New York Law School

Art Leonard Observations

U.S. Supreme Court Denies Petition to Review Texas Supreme Court Ruling in Houston Benefits Case

On December 4 the U.S. Supreme Court rejected without explanation a petition from the City of Houston seeking review of the Texas Supreme Court’s June 30 ruling in Pidgeon v. Turner, which had cast doubt on whether the City was obligated under Obergefell v. Hodges, the 2015 marriage equality ruling, to provide same-sex spouses of Houston employees the same employee benefits offered to different-sex spouses.

A decision by the Supreme Court to deny review of a case is not a ruling on the merits of the case. In this case, it most likely means that there were not at least four members of the Court, the number required under the Court’s rules to grant a petition for review, who thought the Court should intervene in a lawsuit that is ongoing in the state trial court.  The Court’s action should not be construed as a decision approving the Texas Supreme Court’s ruling.  It is consistent with the Court’s tight control of its docket, under which sharply limits the number and type of cases that it takes up for review and rarely inserts itself into a case that has not received a final disposition in the lower courts.

Retired Texas Supreme Court Justice Wallace B. Jefferson and his law firm, Alexander Dubose Jefferson & Townsend LLP, filed the petition on behalf of Mayor Sylvester Turner and the City of Houston on September 15, several weeks after Lambda Legal had filed a new federal district court lawsuit on behalf of some Houston employees whose same-sex spouses are receiving benefits and who fear losing them in the state court litigation. Lambda’s suit was quickly dismissed by the federal trial judge as not “ripe” for review because the plaintiffs are receiving their benefits and it was likely, in the judge’s view, that the state trial court would rule that the benefits were legal in light of the current state of the law.

The Texas Supreme Court’s June 30 decision, which reversed a ruling by the Texas Court of Appeals, was not a final disposition of that case, instead sending it back to the trial court in Harris County for a hearing on the original claim by plaintiffs Jack Pidgeon and Larry Hicks, Republican anti-gay activists, that the City had unlawfully extended employee benefits eligibility to same-sex spouses of City employees in 2013.

Pidgeon and Hick first started litigating against the City when then-Mayor Annise Parker extended benefits eligibility by executive action after receiving an opinion from the city attorney about the impact of the U.S. Supreme Court’s June 26, 2013, ruling, U.S. v. Windsor, which struck down part of the federal Defense of Marriage Act. Pidgeon and Hicks argued that under Texas statutory and constitutional law at the time, it was illegal for the City to extend the benefits, as the U.S. Supreme Court’s Windsor decision did not address the constitutionality of state laws banning same-sex marriage.

Pidgeon and Hicks had a plausible argument in 2013, enough to persuade the trial judge to issue a preliminary injunction against the City, which promptly appealed. The Court of Appeals sat on the appeal for a few years, waiting for the storm of marriage equality litigation in Texas and throughout the country to play out.  Less than a year after the Windsor decision, a federal trial judge in San Antonio ruled that the state’s ban on same-sex marriage was unconstitutional, but the state’s appeal languished in the 5th Circuit Court of Appeals until after the U.S. Supreme Court decided the Obergefell case on June 26, 2015.  A few days later the 5th Circuit affirmed the trial court’s ruling invalidating the Texas laws banning same-sex marriages.  Then the Texas Court of Appeals reversed the preliminary injunction, instructing the trial court to decide the case in accord with the 5th Circuit’s ruling.  The City then resumed providing the benefits, which it has continued to do.

Undaunted, Pidgeon and Hicks asked the Texas Supreme Court to review the Court of Appeals decision, arguing that the Court of Appeals erred by instructing the trial court to follow the 5th Circuit’s ruling because, as a technical matter, state courts are not bound by federal court of appeals rulings.  They argued, in effect, that the City was still bound to abide by the Texas state law banning recognition of same-sex marriages for purposes of public employee benefits, which had never been invalidated in the state courts and, they argued, was technically not declared unconstitutional by the U.S. Supreme Court, whose opinion in Obergefell only directly struck down state marriage bans in the states of the 6th Circuit, Ohio, Michigan, Kentucky, and Tennessee.

