement, she agreed to waiver her right to support for herself or any of the marital property, leaving as Naftali’s only obligation the monthly support payments, which she testified she never received from him, although the obligation was spelled out in the settlement agreement.

She testified that she had never been as strictly observant as Naftali, even before the divorce, and that she had taken the children for counseling at the Jewish Board of Family and Children’s Services and enrolled the older daughter in group therapy for children from divorced families. She never told the children about her sexual orientation until in 2012 she learned that the older daughter suspected that Chava was gay, so Chava consulted with the daughter’s therapist and then confided in her daughter.  She testified that her transgender friend came to live with them in September 2012, got along well with the children, but then the older daughter returned from a visit with her father apparently confused and upset, because some of father’s family had “teased about her level of religious observance” and told her that Chava’s friend was “really a woman.”

After the temporary custody arrangement was ordered by the court and the children were spending half of each week with Naftali’s family, Chava “found the children would often be upset and confused.” She said that she felt hypocritical for continuing to obey the religious observance requirements of the court’s order so that she could continue to have the children without supervision, and she found Naftali’s custody proposal to be “devastating, as she had been the most present parent in the children’s lives since they were born,” and she was concerned about their emotional well-being in their father’s custody.  She wanted to raise the children as Jewish, but not according to strict Hasidic requirements and rather in the context of a community that respected and accepted diversity.

Justice Prus, finding that Chava’s conduct had been in conflict with the settlement agreement, said that had there been no such agreement, he might have considered the parties’ arguments “differently,” but “given the existence of the Agreement’s very clear directives, the Court was obligated to consider the religious upbringing of the children as a paramount factor in any custody determination.” He ruled largely in favor of Naftali, awarding him sole legal and residential custody and final decision-making authority for the children, and decreed that Chava would only have limited supervised visitation if she did not comply fully with the religious upbringing clause.  Denying Chava’s motion to modify the religious upbringing clause, Prus made clear that if she wanted unsupervised visitation with the children several days a week, she would have to “practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy” whenever the children were with her, and she would have to direct the children “to practice full religious observance in accordance with Hasidic practices of ultra Orthodoxy at all times.”

Chava appealed this draconian ruling. She was represented by attorneys from Seward & Kissel LLP and the N.Y. Legal Assistance Group, which has a dedicated LGBT assistance practice, and she had amicus brief support from Lambda Legal and the NYCLU, as well as two organizations particularly concerned with her situation: Footsteps, Inc., which assists women seeking to leave the Hasidic community, and Unchained at Last, Inc., an organization assisting women who seek to leave arranged marriages.  According to a Hasidic website commenting on the case, Chava actually works with Footsteps, Inc.  An amicus brief by the prominent firm of Fried, Frank, Harris, Shriver & Jacobson LLP represented the views of these two organizations.

The case was argued before the Appellate Division on November 14, 2016, and it took nine months for the court to compose its opinion, released on August 16.

While acknowledging that a trial court’s determinations in a custody case are normally given great weight, the Appellate Division panel wrote that its authority in such a case is “as broad as that of the hearing court,” and in this case the court decided to discard much of the trial court’s ruling. To begin with, it found that Justice Prus’s decision to award Naftali sole legal and residential custody and decision-making power over the children, while consigning Chava to brief supervised visitation unless she adhered to strict Hasidic practice, “lacked a sound and substantial basis in the record,” as the court had given “undue weight to the parties’ religious upbringing clause.”

New York courts do not consider the parties’ settlement agreement provisions as a “paramount factor” in deciding a custody dispute. The court’s determination of what is the best interest of the children takes priority over any private arrangement the parents have made.  The court quoted earlier decisions holding that “clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children,” and Naftali had fallen short in showing that it was in their best interests to put him in total control of their lives in the way suggested by the trial court’s order.

“The mother has been the children’s primary caretaker since birth,” wrote the court, “and their emotional and intellectual development is closely tied to their relationship with her. The record overwhelmingly demonstrated that the mother took care of the children’s physical and emotional needs both during and after the marriage, while it is undisputed that the father consistently failed to fully exercise his visitation rights or fulfill his most basic financial obligations to the children after the parties’ separation.  Indeed, aside from objecting to her decision to expose the children to views to which he personally objects, the father expressed no doubts whatsoever about the mother’s ability to care and provide for the children.  The weight of the evidence established that awarding the father full legal and residential custody of the children with limited visitation to the mother would be harmful to the children’s relationship with her.”

The court found no evidence that unsupervised visitation would be detrimental to the children and “it was wholly inappropriate to use supervised visitation as a tool to compel the mother to comport herself in a particular religious manner.”

The court pointed out that the settlement agreement itself was focused on giving the children a Hasidic upbringing, and “did not require the mother to practice any type of religion, to dress in any particular way, or to hide her views or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle.”  Citing, for example, the U.S. Supreme Court’s 2003 decision striking down the Texas sodomy law, Lawrence v. Texas, the court said that “a religious upbringing clause should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely.”  The court particularly noted the provision in the settlement agreement that each party “shall be free from interference, authority and control, direct or indirect by the other.”

The court concluded that it was not in the children’s best interest “to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares.” However, the court was not ready to completely grant Chava’s motion to modify the religious upbringing clause in the settlement agreement.  Since the children had spent their lives in the Hasidic community, attended Hasidic schools, and visited with extended family who were observant Hasidic Jews, the court decided that Naftali should continue to exercise final decision-making authority about their education, and that he could continue to require that, at least while they were in his custody or attending their Hasidic school, they “practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy.”

