New York Law School

Art Leonard Observations

Can Three Parents Make a Family in New York?

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Post script):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Federal Court Rejects Challenge to Montana Law Against Plural Marriage

U.S. District Judge Susan P. Watters has accepted a recommendation from Magistrate Judge Timothy Cavan to grant the state’s motion for summary judgment in Collier v. Fox, 2018 WL 1247388 (D. Mont., March 9, 2018), adopting Findings and Recommendations, 2018 WL 1247411 (D. Mont., Feb. 22, 2018), a challenge to the constitutionality of Montana’s ban on plural marriage.

Nathan and Vicki married in South Carolina in 2000, and remain married today. “Nathan is also in a committed romantic relationship with Christine [Parkinson],” wrote Judge Cavan, “and they desire to legally marry.  Vicki and Christine are aware of Nathan’s relationship with one another, and each consents to be married to Nathan simultaneously.”  They have been living together and “raising their eight children jointly for several years.”

Nobody has threatened them with prosecution, but when Nathan and Christine applied for a marriage license, they were turned down by the Yellowstone County clerk, who wrote them that their request “could not be granted because granting the license would place the Colliers in violation of Montana Law,” specifically Mont. Code Ann. Secs. 45-5-611 and 612, which make it a crime to enter into a multiple marriage or to marry somebody who is already married to somebody else.

Judge Cavan found that they lacked standing to challenge these laws, because nobody is prosecuting them or threatening to do so, and Montana has never prosecuted anybody under these laws.

Further, wrote Judge Cavan, the Supreme Court’s decision in Reynolds v. U.S., 98 U.S. 145 (1878), rejecting a constitutional challenge to the Utah territory bigamy law, has never been overruled and is still cited as good law, despite its antiquity.

The Colliers were pinning their hopes on Obergefell v. Hodges, 135 S. Ct. 2584 (2015), in which the Supreme Court identified the right to marry as a fundamental right under the 14th Amendment Due Process Clause, whose denial would also offend equal protection. The Colliers particularly pointed to Chief Justice Roberts’ comment, in dissent, that “it is striking how much the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”  However, Cavan wrote, Roberts had also stated that he did “not mean to equate marriage between same-sex couples with plural marriage in all respects.  There may well be relevant differences that compel different legal analysis.”  Cavan pointed out that Roberts’ dissent “is not binding precedent, and it certainly cannot be said to have overruled Reynolds.”

This writer found both holdings – standing and binding precedent – to be disingenuous. The Colliers were denied a marriage license, which is an injury for purposes of Title III – or at least it was deemed so in dozens of cases leading up to Obergefell.  Furthermore, Reynolds was a suit against the federal government under the 5th Amendment, not a 14th Amendment case, and it predates a raft of subsequent Supreme Court decisions construing the 14th Amendment’s liberty and equality guarantees, making its reasoning practically obsolete. And the precise question presented in the two cases is different.  Not that we are suggesting that an appeal to the 9th Circuit would necessarily be successful….

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Federal Appeals Court Rules for Transgender Funeral Director in Title VII Discrimination Suit

A unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit ruled on March 7 in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., 2018 WL 1177669, 2018 U.S. App. LEXIS 5720, that a Michigan funeral home violated federal anti-discrimination law by terminating a funeral director who announced that she would be transitioning during her summer vacation and would return to work as a woman.  The 6th Circuit has appellate jurisdiction over federal cases from Michigan, Ohio, Kentucky and Tennessee.

Rejecting a ruling by U.S. District Judge Sean F. Cox that the funeral home’s action was protected by the federal Religious Freedom Restoration Act (RFRA), Circuit Judge Karen Nelson Moore wrote for the court that the government’s “compelling interest” to eradicate employment discrimination because of sex took priority over the religious beliefs of the funeral home’s owner.

This is the first time that any federal appeals court has ruled that RFRA would not shelter an employer from a gender identity discrimination claim by a transgender plaintiff.  Although the 6th Circuit has allowed Title VII claims by transgender plaintiffs in the past under a “gender stereotype” theory, this is also the first time that the 6th Circuit has explicitly endorsed the Equal Employment Opportunity Commission’s conclusion that gender identity discrimination is a form of sex discrimination, directly prohibited by Title VII.  Judge Moore drew a direct comparison to a Title VII decision by the 7th Circuit in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), which held similarly that sexual orientation discrimination is a form of sex discrimination, thus potentially joining in the widening split of federal appellate courts over a broad construction of Title VII to extend to both kinds of claims.

Alliance Defending Freedom’s involvement as volunteer counsel for the funeral home makes it highly likely that the Supreme Court will be asked to review this ruling.

The lawsuit was filed by the EEOC, which sued after investigating Aimee Stephens’ administrative charge that she had been unlawfully terminated by the Michigan funeral home.  After the district court ruled in favor of the funeral home, the EEOC appealed to the 6th Circuit and Stephens, represented by the ACLU, was granted standing to intervene as co-plaintiff in the appeal.

“While living and presenting as a man,” wrote Judge Moore, “she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc., a closely held for-profit corporation that operates three funeral homes in Michigan.  Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work.”