After lengthy deliberation, the Texas Supreme Court announced in September 2016 that it would not consider Pidgeon and Hicks’ appeal. This prompted a fervent campaign by Governor Greg Abbott and other elected officials to persuade the court to change its mind, stimulating thousands of Texans to flood the court with demands that it reverse the Court of Appeals decision.  The court ultimately bowed to this pressure, granted review, and issued its June 30 decision.

The Texas Supreme Court agreed that the Texas Court of Appeals should not have treated the 5th Circuit’s decision as binding on the trial court, and opined further that the Obergefell decision was just about whether same-sex couples could marry as a question of federal constitutional law, not what benefits they were entitled to if they married.  This was palpably wrong, as shown by another Supreme Court ruling, just days prior, in Pavan v. Smith, a case from Arkansas involving parental names on birth certificates, in which the Court made clear that married same-sex couples are entitled to the “full constellation of rights” that go with marriage under the Obergefell decision.

At present Pidgeon and Hicks’ lawsuit is still pending in the state trial court and the same-sex spouses of Houston employees are receiving their equal benefits, so it is likely that the Supreme Court justices saw no pressing reason to add this case to their docket. Perhaps they agree with the opinion by U.S. District Judge Vanessa D. Gilmore, who, in dismissing Lambda’s lawsuit, in predicted that the state trial court, being bound to follow U.S. Supreme Court precedent in Obergefell and Pavan, will ultimately reject the challenge to the benefits.

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British Appeals Court Affirms Residential Child Custody for Gay Male Couple in Contest with Gestational Surrogate

A unanimous three-judge panel of the England and Wales Court of Appeal issued a decision on November 17 affirming a ruling by Justice Lucy Theis of the High Court Family Division that a gay male couple should have residential custody of a child born as a result of an unenforceable gestational surrogacy agreement they had entered with a married woman who sought to keep the child. Between: H (A Child); Re H (Surrogacy Breakdown), [2017] EWCA Civ 1798 (Case No: B4/2-17/-0064/FAFMF (Nov. 17, 2017).  Although the appeal had been presented as “involving novel issues about the interface between the Human Fertilisation and Embryology Act 2008 and the Child Act 1989,” wrote Lord Justice Andrew McFarlane for the Court of Appeal, “on examination these issues fell away and the argument ultimately boiled down to the question of whether the Judge erred on her evaluation of the evidence.”

A and B, the gay couple, entered into a surrogacy agreement with C and D, a “heterosexual married couple” who had five children. C, the wife, had been a gestational surrogate twice before.  The parties had met on-line in April 2015, and signed the surrogacy agreement in August of that year.  C and A traveled to a clinic in Cyprus, where A’s sperm was used to fertilize a donated egg, which was then implanted in C.  Thus, C would have no genetic relationship to the child.

The relationship between the parties deteriorated during the pregnancy, to the point where communication between them had ceased in March 2016. According to the opinion by Family Court Justice Theis, “At some point in late March 2016, C and D sought legal advice and decided that they were not going to hand over the child to A and B, as had been agreed between the parties as recorded in the agreement they signed in August 2015.  At this time, A and B were seeking to establish contact with C, but with no response.”  C gave birth to H in late April.  Due to difficulties with the birth and aftermath, she and the child remained in the hospital until May 6.

The day before the birth, C and D’s then-lawyer wrote to A and B, telling them that C and D were not prepared to follow the surrogacy agreement and would not be giving their consent to a parental order on behalf of A, the child’s biological father. Although correspondence between the attorneys occurred for ten days following H’s birth, A and C were not informed of the birth until May 10, by which time C and D had already registered the birth with the name they had chosen rather than that chosen by A and B.  A and B then filed suit, which resulted in arrangements being made for them to have contact with the child, which ultimately became a “shared care arrangement” up to the time of the hearing in Family Court.