The court said it would be best for the children if the parents “work together to surmount the challenges the children will face as they continue on their current educational path. As such, we deem it appropriate to direct the mother to make all reasonable efforts to ensure that the children’s appearance and conduct comply with the Hasidic religious requirements of the father and of the children’s schools while the children are in the physical custody of their father or their respective schools.”  Also, it noted that Chava intended to keep a kosher home and to provide the children exclusively with kosher food.  However, “we otherwise modify the religious upbringing clause to allow each parent to exercise his or her discretion when the children are in his or her custody.”  The court also decreed more visitation time for Naftali than was provided in the original settlement, and accepted Chava’s proposal that Naftali have the children for all Jewish holidays and that she get the non-religious holidays and vacation time.  For two weeks in the summer the children will be with Naftali, as had been provided in the original settlement agreement.

The court acknowledged that neither party would be fully satisfied with its disposition of the case, but, it said, “courts do not always have the perfect solution for all of the complexities and contradictions that life may bring – the parties must forge a way forward as parents despite their differences. We are confident that both parties will exercise their best judgment in these matters in a manner that furthers the best interests of their children.”  The court reminded the parties that their original settlement provided that neither would seek to alienate the children from the other, or “speak idly about the other party in front of the children.”

As neither party got everything they were seeking, it would not be surprising if one or try to appeal this ruling to the Court of Appeals. The Appellate Division has left them to negotiate over issues as to which Naftali, at least, testified that there could be “no compromise.”  Since the divorce, Chava has come out of the Hasidic community and sought to raise her children in a progressive modern Orthodox community.  How these concerns will be reconciled is anybody’s guess, and the idea that these children will shuttle back and forth each week between two very different worlds will pose an extraordinary challenge to them.  We may not have heard the last about this case.

 

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Virginia Federal District Court to Determine Whether Gavin Grimm Case is Moot

On August 2, the Richmond-based 4th Circuit Court of Appeals announced that instead of holding oral argument in Gavin Grimm’s lawsuit challenging the Gloucester County School Board’s bathroom access policy, it was sending the case back to the district court for a determination whether Grimm’s recent graduation from high school made the case moot.  Grimm v. Gloucester County School Board, 2017 U.S. App. LEXIS 14158.  The three-judge panel had tentatively scheduled an oral argument for September to consider yet again whether U.S. District Judge Robert G. Doumar erred when he dismissed Grimm’s Title IX sex discrimination claim against the Gloucester County School Board. The circuit panel speculated that its jurisdiction to decide the case may have been ended by Grimm’s graduation, but that it was not clear from the record before the court and the supplemental briefs filed by the parties earlier this summer whether this is so, and the court concluded that more fact-finding is necessary before the issue of its jurisdiction can be decided.

Grimm’s mother filed suit on his behalf against the school board in July 2015, during the summer before his junior year, alleging that the Board’s policy of requiring students to use restrooms based on their biological sex rather than their gender identity violated Grimm’s right to be free of sex discrimination protected under Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14th Amendment.  The Board moved to dismiss the case, arguing that Title IX did not apply to this dispute and that its action did not violate the Constitution.  Judge Doumar ruled on September 17, 2015, in favor of the Board’s motion to dismiss the Title IX claim, reserved judgment on the 14th Amendment claim, and denied Grimm’s motion for a preliminary injunction to allow him to use the boys’ bathrooms as he appealed the dismissal.  While the case was pending before Judge Doumar, the U.S. Departments of Education and Justice filed a joint statement with the court supporting Grimm’s claim that barring him from using the boys’ bathrooms violated the ban on sex discrimination.

Ruling on Grimm’s appeal of the dismissal on April 19, 2016, the 4th Circuit focused on the document issued by the federal agencies, finding that the district court should have deferred to their interpretation of the Title IX regulations, finding it to be a reasonable interpretation of the regulations.  The court reversed Judge Doumar’s dismissal of the Title IX claim, and sent the case back to Doumar to reconsider Grimm’s request for a preliminary injunction.  Reacting to the Circuit’s decision, Doumar issued a preliminary injunction on June 23, 2016, too late to get Grimm access to the boys’ bathrooms during his junior year but potentially ensuring that he could use appropriate bathrooms at the high school during his senior year.  But that was not to be.  Even though Judge Doumar and the 4th Circuit refused to stay the preliminary injunction while the case was on appeal, the School Board successfully petitioned the Supreme Court for a stay while it prepared to file a petition to have the Supreme Court review the 4th Circuit’s ruling.  Thus, as the 2016-17 school year began, Grimm was still barred from using the boys’ bathrooms at his high school.

The Supreme Court subsequently granted the Board’s petition to review the 4th Circuit’s decision, continuing the stay of the preliminary injunction, and scheduled an oral argument to take place on March 28, 2017.  Meanwhile, Donald Trump was elected president, took office in January, 2017, and appointed Jeff Sessions to be Attorney General and Betsy DeVos to be Secretary of Education.  Sessions and DeVos disagreed with the Obama Administration’s interpretation of Title IX, and on February 22 announced that the Departments of Education and Justice were “withdrawing” the document that had been submitted to the district court and, in effect, taking no position at that time on the appropriate interpretation of Title IX, instead stating that the question of bathroom access in public schools should be decided by the states and localities, not the federal government.  The Supreme Court reacted to this development by cancelling the oral argument, vacating the 4th Circuit’s decision, and sending the case back to the 4th Circuit to address the merits of Grimm’s appeal as a matter of judicial interpretation of the relevant statutory and regulatory provisions, there no longer being an executive branch interpretation to which the court need defer.  The 4th Circuit tentatively scheduled an argument to be held in September, but then, after Grimm graduated in June, the parties filed supplemental briefs to update the court on what had happened since it last considered the case.