Rost identifies himself as a Christian who espouses the religious belief that “the Bible teaches that a person’s sex is an immutable God-given gift,” and that he would be “violating God’s commands if he were to permit one of the Funeral Home’s funeral directors to deny their sex while acting as a representative of the organization” or if he were to “permit one of the Funeral Home’s male funeral directors to wear the uniform for female funeral directors while at work.”

“In particular,” related Judge Moore, “Rost believes that authorizing or paying for a male funeral director to wear the uniform for female funeral directors would render him complicit ‘in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.’”

As such, Rost claimed that his company’s obligation to comply with Title VII should be excused in this case because of the later-enacted Religious Freedom Restoration Act (RFRA), which provides that the federal government may not substantially burden a person’s free exercise of religion unless it has a compelling justification for doing so, and that the rule the government seeks to apply is narrowly tailored to burden religious practice no more than is necessary to achieve the government’s goal.

The funeral home moved to dismiss the case, arguing that Title VII does not ban discrimination against a person because they are transgender or transitioning, that the funeral home could reasonably require compliance with its dress code, and that requiring the funeral home to allow a “man dressed as a woman” to serve as a funeral director would substantially burden the funeral home’s free exercise of religion, as defined by Rost, and violate its rights under RFRA.

Prior to the Supreme Court’s 2014 decision, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, there was no Supreme Court authority for the proposition that a funeral home, or any other for-profit business, could claim to “exercise religion,” but in that case the Court ruled that because business corporations are defined as “persons” in the U.S. Code, they enjoy the same protection as natural persons under RFRA.  At least in the case of a closely-held corporation such as Hobby Lobby, with a small group of shareholders who held the same religious beliefs on the issue in question – a federal regulation requiring that employer health plans cover various forms of contraception to which Hobby Lobby’s owners took exception on religious grounds – the corporation was entitled to protection under RFRA based on the religious views of its owners.  The Harris Funeral Home is analogous to Hobby Lobby Stores, albeit operating on a smaller scale, so Rost’s religious views on gender identity and transitioning can be attributed to the corporation for purposes of RFRA.

Interestingly, this would not have been an issue in the case had Stephens brought the lawsuit on her own behalf, without the EEOC as a plaintiff.  The 6th Circuit has interpreted RFRA to impose its restriction on the federal government but not on private plaintiffs suing to enforce their rights under federal statutes.  Since EEOC is the plaintiff, however, this is a case of the government seeking to impose a burden on the free exercise of religion by a business corporation, and RFRA is implicated.

District Judge Cox, bound by 6th Circuit precedent to find that Stephens had a potentially valid discrimination claim under Title VII (see Smith v. City of Salem, Ohio, 378 F. 3d 566 (2004)), nonetheless concluded that ordering a remedy for Stephens would substantially impair the Funeral Home’s rights under RFRA, granting summary judgment to the funeral home.  In another contested issue in the case, Judge Cox ruled that the EEOC could not pursue in this lawsuit a claim that the Funeral Home’s policy of paying for male employees’ uniforms but not for female employees’ uniforms violated Title VII’s sex discrimination provision.  Cox held that this claim did not grow naturally out of the investigation of Stephens’ discrimination charge, and so must be litigated separately.

The 6th Circuit reversed on both points.  As to the uniform issue, the Court found that the EEOC’s investigation of Stephens’ discrimination claim naturally led to investigating the company’s uniform policy, since the question of which uniform Stephens could wear was directly involved in Rost’s decision to terminate her.  The court reversed the summary judgment and remanded the question back to the district court to determine whether the uniform policy, which the funeral home has since modified to provide some subsidy for the cost of women’s uniforms, violates Title VII.

More significantly, the court found that Judge Cox erred on several key points in his analysis of the company’s summary judgment motion.

Cox had determined that the 6th Circuit does not recognize gender identity claims under Title VII, as such, but in rejecting a prior motion to dismiss the case had concluded that Stephens could proceed on the theory that she was fired for failing to conform to her employer’s stereotype about how men are supposed to present themselves and dress in the workplace.  Rost stated in his deposition that he objected to men dressing as women – which is how he views Stephens in light of his religious belief that gender identity is just a social construct that violates God’s plan and not a reality.

After reviewing the court’s prior transgender discrimination decisions, Judge Moore concluded that the EEOC’s view of the statute to cover gender identity discrimination directly, without reference to sex stereotypes, is correct.  “First,” she wrote, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”

She referred to the 7th Circuit’s Hively decision, a sexual orientation case, which employed the same reasoning to find that Title VII covers sexual orientation claims.  “Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women’s dress code.  The answer quite obviously is no.  This, in and of itself, confirms that Stephens’ sex impermissibly affected Rost’s decision to fire Stephens.”

The court also referred to a landmark ruling by the U.S. District Court in the District of Columbia, Schroer v. Billington, 577 F. Supp. 2nd 293 (D.D.C. 2008), which allowed a transgender discrimination claim against the Library of Congress, which had withdrawn an employment offer when informed that the applicant was transitioning.

And, of course, the court noted the Supreme Court’s Price Waterhouse v. Hopkins ruling (490 U.S. 228 (1989)), stating that Title VII requires “gender” to be “irrelevant to employment decisions.”  Moore wrote, “Gender (or sex) is not being treated as ‘irrelevant to employment decisions’ if an employee’s attempt or desire to change his or her sex leads to an adverse employment decision.”