Justice Theis appointed a Guardian for the child in the context of the hearings and hear testimony from all parties. Because C and D were not willing to cooperate with a parental order, they are considered the legal parents of H, as birth mother and her spouse at the time of the birth.  Surrogacy agreements are not enforceable under English law.  The intended father cannot obtain a parental order designating him as the legal parent in such a case without the cooperation of the birth mother and her spouse, if any.  The main question for the court was whether the child should reside with C and D, or with A and B, in light of the history of the child’s conception and the subsequent bonding through the shared care arrangement, and A’s claims as a biological parent.

C and D’s lawyer argued that “as a matter of law, C and D had a right ‘to change their minds and keep H.’,” wrote Lord Justice McFarlane. “It is undoubtedly correct that a surrogate mother has the right to change her mind,” he wrote, but noted that the lawyer “wisely withdrew from the submission that such a mother also had the right to have her own way about where the child should live.  She was also forced to concede that, while the six week ‘cooling off’ period protects a mother in relation to the important issue of consent to a parental order, it tells one nothing about what the best welfare arrangements for the child will be after birth.  That will depend on the circumstances, which will include, in addition to the factors in the [Child Act] 1989, sec. 1(3) checklist, the child’s gestational and legal parentage, his or her genetic relationships and the manner in which the intended surrogacy came about.”

The Guardian appointed for the child testified that A and B were better placed to meet “the more complex emotional needs of a child born in these circumstances” than were C and D. On this issue, it appeared that A and B were open to allowing H to have a relationship with C and D, but C and D were not disposed to encourage a relationship with A and B.  Both couples were seen as capable of meeting the child’s “ordinary physical, emotional and educational needs.”  The Guardian recommended that H should live with A and B and have visiting contact with C and D, ultimately recommending that such contact should take place six times a year until the child’s 2nd birthday, subject to being increased at that time depending how the relationship developed.

Judge Theis accepted this recommendation, finding that it was best for H to live with A and B, with the recommended visiting schedule for C and D. As described by Lord Justice McFarlane, “The Judge therefore concluded that it would be best for H to live with A and B because (1) H’s identity needs as a child of gay intended parents would be best met by living with a genetic parent, (2) A and B could meet H’s day-to-day needs in an attuned way, (3) A and B were best bale to promote the relationship with C and D, having remained positive about their significance despite the difficulties, and (4) C and D were unlikely to significantly change their views about A and B.”

The Court of Appeal rejected C and D’s argument that placing the child with A and B was “equivalent to the making of a parental order,” pointing out that such an order “leaves the surrogate with no rights, and no right to apply to court. It would not provide for ongoing contact.”  Justice McFarlane observed that Justice Theis had explicitly recognized the ongoing role of C and D as legal parents of H.  He also rejected the argument that the Family Court was “obliged to strive to provide H with two homes and four functioning parents,” since it was “obvious that it was not likely to be in H’s interests to have more than one secure home base, and one couple who could be clearly identified as parents.”  The court rejected any argument that the Family Court’s decision was “punitive to C and D” for having abrogated the surrogacy agreement and behaved poorly towards A and B, finding that the judge’s concern was “relating less to what had happened in the past and more to the respective couples’ ability to respond,” and that she had repeatedly “acknowledged the love that all four adults felt for the child, but she was clear that one of the couples was better placed than the other to negotiate the challenges of the future.”

The Court of Appeal concluded its opinion with observations on two matters. “Firstly, we note that surrogacy is a complex area, ethically and legally, and that there are no internationally agreed norms,” wrote Justice McFarlane, endorsing Justice Theis’s observation that it would be desirable for the government to enact “a properly supported and regulated framework to underpin arrangements of this kind.”  The lack of any legal status for surrogacy agreements is a continuing source of difficulties, since the legal template for dealing with custody disputes between divorcing parents does not easily fit the situation when surrogacy arrangements break down during pregnancy.  And, the court devoted a final paragraph about A and B having “most unwisely and unaccountably” resorted to social media to discuss their situation, as to which the court “made an order restraining A and B from generating further publicity about this matter.”  Preserving confidentiality in contested custody cases is generally deemed to be in the best interest of the child.