The School Board argued that the case had become moot because Grimm had graduated. “The School Board argues that, absent any allegation of a ‘particular intention to return to school after graduation,’ this change of status deprives Grimm of a continued interest in the litigation, rendering the case moot,” wrote the court in its brief order issued on August 2.  “The School Board states further that its bathroom policy does not necessarily apply to alumni, and that the issue of whether the policy is applicable to alumni is not yet ripe for adjudication.”  Grimm responded that it was enough that his possible “future attendance at alumni and school-community events” at the high school gave him a continuing concrete interest in obtaining the injunctive relief he was seeking in this lawsuit.  He also pointed out that the School Board’s “noncommittal statement” that the policy did “not necessarily apply” to alumni “falls short of a representation that the Board will voluntarily cease discriminating against” him.

The court does not have jurisdiction of the case unless there is an “actual case or controversy” between the parties. The Supreme Court has established that this means that the plaintiff, Grimm, must have a concrete interest in the outcome, which would mean that the policy he is challenging must actually affect him personally.  “Thus,” wrote the court, “a crucial threshold question arises in this appeal whether ‘one or both of the parties plainly lack a continuing interest’ in the resolution of this case such that it has become moot.”  The court decided that “the facts on which our jurisdiction could be decided are not in the record before us.”  The factual record in this case consists of the sworn allegations that were presented to the district court back in 2015 when it was ruling on the Board’s motion to dismiss the case, when Grimm was but a rising junior at the high school.  The parties’ assertions in their briefs are just that: merely argumentative assertions, not sworn statements of fact or actual testimony submitted in court.  Thus, the 4th Circuit panel decided it was necessary to send the case back to the district court for “factual development of the record by the district court and possibly additional jurisdictional discovery.”  They are not sending the case back for a new ruling on the merits, just for a ruling on the question of mootness after additional fact-finding.  Any determination by Judge Doumar that the case is moot could, of course, be appealed by Grimm, so final resolution of this case may still take some time, and it is possible that the courts will resolve the mootness issue against the Board.

If the mootness issue is decided in Grimm’s favor and the case returns to the 4th Circuit for a ruling on whether the Title IX claim was appropriately dismissed, it may yet provide a vehicle for the ACLU LGBT Right Project and the ACLU Foundation of Virginia, which represent Grimm, to get this issue back before the Supreme Court, although if they are ultimately successful in the 4th Circuit, that would depend on the School Board persisting in seeking Supreme Court review.  However, this issue is being litigated in other places, in some cases involving elementary school students, and it is possible that one of the other cases will get far enough along to knock at the Supreme Court’s door long before the plaintiff has graduated.  Indeed, while this litigation drama was unfolding in Gloucester County, the Chicago-based 7th Circuit Court of Appeals ruled on May 30 in Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034, that Title IX prohibits a public school from refusing to let transgender students use bathrooms appropriate for their gender identity, so the issue has percolated further elsewhere in the country.  It seems only a matter of time before it gets to the Supreme Court, regardless of what the Trump Administration may say about the issue, unless Congress intervenes by amending Title IX, an outcome that is unlikely unless the Senate Republicans abolish the filibuster rule for ordinary legislation, as Trump has been asking them to do, so far without success.

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Indiana Appeals Court Allows Anonymous Document Changes for Transgender Men

Finding that enforcing a statutory publication requirement for a transgender name change would result in a dangerous “outing” of the applicants, a three-judge panel of the Indiana Court of Appeals unanimously reversed two rulings by the Tippecanoe Circuit Court on August 10 in In re Name Changes of A.L. and L.S., 2017 Ind. App. LEXIS 340, 2017 WL 3429074, holding that the publication requirement should be waived such cases.  The court also ruled that the circuit judge erred in requiring publication of an intent to seek a change of gender marker on a birth certificate, which is not specifically required by statute.

 

An Indiana statute provides that anybody who applies for a name change must publish their intention to do so in a newspaper of general circulation, indicating their existing name and proposed new name.  An administrative regulation provides that a court can exercise discretion to waive the requirement if publication would present a risk to the health or safety of the applicant, and to seal the court record to protect the privacy of the individuals involved.  The August 10 ruling involves two applicants, identified by the court as A.L. and L.S., both transgender men seeking alteration of their official records.

 

On May 11, 2016, A.L. filed a petition for a name change, having previously published his intent to do so in a newspaper, and the trial court granted his petition.  He had been living as a man for two years at that point, and had undergone “medical procedures in line with his transition,” according to the Court of Appeals opinion by Judge John Baker.  At the hearing on his name change, A.L. asked to have his gender marker changed on his birth certificate.  The judge instructed him to publish his intent to change his gender marker in a newspaper and scheduled a new hearing on this request.  A.L., who had been representing himself up to that point, then obtained a lawyer who filed a “motion to correct error,” arguing that Indiana law did not require such a publication for a gender marker change.