Of course, Moore noted, transgender discrimination implicates the sex stereotype theory as well.  Referring to Smith v. City of Salem, she wrote, “We did not expressly hold in Smith that discrimination on the basis of transgender status is unlawful, though the opinion has been read to say as much – both by this circuit and others,” and then proceeded to say as much!  “Such references support what we now directly hold: Title VII protects transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.”

In light of this holding, the funeral home had to be found in violation of the statute unless it was entitled to some exception or some affirmative defense.  One argument made in an amicus brief in support of the funeral home suggested that a person employed as a funeral director could be covered by the constitutionally-mandated ministerial exception recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).  The Supreme Court said that it is a component of free exercise of religion that if somebody is being employed to perform religious functions, the government could not dictate the hiring decision.  The court rejected this defense, noting that the funeral home has conceded that it is not a “religious organization” and was not claiming the “ministerial exception” for any of its employees.  Furthermore, even if the funeral home tried to claim the exception, the court found it would not apply to the position of a funeral director in a for-profit funeral home business.  Stephen was not employed to serve a religious function, and the duties of a funeral directly only incidentally involved any religious function in the way of facilitating participation of religious funeral celebrants.

Turning to the RFRA defense, the court first dispensed with the argument that as Stephens had intervened as a co-plaintiff, RFRA had been rendered irrelevant because this was no longer purely a government enforcement case.  The EEOC remains the principal appellant in the case, and the court would not dismiss the RFRA concern on that basis.

However, the court found, significantly, that requiring the funeral home to employ Stephens after her transition would not impose a “substantial” burden within the meaning of RFRA.  The funeral home argued that the “very operation of the Funeral Home constitutes protected religious exercise because Rost feels compelled by his faith to serve grieving people through the funeral home, and thus requiring the Funeral Home to authorize a male funeral director to wear the uniform for female funeral directors would directly interfere with – and thus impose a substantial burden on – the Funeral Home’s ability to carry out Rost’s religious exercise of caring for the grieving.”

Rost suggested two ways this would impose a substantial burden.  First, he suggested, letting Stephens dress as a woman “would often create distractions for the deceased’s loved ones and thereby hinder their healing process (and the Funeral Home’s ministry),” and second, “forcing the Funeral Home to violate Rost’s faith would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people.”  The court did not accept either of these as “substantial within the meaning of RFRA.”

For one thing, a basic tenet of anti-discrimination law is that businesses may not rely on customer preferences or biases as an excuse to refuse to employ people for a reason forbidden by Title VII.  Courts have ruled that even if it is documented that employing somebody will alienate some customers, that cannot be raised as a defense to a valid discrimination claim.  “We hold as a matter of law,” wrote Moore, “that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.”

The court rejected Rost’s argument that the EEOC’s position put him to the choice of violating his religious beliefs by, for example, paying for a women’s uniform for Stephens to wear, or otherwise quitting the funeral business.  The court pointed out that there is no legal requirement for Rost to pay for uniforms for his staff.  This is distinguishable from the Hobby Lobby case, where the issue was a regulation requiring employers to bear the cost of contraceptive coverage.  Further, wrote Moore, “simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA,” because “as a matter of law, tolerating Stephens’ understanding of her sex and gender identity is not tantamount to supporting it.”

Since the court found no substantial burden, it did not necessarily have to tackle the question of the government’s justification for imposing any burden at all.  But with an eye to a likely appeal of this case, the court went ahead to determine whether, if it is wrong about this and the Supreme Court were to find that this application of Title VII to Rost’s business does impose a substantial burden, it passes the strict scrutiny test established by RFRA.

As to this, the court reached perhaps its most significant new ruling in the case: Having identified gender identity claims as coming within the ambit of sex discrimination claims, the court had to determine whether the government has a compelling interest and that enforcing Title VII is the least intrusive way of achieving that interest.  Even the Funeral Home was willing to concede that on a general level the government has a compelling interest, expressed through Title VII, in eradicating sex discrimination in the workplace, but the Funeral Home argued that interest did not justify this particular case, compelling it to let a man dress as a woman while working as a funeral director.  “The Funeral Home’s construction of the compelling-interest test is off-base,” wrote Moore.  “Rather than focusing on the EEOC’s claim – that the Funeral Home terminated Stephens because of her proposed gender nonconforming behavior – the Funeral Home’s test focuses instead on its defense that the Funeral Home merely wishes to enforce an appropriate workplace uniform.  But the Funeral Home has not identified any cases where the government’s compelling interest was framed as its interest in disturbing a company’s workplace policies.”  The question, according to the court’s interpretation of Supreme Court precedents, is whether “the interests generally served by a given government policy or statute would not be ‘compromised’ by granting an exemption to a particular individual or group.”

“Failing to enforce Title VII against the Funeral Home means the EEOC would be allowing a particular person – Stephens – to suffer discrimination, and such an outcome is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce.” And, continued Moore, “here, the EEOC’s compelling interest in eradicating discrimination applies with as much force to Stephens as to any other employee discriminated against based on sex.”