The end result, which brought some startled comment from the gay press in the U.K., is that the surrogate, who has no genetic relationship to the child, continues, together with her husband, as legal parents, while the child will live with A and B as, in effect, de facto parents. The surrogate and her husband will have continuing contact with the child through the visitation order and, still to be sorted out in full, there may be some restrictions on where and when A and B can travel with the child outside the country.  The court’s call for the government to establish an appropriate statutory legal framework to govern such situations is heartfelt.

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Pennsylvania District Judge Refuses to Dismiss Transgender Student’s Title IX and Equal Protection Claims

U.S. District Judge Robert D. Mariani denied a school district’s motion to dismiss Title IX and Equal Protection claims by a transgender elementary school student in A.H. v. Minersville Area School District, 2017 U.S. Dist. LEXIS 193622, 2017 WL 5632662 (M.D. Pa., Nov. 22, 2017).  The court rejected the school district’s argument that in light of the Trump Administration’s “withdrawal” of a Guidance issued by the Obama Administration on protection for transgender students under Title IX, the complaint failed to state a valid claim.

A.H., the eight-year-old plaintiff (whose suit was brought by “her next best friend and mother, Tracey Handling”), classified male at birth, “was diagnosed with gender dysphoria while in kindergarten,” wrote Judge Mariani, explaining, “Under the care of a pediatric psychologist, Plaintiff and her family have been exploring ways for Plaintiff to express her gender identity at home, in school, and in the community. . . Since beginning kindergarten in 2014, Plaintiff has continuously presented herself both in and out of school as a female.  Plaintiff uses a female name, dresses in clothing traditionally associated with females, is addressed using female pronouns, and is known to her classmates as a female student.”  Even though A.H.’s mother, supportive of her daughter’s needs, asked that she be allowed to use the girls’ bathroom in school, the School Superintendent, Carl McBreen, said they would not allow it in order to protect the privacy of other students.

This was not a problem during kindergarten, since the kindergarten classroom has a single-use bathroom used by all the students, and the only adverse problem during A.H.’s kindergarten year came during a field trip, when teachers required A.H. to wait until all the boys had used a male-designated bathroom and then allowed A.H. to use that bathroom. “The incident upset Plaintiff and resulted in some of her classmates asking her why she, as a girl, was using the boys’ bathroom.”  A.H.’s mother questioned the principal about this.  His response was that it was “school policy that a child must use the bathroom that corresponds with the sex listed on the child’s birth certificate,” and talked about “protecting” the other students from A.H.  However, despite repeated requests, the school never showed A.H.’s mother an actual written policy.  Her request to allow A.H. to use girls’ bathrooms during A.H.’s first grade year was turned down, with Superintendent McBreen stating that “Minersville isn’t ready for this.”  While giving a school tour to Mrs. Handling, the principal referred to A.H. using male pronouns, even after she corrected him.

After the Obama Administration Guidance was distributed to all public school districts, Superintendent Breen informed Mrs. Handling that her daughter could use the girls’ restrooms at school, but the school “has not created any policy on bathroom access for transgender students.” A.H. filed suit seeking a court order to comply with Title IX and Equal Protection requirements.

In its motion to dismiss the Title IX claim, the school first argued that the Trump Administration’s withdrawal of the Obama Administration Guidance left “no legal basis to support a Title IX claim against the school district for transgender discrimination.” After concisely relating the sequence of events surrounding the Obama Administration Guidance and the Trump Administration withdrawal, Judge Mariani, quoting from Evancho v. Pine-Richland School District, 237 F. Supp. 3d 267 (W.D. Pa. 2017), noted that “The 2017 [Trump Administration] Guidance ‘did not propound any “new” or different interpretation of Title IX or [DOE’s restroom regulation], nor did the 2017 Guidance affirmatively contradict the 2015 and 2016 Guidance documents.”  Indeed, the Evancho court had observed, the 2017 Guidance “appears to have generated an interpretive vacuum pending further consideration by those federal agencies of the legal issues involved in such matters.”