 

At the subsequent hearing, A.L. testified about his reasons for seeking the change and presented evidence of his medical transition, but the court denied his motion because he had not published his intention in a newspaper.  The court subsequently ordered A.L. to provide proof of publication before it would issue the requested order.

 

The judge said that although he found the application to be made in good faith, without any fraudulent intent, and that A.L. had presented evidence that “transgender individuals are disproportionately subject to violence based on their status as transgender individuals,” where A.L. feel short, in the judge’s view, was in failing to show that he “is personally at increased risk for violence (other than as a general member of the transgender community) or that this Petition would lead to an increased risk of violence for the Petitioner.”

 

The trial judge rejected the idea that there should be “a general rule that would require no notice for an individual seeking to change their legal gender and have their birth certificate amended,” speculating that this could increase the potential for fraud “in that individuals might be able to seek multiple gender changes in attempts to avoid identification by creditors, governmental actors, or other aggrieved parties without those parties having an opportunity to object or even be aware of said changes.” Thus, the judge concluded, it was in the public interest to require publication both of gender identification changes as well as name changes, even though the statute only specifically addressed name changes.

 

While the trial judge expressed reluctance “to force well-meaning and potentially vulnerable individuals to address intimate and personal issues central to their personal identity in the harsh public light of open court,” he said this was common to anybody who sought “court intervention in the most personal areas of their lives” and noted the judicial preference for court proceedings that are “open” and “transparent” is “well established in American jurisprudence.”

 

L.S. filed his petition for change of name and gender on September 7, 2016, in the same circuit court, and encountered the same response. L.S. had not arranged for any publication of his intentions, and the trial judge ruled that he could not grant the petition unless L.S. presented proof of publication.  According to Judge Baker’s opinion, the trial judge basically repeated the same statements he had made in response to A.L.’s petition.

 

The two cases were consolidated for appeal, and the Court of Appeals totally rejected the trial judge’s reasoning.

 

First, the court pointed out that authority to change gender markers on birth certificates stemmed from its own prior ruling in 2014, not from the statute governing name changes. Instead, it had relied on a different statute that authorized the state’s health department to “make additions to or corrections in a certificate of birth on receipt of adequate documentary evidence.”  In its 2014 ruling, the court had pointed out that “the vast majority of states” had allowed for corrections to be made to birth certificates, including, by that date, for changes of gender, as part of the “inherent equity power of a court of general jurisdiction.”

 

As the legislature had not reacted to the 2014 decision by enacting any new requirements, and there was no specific statutory requirement for advance publication in a newspaper of an intention to request a correction to a birth certificate regarding gender, “it was erroneous to create a requirement where none exists.” As far as the Court of Appeals was concerned, when a petitioner establishes that their request is made in good faith and without fraudulent or unlawful purpose, which the trial court had found to be true as to L.S. and A.L., “no further requirements need to be met and the petition should be granted.”

 

As to the name changes, the court said, the issue was whether the trial court should have waived the statutory publication requirement. “The rule seeks to balance, among other things, the risk of injury to individuals with the promotion of accessibility to court records as well as governmental transparency,” wrote Judge Baker.  The judge quoted the published Commentary in the Indiana statute book, which “notes that the rule ‘attempts to balance competing interests and recognizes that unrestricted access to certain information in Court Records could result in an unwarranted invasion of personal privacy or unduly increase the risk of injury to individuals and businesses.”  The same considerations govern requests to seal a Court Record.  The petitioner must show that leaving the record open to public inspection “will create a significant risk of substantial harm to the requestor” in order to get a judicial waiver.

 

Judge Baker then summarized the evidence L.S. had presented about violence against transgender people, including the significant percentage who had responded to surveys showing workplace harassment, harassment at school, and physical assaults. L.S. had also testified about a transgender friend who had been brutally assaulted on the street, and about the discrimination he had encountered in seeking a work internship, because the way he was identified on his Social Security card did not “match” how he appeared.  L.S. “testified that he believes that if information about his transgender status became public, he would be ‘at great risk of potential harm.’”

 

The trial judge had considered this evidence credible, but nonetheless denied waiver of the publication requirement or sealing of the record because he found that L.S. had not specifically shown that there was an individualized risk to himself, as opposed to the generalized risk to the transgender community as a whole. The Court of Appeals disagreed with this conclusion.

 

Baker wrote, “L.S. provided evidence that, as an out member of the transgender community, he would face a significantly higher risk of violence, harassment, and homicide. He has personally witnessed a transgender friend being violently assaulted because of her gender identity.  He has personally experienced discrimination in the workplace after a discrepancy between the way he looked and the way he was identified by Social Security outed him as a transgender individual.  Publication of his birth name and new name would enable members of the general public to seek him out, placing him at a significant risk of harm.  And in today’s day an age, information that is published in a newspaper is likely to be published on the Internet, where it will remain in perpetuity, leaving L.S.  at risk for the rest of his life.  There was no evidence in opposition to L.S.’s evidence.”

 

The Court of Appeals found that this evidence was sufficient to establish that “public of notice of his petition for a name change would create a significant risk of substantial harm to him. As a result, the trial court should have granted his requests to seal the record and waive publication” under the administrative rule.

 

The court sent the case back to the Tippecanoe Circuit Court “with instructions to ensure that the record of this case remains sealed, and for consideration of L.S.’s petition for a name change.” The court also ordered that as to the petitions for gender marker changes on birth certificates for both petitioners, the trial court should “grant both petitions and issue orders” to the health department to “amend both certificates to reflect their male gender.”