The court specifically rejected the Funeral Home’s argument that its religious free exercise rights should take priority as being derived from the 1st Amendment, because that would go directly against Supreme Court precedent, which has rejected the idea that individuals and businesses generally enjoy a 1st Amendment right to refuse to comply with laws because of their religious objections.  Congress did not have authority, in the first version of RFRA that it passed and that was invalidated by the Supreme Court, to overrule a Supreme Court decision.  What RFRA does is to create a statutory right, not to channel a constitutional right, and the statutory right is circumscribed to cases where a federal law imposes a substantial burden on free exercise without having a compelling justification for doing so.  This does, not, according to the 6th Circuit, elevate a business’s free exercise rights above an individual’s statutory protection against discrimination.  (Indeed, Justice Samuel Alito said as much in his Hobby Lobby opinion for the Supreme Court, albeit in the context of race discrimination.)

Finally, as required by RFRA, the court found that requiring compliance with Title VII was the least restrictive means available for the government to achieve its compelling interest in eradicating employment discrimination because of sex.  The district court had suggested that the EEOC could pursue a less restrictive alternative by getting the parties to agree to a gender-neutral uniform for the workplace, thus removing Rost’s objection to a “man dressed as a woman.”  “The district court’s suggestion, although appealing in its tidiness, is tenable only if we excise from the case evidence of sex stereotyping in areas other than attire,” wrote Judge Moore.  “Though Rost does repeatedly say that he terminated Stephens because she ‘wanted to dress as a woman’ and ‘would no longer dress as a man,’ the record also contains uncontroverted evidence that Rost’s reasons for terminating Stephens extended to other aspects of Stephens’s intended presentation.”  It was not just about the uniforms.

The court could have reversed the summary judgment and sent the case back to the district court to reconsider its holding and determine whether a trial was needed, but in fact there are no material facts in dispute once one treats the 6th Circuit’s opinion as presenting the law of the case on interpreting Title VII and RFRA.  With no material facts to be resolved at this stage, the 6th Circuit directly granted summary judgment to the EEOC on its claim that the Funeral Home violated Title VII and is not entitled to a defense under RFRA.  Stephens won on the merits, unless the Funeral Home is successful in getting the Supreme Court to take the case and reverse the 6th Circuit’s decision.

The appeal was argued for the EEOC by Anne Noel Occhialinio, and for Stephens by ACLU attorney John A. Knight.  Douglas G. Wardlow of Alliance Defending Freedom argued on behalf of the Funeral Home.  The case attracted amicus briefs from Lambda Legal, Americans United for Separation of Church and State, Cleveland-Marshall College of Law, Private Rights/Public Conscience Project (New York) and various law firms offering pro bono assistance to amici on briefs.

Judge Moore was appointed to the court by President Bill Clinton.  The other judges on the unanimous panel were Helene N. White, appointed by President George W. Bush, and Bernice W. Donald, appointed by President Barack Obama.  Showing a recent trend in diversifying the federal bench, the panel was, unusually, made up entirely of female circuit judges.  As a result of several appointments by President Obama, half of the active judges on the 6th Circuit are women, the only federal appellate court yet to achieve gender parity.

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U.S. Court Orders Idaho to Issue Birth Certificates to Transgender Applicants

U.S. Magistrate Judge Candy Dale (D. Idaho), has ordered the state of Idaho to allow transgender people born there to obtain birth certificates correctly identifying them according to their gender identity.    F.V. & Martin v. Barron, 2018 WL 1152405, 2018 U.S. Dist. LEXIS 36550.  Once Idaho has complied with Judge Dale’s March 5 Order, the only states where transgender people can’t get appropriate new birth certificates will be Ohio, Tennessee, and Kansas.  Also, the Commonwealth of Puerto Rico, a U.S. territory, does not provide such birth certificates. The other 46 states and the District of Columbia do, although the criteria for getting them vary from state to state.

Judge Dale ruled in a lawsuit filed by Lambda Legal on behalf of two transgender women born in Idaho, whose birth certificates identify them as male and use the names their parents gave them at birth.

One, F.V., states that “she knew from approximately 6 that she was female” and she “began to live openly as a female when she was 15 years old” and has done so since.  She has transitioned “both medically and socially,” and has gotten a legal name change, which she then used to get a new driver’s license, passport, and social security card.  However, when she contacted the Idaho Bureau of Vital Records and Health Statistics in the Department of Health and Welfare to get a new birth certificate, she was told that the Bureau “does not consider such applications.”

According to Judge Dale’s opinion, “F.V. asserts that living with a birth certificate declaring she is male is a permanent and painful reminder that Idaho does not recognize her as she is – as a woman.  Beyond this, she states that presenting an identity document that conflicts with her gender identity is both humiliating and dangerous: it puts her at risk of violence by disclosing against her will and intentions that she is a transgender individual.”

The other plaintiff, Dani Martin, tells a similar story, having known from an early age that she was female despite her birth name and anatomy.  However, writes Judge Dale, “fear of rejection and bullying prevented her from coming out when she was younger.”  With support from her spouse and family she began to transition in 2014.  She has lived as a woman since then, taking steps both medically and socially to “bring her body and expression of gender in line with her female identity.”

Like F.V., Dani has legally changed her name and obtained a new driver’s license and social security card, but the state’s policy blocked her from getting a new birth certificate, which, she claims, “has exposed her to harassment and embarrassment,” and has “prevented her from making the change in other important records.”

Lambda’s complaint charged that Idaho’s policy against issuing new birth certificates violates the 1st and 14th Amendments of the Constitution, citing both the due process and equal protection clauses.  Judge Dale decided to confine her ruling to the Equal Protection claim.