“Thus,” wrote Judge Mariani, “the fact that the Department of Justice and the Department of Education withdrew their interpretation of Title IX does not necessarily mean that a school, consistent with Title IX, may prohibit transgender students from accessing the bathrooms that are consistent with their gender identity. Instead, it simply means that the 2016 Guidance cannot form the basis of a Title IX claim.”  Lacking a binding precedent on this issue from the U.S. Supreme Court or the 3rd Circuit Court of Appeals (which has jurisdiction over federal courts in Pennsylvania), Judge Mariani looked to the 7th Circuit’s decision in Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017), as well as the earlier decision from the Western District of Pennsylvania court in Evancho.  He observed that Title IX courts have looked to precedents under Title VII of the Civil Rights Act for guidance in determining the scope of protection under law banning discrimination because of sex, and that both the 7th Circuit and the Evancho court, following such precedents, had concluded, in the words of the 7th Circuit, that “a policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”  The 7th Circuit specifically rejected the argument that providing access to a gender-neutral single user restroom is “sufficient to relieve the School District from liability, as it is the policy itself which violates the Act.”  Similarly, the Evancho court, while noting that the law on this issue was currently “clouded with uncertainty,” determined that the transgender student plaintiffs in that case had “made a more than sufficient ‘showing’ in their Complaint of a right to relief under” Title IX.

Mariani pointed out that the Minersville school district had not attempted in its motion to distinguish these precedents or “present any arguments as to why this Court should not follow their holdings. The Court, further, sees no reason why the analysis and holdings of either Evancho or Whitaker are unsound when applied to the facts of this case.”  Mariani concluded, “Contrary to Defendant’s argument, a specific practice need not be identified as unlawful by the government before a plaintiff may bring a claim under Title IX . . .  Further, while the Court recognizes that the Amended Complaint seems to indicate that Plaintiff now has access to the girl’s bathroom at school and thus may not have alleged any continuing violation of Title IX, that does not undercut the fact that Plaintiff has adequately pleaded that a violation of Title IX occurred as some point in time.”  The judge also rejected the school’s argument that it did not, as a matter of law, have any “discriminatory intent” when it acted.  First, he pointed out, discriminatory intent was not a prerequisite to getting injunctive relief, just damages.  And, in any case, statements attributed to school officials could provide a basis for finding discriminatory intent.

Turning to the Equal Protection claim under the 14th Amendment, Judge Mariani found agreement of the parties that heightened scrutiny would apply to judicial review of the school’s alleged policy and its actions.  As to that standard, which requires the defendant to show that the challenged policy serve an important government objective, Judge Mariani found an absence of proof by the school district.  “Here,” he wrote, “Defendant does not advance any important objective that its bathroom policy served.  Instead, Defendant reiterates its argument that, in the absence of guidance from the government, Defendant made all reasonable efforts to accommodate Plaintiff,” but this argument fails.  “Plaintiff has adequately alleged the existence of a school policy that treated her differently on the basis of her transgender status or nonconformity to gender stereotypes.  As such, she has sufficiently stated a claim for relief under the Equal Protection Clause.”  As constitutional discrimination claims require a showing of discriminatory intent, the judge pointed to statements by school officials that adequately serve at this stage of the case as evidence of discriminatory intent.  Judge Mariani noted the similar rulings in Whitaker and Evancho, while also noting a contrary ruling from several years ago by a different district judge in the Western District of Pennsylvania, Johnston v. University of Pittsburgh, 97 F. Supp. 3d 657 (W.D. Pa. 2015), which for some reason the school district never even cited in support of its motion – perhaps because that opinion is somewhat of an embarrassment.

Judge Mariani was appointed to the court by President Barack Obama in 2011.

A.H. and her mother are represented by David L. Deratzian of Hahalis & Kounoupis PC in Bethlehem, Pennsylvania.