 

 

 

 

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Justice Department Tells 2nd Circuit That Gays Are Not Protected from Discrimination Under Federal Civil Rights Law

The U.S. Department of Justice filed a brief on July 26 with the New York-based U.S. Court of Appeals for the 2nd Circuit, weighing in on the question whether Title VII of the Civil Rights Act of 1964 bans discrimination because of sexual orientation.  Not surprisingly, the Trump Administration’s answer is “No.”

 

Title VII lists forbidden grounds for employment discrimination: race or color, religion, sex and national origin. After it went into effect in July 1965, both the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcement of the statute, and the federal courts quickly took the position that people who encountered discrimination because they were gay or transgender could not pursue a claim under this law.  Both the administrative agency and the federal courts held fast to that position until relatively recently.

 

That consensus began to break down early in this century, first in response to discrimination claims by transgender people, as courts and then the EEOC (in 2012) accepted the argument that discriminating against somebody because they were transitioning or had transitioned was actually discrimination because of sex. The rationale they adopted derived from a 1989 decision by the Supreme Court, which recognized that discrimination against people for failing to comply with the employer’s stereotyped view about how people of a particular sex should behave, dress, or otherwise act, was actually discrimination because of their sex.  The 1989 case involved a woman who was denied a partnership in an accounting firm because some of the partners thought she was not sufficiently feminine to meet their image of a “lady partner,” and her immediate boss told her she should get her hair styled and start wearing makeup and jewelry if she wanted to be a partner.

 

By 2015, the EEOC had taken the analysis one step further to cover sexual orientation claims. It recognized that having a same-sex attraction violates gender stereotypes, similarly to the transgender cases, but also drew analogies to cases where courts found that discriminating against an employee for being in an interracial relationship was a form of race discrimination, called associational discrimination.  Further, the EEOC decided that it was really not plausible to distinguish between sexual orientation discrimination and sex discrimination, since both were concerned with treating people differently because of their sex.

 

Until this year, no federal appellate court had accepted these theories, but on April 4, the full bench of the Chicago-based U.S. Court of Appeals for the 7th Circuit became the first federal appeals court to rule that Title VII bans sexual orientation discrimination.  Reversing its prior precedents, the court accepted the EEOC’s analysis in a lawsuit by Kimberly Hively, a lesbian who had been denied a tenure-track position by an Indiana community college.  The college decided not to appeal, taking the position that it had not discriminated at all, so the case was sent back for trial to the district court.

 

Meanwhile, however, the same issue was being litigated in other parts of the country. In the Atlanta-based 11th Circuit, a sexual orientation discrimination claim by Jameka Evans against a Georgia hospital that had been dismissed by the district court was revived by the court of appeals, but on a narrower theory.  In common with several other circuits, the 11th Circuit will accept Title VII claims from gay plaintiffs who allege that they suffered discrimination because of their failure to conform to gender stereotypes.  In this case, while a three-judge panel ruled 2-1 to affirm the trial court’s rejection of the plaintiff’s sexual orientation discrimination claim, the panel sent the case back to the trial court to allow the plaintiff to pursue a sex stereotyping claim.  One member partially dissented, Judge William Pryor (who had been on Trump’s potential Supreme Court list), finding no basis for any Title VII claim by the plaintiff.  Another member of the court agreed to send the case back, but argued that Title VII should be interpreted to cover sexual orientation claims.  A third member found that the panel was bound by circuit precedent to reject the sexual orientation claim, but agreed that the plaintiff should have a chance to pursue a sex stereotype claim.  The 11th Circuit denied a petition to reconsider the Evans case “en banc” (by the full bench) a few weeks ago, and Lambda Legal announced that it will petition the Supreme Court to review the panel decision.  Lambda has until the first week of October to file its petition.

 

Meanwhile, however, within the 2nd Circuit, at least two federal district court judges have recently refused to dismiss sexual orientation claims under Title VII, finding that the circuit’s acceptance of the “associational theory” in a race discrimination case means that the court should accept sexual orientation discrimination claims.  Several other district judges have dismissed such claims, concluding that until the court of appeals explicitly overrules its earlier precedents, the trial judges are bound to follow them.  A few months ago, confronted by petitions for en banc review in three different cases, the Circuit announced that it would reconsider the panel decision in Estate of Donald Zarda v. Altitude Express.

 

In Zarda, the district court had dismissed a Title VII claim but allowed the case to go to trial under New York State’s Human Rights Law, which expressly outlaws sexual orientation discrimination. The jury ruled in favor of the employer, although it is questionable whether the jury was properly instructed about how to weigh the evidence.  The plaintiffs appealed the dismissal of the Title VII claim. A three-judge panel affirmed the district court’s dismissal, while noting that recent developments in the law could justify reconsideration by the full 2nd Circuit bench.  In a case decided by a different three-judge panel at around the same time, Christiansen v. Omnicom, the panel also upheld dismissal of a sexual orientation claim, but sent the case back to the district court for reconsideration as a sex stereotyping claim, and two of the judges joined a concurring opinion suggesting that it was time for the 2nd Circuit to reconsider the sexual orientation issue en banc in an “appropriate case.”  However, after granting en banc review in Zarda, the circuit court denied a petition for en banc review in Christiansen!