Any law or policy that systematically treats people differently based on any characteristic requires a rational, non-discriminatory justification.  In this lawsuit, the state conceded that there was no rational basis for refusing to issue the requested certificates, but such changes are not specifically authorized under the state’s vital statistics statute, and evidently the state administration was either unwilling to ask the legislature to change that or calculated – probably correctly – that any such request would be futile.  Theoretically, the administration could change the policy by adopting a new rule, but was not willing to take whatever political heat that would generate.  In effect, the state’s response to the lawsuit was to ask the court to issue an order, so that state officials could refute any criticism by putting the “blame” for this change on the court.

Idaho does issue new birth certificates for a variety of reasons, including correcting factual errors made at birth, adding listing of fathers for people born to unmarried women, in response to later acknowledgements or determinations of paternity, and changing names and paternal and maternal information as a result of adoptions.  In those cases, “the vital statistics laws require the amendments not be marked or noted on the birth certificate,” but a “catch-all” provision in the law, which applies to any birth certificate changes that are not specifically authorized by the statute, says that amendments made under the “catch-all” provision “must be described on the birth certificate.”  Since including such information on a new certificate would effectively “out” any transgender person presenting their certificate for any reason, the lawsuit sought to ensure that the requested certificates appear completely ordinary on their face, with no indication of amendment or special circumstances, and Judge Dale incorporate this in her order.

The only real dispute between the parties was whether the court should go beyond the state’s concession that it had no rational policy justification for an outright denial of new birth certificates for transgender people, to determine whether gender identity itself is a “suspect classification,” imposing a high level of justification for the challenged policy.  The state urged Judge Dale not to do that,  but the plaintiffs, concerned about the possibility that the state might come up with a new rule imposing costly barriers to obtaining the new licenses – such as a requirement for complete surgical transition, which is still the rule in many other states – asked Judge Dale to determine that a more demanding level of judicial review would apply in evaluating any such rule.

Siding with the plaintiffs, Dale extended her opinion to provide a detailed discussion of gender identity and its status under federal constitutional law, concluding that heightened scrutiny should be applied.  After reviewing advances in the understanding of human sexuality, she wrote, “to conclude discrimination based on gender identity or transsexual status is not discrimination based on sex is to depart from advanced medical understanding in favor of archaic reasons.”  Under binding Supreme Court precedents, discrimination because of sex requires heightened scrutiny.

Furthermore, Judge Dale found, gender identity or transgender status should be treated the same way that the 9th Circuit (whose jurisdiction includes Idaho) has treated sexual orientation or homosexual status.  “The pervasive and extensive similarities in the discrimination faced by transgender people and homosexual people are hard to ignore,” she wrote. “(1) Transgender people have been the subject of a long history of discrimination that continues to this day; (2) transgender status as a defining characteristic bears no ‘relation to ability to perform or contribute to society;’ (3) transgender status and gender identity have been found to be ‘obvious, immutable, or distinguishing characteristics;’ and (4) transgender people are unarguably a politically vulnerable minority.”

“This is especially true in Idaho,” the judge commented, “where transgender people have no state constitutional protections from discrimination based on their transgender status in relation to employment decisions, housing, and other services.  Therefore, transgender people bear all of the characteristics of a quasi-suspect class and any rule developed and implemented by IDHW should withstand heightened scrutiny review to be constitutionally sound.”   This would mean that any challenged requirement would have be supported by an important government interest that the requirement is shown to have substantially advanced.  Under this standard, it is unlikely that a surgical requirement would withstand judicial review, as many other states (and countries) have come to agree that imposing such a requirement poses an unnecessary barrier to the ability of many transgender people to obtain appropriate official documentation, without serving any significant public purpose.

Judge Dale pointed out that the state already has in place an established procedure for dealing with amendments to birth certificates, so “allowing such amendments would pose no new burden on Defendants,” since “Idaho vital statistics laws allow IDHW to create and implement a constitutionally-sound rule, and IDHW already has in placed processes and procedures to  facilitate the amendment of birth certificates in the ordinary course of its everyday activities.”  Thus, she found it appropriate to issue an injunction, giving the state up to one month to “begin accepting applications made by transgender people to change the sex listed on their birth certificates,” and specifying that the new certificates “must not include record of amendment to the listed sex” and should use the new legal name of the applicant.

The plaintiffs are represented by Lambda Legal attorneys Peter Renn and Kara Ingelhart, with pro bono local counsel Monica G. Cockerille of Boise, Idaho.

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2nd Circuit, En Banc, Votes 10-3 That Sexual Orientation Discrimination Violates Federal Employment Discrimination Law

The U.S. Court of Appeals for the 2nd Circuit, with appellate jurisdiction over federal cases from New York, Connecticut and Vermont, ruled on February 26 that Title VII of the Civil Rights Act of 1964, which prohibits discrimination because of an individual’s sex, also makes it unlawful for employers to discriminate against a person because of his or her sexual orientation.

 

The ruling in Zarda v. Altitude Express, Inc., 2018 U.S. App. LEXIS 4608, was not unexpected, as the questions and comments of the judges during the oral argument held on September 26, 2017, suggested general agreement that it was time for the 2nd Circuit to bring its case law in line with the evolving understanding that sexual orientation discrimination is a form of sex discrimination.

 

The Zarda ruling widens a split among federal appeals courts, as the 2nd Circuit joins the Chicago-based 7th Circuit, which ruled the same way last spring in Hively v. Ivy Tech Community College, in departing from the consensus of all the other circuit courts that have previously addressed the issue.  Although the Supreme Court recently refused to review a three-judge panel decision from the Atlanta-based 11th Circuit, Evans v. Georgia Regional Hospital, which had decided the other way, the Zarda ruling makes it more likely that the Court will soon take up the issue, especially if an employer on the losing end of the argument petitions the court to do so.

 

The Zarda case dates from the summer of 2010, when Donald Zarda, an openly gay sky-diving instructor, was fired by Altitude Express after a female customer’s boyfriend complained that Zarda had “come out” to his girlfriend while preparing for a “tandem skydive” during which they would be strapped together.

 

Zarda complained to the Equal Employment Opportunity Commission (EEOC), which at that time had not yet accepted the idea that sexual orientation claims violate Title VII. In his EEOC charge, Zarda asserted that he suffered discrimination because of his gender, complaining that he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.”  The EEOC, which did not then take a position on the merits of his claim, issued him a letter authorizing him to bring a lawsuit, which he did in the U.S. District Court for the Eastern District of New York.

 

Zarda’s court complaint cited Title VII, alleging sex discrimination (including discrimination because of a failure to conform to gender stereotypes), and the New York Human Rights Law, which explicitly outlaws sexual orientation discrimination.  The district court rejected his Title VII claim, following 2nd Circuit precedent, but allowed his state law claim to go to trial, where a jury ultimately ruled against him.  By the time of the trial, unfortunately, Zarda had died in a sky-diving accident, but the lawsuit was continued by his estate, seeking damages for employment discrimination.

 

In July 2015, the EEOC changed its view of the sexual orientation issue under Title VII, issuing a decision in the case of David Baldwin, a gay air traffic controller suing the U.S. Transportation Department.  The EEOC held that when an employer discriminates because of a person’s sexual orientation, the employer is unlawfully taking account of the person’s sex in making an employment decision.  Zarda’s Estate sought reconsideration of its Title VII claim from the district court, but was turned down, and encountered the same rejection from a three-judge panel of the court of appeals last spring.  The three-judge panel consisted of Circuit Judges Dennis Jacobs, Robert Sack, and Gerard Lynch.

 

However, in a different case decided last spring, Christiansen v. Omnicom Group, also presenting the sexual orientation issue under Title VII, a three-judge panel applied 2nd Circuit precedent to reject a sexual orientation claim but, in a concurring opinion, Chief Judge Robert Katzmann, taking note of the 7th Circuit’s Hively ruling and the EEOC’s Baldwin decision, suggested that the 2nd Circuit should reconsider its precedent in an appropriate case.  That would require a rare “en banc” review by the full bench of the Circuit.  The Zarda case, decided shortly after Christiansen, provided the opportunity for this, and the Circuit voted to grant a petition for reconsideration.

 

The panel that heard arguments on September 26 included all eleven active judges of the circuit plus two senior judges, Robert Sack and Gerard Lynch, who were part of the three-judge panel whose decision was being reconsidered.

 

All ten judges in the majority agreed with the proposition that individuals can bring a sexual orientation discrimination claim under Title VII, but only five judges agreed to base their decision on the three different theories that the EEOC and the 7th Circuit had embraced in their decisions.

 

Judge Katzmann wrote what the court described as the “majority opinion,” basically channeling his concurring opinion from the Christiansen case.  “Logically, because sexual orientation is a function of sex and sex is a protected characteristic under title VII, it follows that sexual orientation is also protected,” wrote Katzmann, explaining the first of three theoretical bases for the ruling, continuing that “because sexual orientation discrimination is a function of sex, and is comparable to sexual harassment, gender stereotyping, and other evils longs recognized as violating Title VII, the statute must prohibit it.”

 

“Our conclusion is reinforced by the Supreme Court’s test for determining whether an employment practice constitutes sex discrimination,” he continued.  “This approach, which we call the ‘comparative test,’ determines whether the trait that is the basis for discrimination is a function of sex by asking whether an employee’s treatment would have been different ‘but for that person’s sex.’”  Here her reverted to the 7th Circuit’s Hively decision, where that court found that a lesbian college professor, a woman who was attracted to women, would not have been fired if she was attracted to men.  “But for” her being a woman, her attraction to women would not have led to her discharge.

 

“To determine whether a trait operates as a proxy for sex,” he wrote, “we ask whether the employee would have been treated differently ‘but for’ his or her sex.  In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to a woman would have been treated differently if she had been a man who was attracted to women.  We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”

 

The second theory is the gender stereotype theory.  “Specifically,” wrote Katzmann, “this framework demonstrates that sexual orientation discrimination is almost invariably rooted in stereotypes about men and women.”  He reviewed the history of Supreme Court rulings developing the stereotype theory in the context of sex discrimination.

 

Finally, he turned to the associational theory, noting that the 2nd Circuit had accepted this theory in the context of race discrimination in a 2008 decision involving a white man who was discharged because he had married a black woman.  The court had found that this was discrimination because of both his race and the race of his wife, and thus violated Title VII.  Applying the reasoning of that case, he wrote, “if a male employee married to a man is terminated because his employer disapproves of same-sex marriage, the employee has suffered associational discrimination based on his own sex because ‘the fact that the employee is a man instead of a woman motivated the employer’s discrimination against him,’” quoting from the EEOC’s Baldwin decision.