 

Briefs were due from the plaintiff’s side in the Zarda appeal during the last week in June. The EEOC, consistent with its interpretation of the statute, filed an amicus (friend of the court) brief in support of the Zarda. (Zarda, a sky-diving instructor, died in a diving accident after starting his discrimination case, so the lawsuit is now being pursued by his executors, seeking money damages for the estate.)    Briefs were due by July 26 from the employer and any amicus parties supporting its position.  After some suspense about what the Trump Administration might do, the Justice Department filed its brief right at the deadline.

 

It is somewhat unusual for the government to file an amicus brief in opposition to a position taken by a federal agency, and it is also unusual for the government to file a brief in a case between private parties – a former employee versus a business – but the federal government has a significant interest in this case, and the politics of EEOC v. DOJ are unusual because of the timing. Until this month, the majority of the EEOC Commissioners have been appointees of President Obama.  They decided the key sexual orientation case two years ago by a vote of 3-2, with the Republican commissioners dissenting.  Upon confirmation of Trump’s appointees to fill some vacancies, control of the EEOC will switch over to Republican hands.  But for now, the EEOC continues to pursue sexual orientation discrimination cases under Title VII, and has even filed some new lawsuits this year despite the change of administrations in January.  On the other hand, the Justice Department reflects the views of the new administration, which are consistent with those expressed by 7th Circuit Judge Diane Sykes (also on Trump’s potential Supreme Court list), who wrote a dissenting opinion in the Hively case.

 

Why does the Trump Administration have a strong interest in a case between private parties? Because Title VII has provisions banning sex discrimination in the federal workforce, and because the president’s political base and the Republicans in Congress stand in opposition to outlawing sexual orientation discrimination.  This is clear from the failure of Republican legislators to co-sponsor the Equality Act, a bill that would amend Title VII to add sexual orientation and gender identity or expression to the statutory list of forbidden grounds of employment discrimination.  A few Republicans were co-sponsors of the Employment Non-Discrimination Act, a narrower bill that was pending in Congress from the mid-1990s through Obama’s first term until it was supplanted by the Equality Act, but not enough to call that bipartisan legislation.  The Employment Non-Discrimination Act came up for floor votes once in each house of Congress but in different sessions of Congress.  On both of those occasions it received few votes from Republican legislators, and their party’s platform never endorsed it.

 

The Justice Department’s brief, noting the EEOC’s position in the case, states that “the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” And, almost needless to say, the Justice Department under the outspokenly anti-gay Jeff Sessions is not persuaded by any of the EEOC’s arguments.  The brief argues that Congress did not intend to ban sexual orientation discrimination in 1964 when it enacted Title VII and that should be the end of the matter.  The failure of Congress to approve any amendment to add sexual orientation to the law is cited as evidence of continuing legislative intent, and the brief argues that only Congress can change the law.  It argues at length that the theories embraced by the EEOC and the 7th Circuit are mistaken interpretations of the Supreme Court’s rulings on sex stereotyping and associational discrimination, and that there is a distinct difference between sex discrimination and sexual orientation discrimination, despite statements by many federal judges that they have difficulty drawing the line between the two.

 

The 2nd Circuit will not be oblivious to the political nature of the government’s opposition.  The concurring opinion in the Christiansen case, written by 2nd Circuit Chief Judge Robert Katzmann, virtually endorsed the EEOC’s interpretation of the statute while calling for the circuit to reconsider its earlier precedents.  And a majority of the judges who will sit on the en banc panel were appointed by Bill Clinton or Barack Obama and have generally taken a more liberal approach to interpreting Title VII.  The circuit’s earlier precedents that are being reconsidered were issued by three-judge panels at a time when the arguments for allowing sexual orientation discrimination claims were not nearly as well developed as they have been in recent years, and the circuit has accepted the associational discrimination theory in a race discrimination case after those earlier cases were decided.  It is likely to see that theory’s applicability here, as the district judges have commented.  However, if the Supreme Court decides to grant Lambda Legal’s petition to review the 11th Circuit case, it is possible that the 2nd Circuit will hold up on deciding the Zarda appeal until the Supreme Court has spoken.  Interesting timing issues will arise this fall.  The 2nd Circuit argument is scheduled for late in September, before the Supreme Court will begin its fall term and start announcing whether it will grant petitions for review filed over the summer.

 

The brief filed by Altitude Express in opposition to the appeal has raised significant jurisdictional arguments that would give the 2nd Circuit a way out of deciding this appeal on the merits, if the judges are so inclined.  That brief argues that when he filed his initial discrimination charge with the EEOC, Donald Zarda expressly disclaimed making a sexual orientation discrimination claim under Title VII, relying instead on the allegation that he suffered discrimination for failing to comply with sex stereotypes.  That was the theory he initially presented in his federal court complaint under Title VII as well, and it was dismissed by the trial judge, who opined that Zarda’s factual allegations were not sufficient for a sex stereotyping claim.  Zarda only pressed a sexual orientation claim under the New York State Human Rights Law.  Thus, Altitude Express argues, he cannot now argue for a sexual orientation discrimination claim under Title VII, because the statute requires that any claim first be presented to the administrative agency, and further that any ruling by the court of appeals on that question would be, in effect, an advisory opinion, as the jury has already ruled against his sexual orientation discrimination claim.  There’s no telling how the 2nd Circuit will respond to these arguments, but one suspects that if they had serious doubts about jurisdiction, they would not have granted the en banc petition.