 

Katzmann rejected the argument that the failure of Congress to approve any of more than fifty bills that have been introduced since the 1970s to add sexual orientation to the prohibited grounds for discrimination under federal law should defeat Zarda’s claim, or that the failure of Congress to address this issue when it amended Title VII in 1991 to overrule several Supreme Court decisions on other discrimination issues should be construed to constitute congressional approval of the three court of appeals decision that had up to that time rejected sexual orientation claims under Title VII.

 

This appeal was unusual in that the government filed amicus briefs and made arguments on both sides of the issue.  The EEOC filed a brief supporting the Zarda Estate’s claim that Title VII covers sexual orientation claims, consistent with its ruling in the Baldwin case, but the Justice Department filed a brief and participated in the oral argument on the other side, taking the view, consistent with Attorney General Jeff Sessions’ announced position, that Title VII does not cover sexual orientation or gender identity claims.  A large portion of Judge Katzman’s opinion, which runs over 65 pages, was devoted to refuting various arguments made by the Justice Department.

 

Several of the concurring judges joined the result but limited their agreement to the associational discrimination theory, finding it to be consistent with the Circuit’s 2008 race discrimination case.  Judge Dennis Jacobs went further, explaining why he was not convinced by the other theories accepted by Judge Katzmann.  Judge Raymond Lohier, Jr., premised his agreement on Judge Katzmann’s “but for” argument.

 

Judge Jose Cabranes concurred in the judgment without signing on to any of the other opinions, characterizing this as “a straightforward case of statutory construction.” He wrote, “Zarda’s sexual orientation is a function of his sex.  Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.  That should be the end of the analysis.”

 

Judge Lynch’s dissenting opinion was actually longer than Judge Katzmann’s majority opinion, providing a detailed history of the adoption of Title VII to support his agreement with Judge Diane Sykes of the 7th Circuit (who dissented in the Hively case) that the court must confine its interpretation of Title VII to what the legislators thought they were enacting in 1964.  Their argument is that the role of the court in statutory interpretation is relatively modest, and does not extend to “updating” statutes to embrace new legal principles that are not clearly logical extensions of what the legislature intended to address.  Lynch went out of his way to say multiple times that he thinks sexual orientation discrimination is a bad thing, to laud the states that have banned such discrimination, and to bemoan the failure of Congress to address the issue.  But, he insisted, it was not the role of the court to impose new legal obligations on private employers under the guise of interpreting a statute adopted more than fifty years ago. Judges Debra Ann Livingston and Reena Raggi also dissented, agreeing with Judge Lynch.

 

Thus, the three dissenters premised their view on a judicial philosophy concerning the statutory construction rather than a view about whether sexual orientation discrimination should be illegal.

 

New York, Connecticut and Vermont already have state laws banning sexual orientation discrimination in the workplace, so the 2nd Circuit’s ruling does not alter the obligations of employers and the rights of employees in a substantial way.  But it opens the doors of the federal court houses to such discrimination claims, and there are some ways in which Title VII can provider a broader range of protection than the state laws.  For example, at the Zarda trial, the judge gave a jury charge that required a finding that Zarda’s sexual orientation was the motivating factor in his discharge.  Such a charge would be too narrow under Title VII, where a jury could find a statutory violation as long as sexual orientation was “a factor,” even if there were other factors contributing to the decision.  Thus, the jury’s verdict on the state law claim will not preclude a ruling in favor of Zarda’s Estate when the case is returned to the district court for disposition of the Title VII claim.

 

New York solo practitioner Gregory Antollino has represented first Zarda and then his Estate throughout the proceedings, with Stephen Bergstein as co-counsel for the Estate. Altitude Express, which now has to decide whether to petition the Supreme Court for review or to defend the case back in the Eastern District court, is represented by Saul D. Zabell of Bohemia, New York.  Arguing as amicus in support of Zarda were Jeremy Horowitz from the EEOC and Gregory Nevins from Lambda Legal.  Arguing as amicus in support of Altitude Express were Hashim M. Mooppan from the Justice Department and Adam K. Mortara, of Bartlit Beck Herman Palenchar & Scott LLP, Chicago, as a court-appointed amicus. The case attracted many other amicus curiae filings, including from the LGBT Bar Association of Greater New York, and a wide array of civil rights, civil liberties, and LGBT rights groups in support of Zarda’s appeal.  On the other side were arrayed the Justice Department and some conservative groups, including the Christian Legal Society, the National Association of Evangelicals, the U.S. Justice Foundation, and the Conservative Legal Defense and Education Fund.

 

 

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Iowa Appeals Court Affirms Ruling Against Lesbian’s Brother Attempting to Invalidate Bequest to Her Surviving Partner

 

David Lance Wilson struck out in his attempt to get the Iowa courts to hold that a provision in his late sister’s will leaving her entire estate to her long-time partner, Susan Woodall Fisher, was automatically revoked when the women allegedly split up nine years before the sister’s death. Affirming a summary judgment ruling by Crawford County District Judge Patrick H. Tott, the Iowa Court of Appeals ruled on February 7 in Estate of Wilson; Wilson v. Fisher, 2018 WL 739248, 2018 Iowa App. LEXIS 155, that Iowa’s Probate Code, Sec. 633.271(1), would only revoke such a bequest if a marriage was dissolved in a court action, but there is no court record of any such proceeding.