 

In the meantime, however, it is clear that if the Supreme Court grants review in the 11th Circuit Evans case, the federal government, represented by the Solicitor General, will come into the case against the plaintiff, and by then the EEOC will be in Republican control and will probably not be filing a separate brief.  Once again, the Trump Administration is actively disavowing the LGBT-supportive stance that the candidate claimed during the election last year.  The brief was filed just as Trump was tweeting his decision to bar transgender people from military service, which seemed no coincidence.

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South Carolina Supreme Court Finds Some Gays Are Protected from Domestic Violence

The South Carolina Supreme Court ruled on July 26 in Doe v. State, 2017 S.C. LEXIS 113, that the 14th Amendment’s Equal Protection Clause requires the state to provide the same protection against domestic violence to same-sex couples as it provides to different-sex couples.  But a majority of the court sought to achieve this at the expense of the plaintiff in the case, who would not be protected by the court’s decision to invalidate the definitional portion of the state’s domestic violence law pertaining to unmarried cohabiting couples.

While all five members of the court found problems with the existing definition of the class of persons protected by the statute, they were divided about how to remedy the apparent failure of the existing statute to provide protection to many same-sex couples.

The plaintiff, identified in the court’s opinion as “Jane Doe” to safeguard her identity, sought an Order of Protection from the Richland County Family Court following a “domestic violence incident” between her and her “former same-sex partner.”   The trial judge found that she was not entitled to such protection under the state’s Protection from Criminal Domestic Violence Act, as the statutory definition of a “household member” did not, in the court’s view, include same-sex partners who were living together without being married to each other or having a child in common.

Rather than appeal this ruling directly, Doe filed a petition in the state Supreme Court, naming the state as the respondent, invoking the court’s “original jurisdiction” to decide whether a statutory provision violates the constitution. Doe argued that there was a violation of her right to due process of law and equal protection of the law, citing the 14th Amendment of the U.S. Constitution.

When South Carolina enacted its first domestic violence statute in 1984, its definition of “family or household members” who were protected included “spouses, former spouses, parents and children, persons related by consanguinity or affinity within the second degree, and persons cohabitating or formerly cohabitating.” In 1994 the legislature amended the definition, changing the reference to cohabitation to refer to “a male and female who are cohabitating or formerly have cohabitated.”  Thus, the definition was narrowed, apparently specifically to exclude same-sex couples.   The act was amended several times since then, and a tougher statute called the Domestic Violence Reform Act was passed in June 2015 providing harsher penalties, but through all these amendments and enactments the narrow definition of “cohabiting household members” was largely retained, although the definition was amplified to include “persons who have a child in common.”

Today, of course, as same-sex couples can marry in South Carolina, those who do marry would obtain protection from domestic violence as “spouses.” The issue in this case is that Jane Doe and her former partner were not married.  In one of the opinions, Doe’s alleged assailant is referred to as her “former fiancé.”

When this case was argued before the South Carolina Supreme Court in March 2016, Costa Pleicones was Chief Justice. His term expired at the end of 2016, but he participated as an “Acting Justice” and wrote the court’s opinion for this case. Justice Kaye Hearn concurred in the opinion, and Justice John W. Kittredge concurred in the result without joining the opinion.  Thus, Pleicones’ opinion states the decision of the court, although he speaks as to the details of the analysis only for Justice Hearn and himself.

As Pleicones reads the statutory history, the legislature intentionally narrowed the definition in 1994 to exclude presently or formerly cohabiting same-sex couples from protection, which created an obvious equal protection problem.

Although the U.S. Supreme Court has not clearly specified the “level of scrutiny” that courts are to apply to determine when unequal treatment of same-sex couples violates the Equal Protection Clause, “we find,” wrote Justice Pleicones, “the statutory subsections [containing the definition] cannot survive even the most government-friendly, deferential level of scrutiny – the rational basis standard.”

“In this case,” he continued, “we cannot find a reasonable basis for providing protection to one set of domestic violence victims – unmarried, cohabitating or formerly cohabitating, opposite-sex couples – while denying it to others.” He rejected the argument of one of the other justices that the statutory language was ambiguous so the problem could be cured by interpretation.  “The plain language is clear and the intent is unmistakable: the legislative history of the Act unequivocally demonstrates the General Assembly intentionally excluded same-sex couples from the protections of the Acts.”

Having found that the definition violates the Equal Protection Clause, Justice Pleicones turned to the question of a remedy. He found that both of the state’s domestic violence statutes contain severability clauses, under which the court could strike out unconstitutional provisions while otherwise leaving the statute in effect.  “In this case,” he wrote, “the test for severability is met.  Specifically, all provisions of the Acts, save the discriminatory definitions, are capable of being executed in accordance with the legislative intent.  Further, it may be fairly presumed the General Assembly would have passed each Act absent the offending provision, and both Acts contain severability clauses.  Therefore, the remedy for this constitutional infirmity is to sever the discriminatory provision from each Act.  The remainder of each Act – providing domestic violence protection to ‘household member[s]’ defined as a spouse, former spouse, or persons who have a child in common – remain in effect.”

This creates a new problem, however. By stripping out the cohabitation portion of the definition, the court is narrowing the protective scope of the statute to apply only to present or former spouses, or unmarried couples who have a “child in common.”  That would provide protection to married same-sex couples but not to other same-sex couples.  Cohabitants, whether same-sex or different-sex, would lose the protection of the statute.  Arguably, both same-sex and different-sex couples who had a child in common would still be protected, since that part of the definition referred to “persons” rather than to “a male and a female.”

Two members of the five member court wrote separate opinions because of their discomfort with this result.

Chief Justice Donald W. Beatty, while agreeing that the “household member” definitions as they stand violate Doe’s Equal Protection rights, disagreed that the solution was to sever the offending portions of the definitional provisions. “Instead,” he wrote, “in order to remain within the confines of the Court’s jurisdiction and preserve the validity of the Act, I would declare the sections … unconstitutional as applied to Doe.”  He noted that in her petition Doe claimed that the statutes were both unconstitutional on their face and as applied to her, but, he wrote, “I would find that Doe can only utilize an ‘as-applied’ challenge.”

A facial challenge, he explained, would work only if the statutes had no constitutionally valid application as written. In this case, he argued, the laws were valid as applied to the other kinds of family arrangements described in the definitional provisions.  The constitutional flaw, as to which he agreed with Justice Pleicones, was in specifically excluding protection for cohabiting same-sex couples while extending it to different-sex couples.  He found that the definitional sections are “facially valid” because they do “not overtly discriminate based on sexual orientation.  Though not an all-inclusive list, the statutes would be valid as to same-sex married couples, opposite-sex married couples, and unmarried opposite-sex couples who live together or have lived together.  Because there are numerous valid applications of the definition of ‘household member,’ it is not ‘invalid in toto.’”

Turning to the “as-applied” challenge, Justice Beatty concluded that Doe met her burden of “showing that similarly situated persons received disparate treatment.” Although she was arguing for heightened scrutiny in this case, Beatty concluded that was not necessary, as “she seems to concede that the appropriate standard is the rational basis test” and, he concluded, “the definition of ‘household member’ as applied to Doe cannot even satisfy the rational basis test.” Excluding same-sex couples from protection “‘bears no relation to the legislative purpose of the Acts, treats same-sex couples who live together or have lived together differently than all other couples, and lacks a rational reason to justify this disparate treatment.”  He referred to statistical evidence concerning domestic violence to show that the need for the statute was just as great for unmarried same-sex couples as for the other categories that were covered by the statutory language.  “There is no reasonable basis,” he concluded, “and the State has offered none, to support a definition that results in disparate treatment of same-sex couples who are cohabiting or formerly have cohabited.”

He observed that the remedy embraced by the majority “is unavailing since the constitutional infirmity still remains. Specifically, protection afforded by the Acts would still be elusive to Doe and would no longer be available to opposite-sex couples who are cohabiting or formerly have cohabited.  Yet, it would be available to unmarried persons such as former spouses (same-sex or not) and persons (same-sex or not) with a child in common.  Absent an ‘as-applied’ analysis, the ‘household member’ definitional sections must be struck down.  As a result, the Acts would be rendered useless.  Such a drastic measure is neither necessary nor desired.”

Thus, he would not sever the definitional sections, and would not invalidate the Acts in their entirety, since those steps would leave many victims of domestic violence in South Carolina totally unprotected. Instead, he would declare the definitional sections unconstitutional as applied to Doe and others similarly situated.  Thus, the family court could not refuse to provide protection to unmarried same-sex cohabitants, because to do so would violate their constitutional right to equal protection.

Justice John Cannon Few embraced a different approach. Unlike the other members of the court, he found the statutory definitions to be sufficiently ambiguous that the court would be justified in avoiding a constitutional ruling entirely by interpreting the statute to protect unmarried same-sex couples.  “Jane Doe, the State, and all members of this Court agree to this central point,” he wrote: “if the Acts exclude unmarried same-sex couples from the protection they provide all other citizens, they are obviously unconstitutional.”  But he would not declare them unconstitutional for two reasons: “First, Doe and the State agree the Protection from Domestic Abuse Act protects Doe, and thus, there is no controversy before this Court.  Second, Doe and the State are correct: ambiguity in both Acts – particularly in the definition of household member – requires this Court to construe the Acts to provide Doe the same protections they provide all citizens, and thus, the Acts are not unconstitutional.”

He pointed out that this “original jurisdiction” action was a suit by Doe against the state. But the state agreed with her, or at least the attorneys representing the state in the current action agree with her. The problem is that the family court wrongly interpreted the statutes to deny her relief based on the definitional sections.  But she didn’t appeal that ruling, in which her former partner was the defendant.  Since the state now agrees with her that she should be protected, Justice Few wrote, the court should interpret the statute to provide that protection for the future.

Justice Few observed that South Carolina precedent requires courts to avoid declaring a statute unconstitutional unless it is absolutely necessary to do so, unless “its repugnance to the Constitution is clear beyond a reasonable doubt.” Justice Few went through a convoluted explanation of why he found the statutory definition to be ambiguous, mainly due to changes in wording and emphasis over the course of successive amendments, and argued that the majority was misled by its reliance on legislative history and the presumed intent of the legislature when it amended the original definitions.  “If the statutory text truly was clear and unambiguous,” he wrote, “the majority would not need to consider legislative history to determine the motives of the General Assembly.  The statutory text is not clear, and therefore, this Court must find a way to construe the Acts as constitutional.  I respectfully believe Doe and other members of same-sex unmarried couples are covered by the Acts and the Acts are therefore constitutional.”

Now it is up to the legislature to sort things out. The opinion is sufficiently complicated that the initial Associated Press report about the opinion fails to explain how the Court’s remedy leaves unmarried couples in South Carolina unprotected – not a result, presumably, that the legislature would favor.  The ball is now back in the legislative forum to repair the problem.

 

 

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