 

Although the court’s ruling was an unexceptionable interpretation of the statute on its face, the factual setting of the case is a bit odd, to say the least. In order to attempt to invoke the revocation statute, David Wilson had to allege in his petition for declaratory judgment that the women had been legally married, a contention that is demonstrably untrue, but which was accepted as an “undisputed fact” for purposes of this case in the responsive pleading filed by the co-executors of the estate, Fisher and John C. Werden, and thus by the court as well, in its opinion by Judge Christopher L. McDonald.

 

According to Judge McDonald’s summary of the factual allegations, Leslie Wilson and Susan Fisher, same-sex partners, were married in Colorado “sometime before November 6, 1991,” on which date Leslie “executed her last will and testament. Under the will, Susan was to receive Leslie’s entire estate.  Leslie’s brother, David, was listed as the successor beneficiary.”  After Leslie passed away in March 2014, Susan filed an application in the Crawford County District Court for probate of a “foreign probated will.”  District Judge Tott admitted the will into probate, and appointed Fisher and John C. Werden as “personal representatives” of the Iowa estate.  “Susan subsequently filed an election to take under the will as Leslie’s surviving spouse.  In June 2015, the personal representatives executed and recorded a court officer deed conveying an undivided one-half interest in real property owned by Leslie at the time of her death to Susan.”

 

David showed up six months later, filing his petition in the District Court alleging that Susan and Leslie had “dissolved” their marriage and that they “never cohabitated again and never remarried.” According to David, this dissolution, which involved terminating their relationship and dividing their assets, occurred in 2005.  He was relying on Code Section 633.271(1), titled “Effect of divorce or dissolution,” which states, “If after making a will the testator is divorced or the testator’s marriage is dissolved, all provisions in the will in favor of the testator’s spouse … are revoked by the divorce or dissolution of marriage, unless the will provides otherwise.”  Of course, this provision only applies if there was a marriage to begin with.

 

In a footnote, the court acknowledged that “same-sex marriages were not recognized in Colorado until October 2014. However, the parties stipulated in their pleadings that ‘Susan … and Leslie … were married in the state of Colorado’ prior to that time.  We need not address the issue of whether the parties were legally married in Colorado because it is immaterial to our resolution of the case.  If they were not legally married under Colorado law, then Iowa Code section 633.271(1)(2016) does not apply, and we would affirm.  Under the analysis used in this opinion, which assumes without deciding they were legally married, we also affirm.”

 

David sought to persuade the court that because the provision in question states “divorce or dissolution of marriage,” the words “divorce” and “dissolution” must refer to two different things. A “divorce” is obviously a legal proceeding terminating a marriage.  David argued that “dissolution” must, therefore, refer to an informal voluntary termination of a marriage by the parties without involving the courts.  But the court of appeals panel unanimously rejected this argument.

 

Judge McDonald referred to Chapter 598 of the Iowa code which “expressly defines a ‘dissolution of marriage’ as ‘a termination of the marriage relationship,’” and more specifically to Section 598.1(2), in which, he asserted, “The legislature has expressly directed that the term ‘dissolution of a marriage’ ‘shall be synonymous with the term ‘divorce.’” Thus, the court concluded, “the terms ‘divorced’ and ‘dissolved’ as used in Section 633.271(1) carry the same meaning – the statute uses the terms in the context of marital relations, and the legislature has expressly defined those terms in the context of marital relations to be synonymous.  In Iowa, a divorce or dissolution of a marriage may only be decreed by a court upon evidence ‘that there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonably likelihood that the marriage can be preserved.’”

 

As to the contention that parties can voluntarily “dissolve” a marriage without involving the courts, McDonald quoted a 1966 Iowa Supreme Court ruling, stating “We know of no such thing as a common law divorce.” McDonald found similar authority under Colorado law.

 

“It is undisputed that no decree has ever been entered dissolving Susan and Leslie’s marriage. The facts which David argues are in dispute are legally immaterial to the issue of whether Susan and Leslie’s marriage was dissolved.”  Thus, the court affirmed Judge Tott’s ruling granting summary judgment in favor of the Estate and co-executors, denying David’s request for a declaratory judgment that the bequest to Susan was automatically revoked.

 

The court also denied David’s request to delay ruling on the co-executors’ motion for summary judgment until he could obtain discovery. Such discovery would be irrelevant to disposition of this motion, because David’s attempt to use the statute to get the bequest to Susan “revoked” must be rejected regardless of which version of the “facts” one accepts, so long as there is no record of any court decree “dissolving” the Fisher-Wilson “marriage.”  And, of course, even if David is correct in asserting that the women split up and divided their assets in 2005, Leslie’s failure to revoke her will would leave the bequest in place in the absence of a valid marriage and a legal divorce.

 

Aaron W. Ahrendsen of Eich, Werden & Steger, P.C., Carroll, Iowa, represents the co-executors. Bradley J. Nelson of Norelius Nelson Law Firm, Denison, Iowa, represents David.

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