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A Second US District Judge Blocks Trump’s Ban on Transgender Military Service

A second federal district judge has issued a preliminary injunction against implementation of President Donald Trump’s August 25 Memorandum implementing his July 26 tweet announcing a ban on all military service by transgender individuals. Stone v. Trump, Civil Action No. MJG-17-2459 (D. Md.). The November 21 action by District Judge Marvin J. Garbis of the District of Maryland came just three weeks after a federal district judge in the District of Columbia, Colleen Kollar-Kotelly, had issued a preliminary injunction against two directives in Trump’s three-directive memo.  (See Doe v. Trump, 2017 U.S. Dist. LEXIS 178892, 2017 WL 4873042 (D.D.C. Oct. 30, 2017).  Judge Garbis took the next step, enjoining implementation of all three directives, finding that the plaintiff group represented by the American Civil Liberties Union (ACLU) in this case includes at least two individuals who had standing to challenge the directive against the military providing sex reassignment procedures for military personnel.

In his August 25 Memorandum, Trump directed that all transgender service members be discharged, beginning no later than March 23, 2018, and that the existing ban on accession of transgender members, scheduled to end on January 1, 2018, be extended indefinitely. His third directive provided that after March 23 the Defense Department cease providing sex reassignment surgery for transgender personnel, with a possible individual exception in cases where procedures were already under way and failure to complete them would endanger the health of the individual.  (Of course, those individuals, being identified as transgender, would be subject to discharge under the first directive in any event.)

On September 24, Secretary of Defense James Mattis issued a memorandum establishing an “interim policy,” announcing that he would meet the President’s deadline of submitting a “plan to implement the policy and directives in the Presidential Memorandum” by February 21, but until then, there would be no immediate effect on individual service members.

The ACLU filed this lawsuit in the U.S. District Court in Maryland on August 8. Three other lawsuits challenging the transgender ban are pending.  One filed on August 9 in the District of Columbia District Court has already resulted in the preliminary injunction issued by Judge Kollar-Kotelly.  The others are pending in the District Courts in Seattle and Los Angeles, where the plaintiffs are also seeking preliminary injunctions.

Judge Garbis leaned heavily on Judge Kollar-Kotelly’s October 30 ruling for much of his analysis, agreeing with her that heightened scrutiny applies to the plaintiffs’ equal protection claim and that the usual judicial deference to military policy decisions by the Executive Branch was not appropriate in this case. The judge took particular note of an amicus brief filed by retired military officers and former national security officials, who had written that “this is not a case where deference is warranted, in light of the absence of any considered military policymaking process, and the sharp departure from decades of precedent on the approach of the U.S. military to major personnel policy changes.”

Continued Garbis, “President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that ‘the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.’”

Indeed, Garbis concluded that heightened scrutiny was not even necessary to rule for the Plaintiffs on this motion. “The lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest,” he wrote, so it would fail the minimally demanding rationality test applied to all government policies.

Garbis closely followed the D.C. Court’s analysis of the grounds for jurisdiction in this case, rejecting the government’s argument that nobody had been harmed yet so nobody had standing to bring the case, and that it was not yet ripe for judicial resolution when Mattis had not yet made his implementation recommendations to the President. The adoption of a policy that violates equal protection is deemed a harm even before it is implemented, and the stigmatic harm of the government officially deeming all transgender people as unfit to serve the country is immediate.  The court found that Trump’s directive that Mattis study how to implement the president’s orders was not, in effect, a mandate to recommend exceptions or abandonment of the ban, thus undercutting the government’s argument that it is merely hypothetical or speculative that the ban would go into effect unless enjoined by the courts.

Garbis went further than Kollar-Kotelly to enjoin the sex reassignment directive because the ACLU’s plaintiff group included at least two individuals whose transition procedures have already been disrupted and will be further disrupted if the ban goes into effect. The D.C. Court had accepted the government’s argument that appropriate adjustments had vitiated any negative effect on the plaintiffs in that case who were seeking transition procedures, but Garbis found that the timing of the transition procedures for the plaintiffs before him would be disrupted if the ban goes into effect, so the harm was not merely hypothetical.

The court based the preliminary injunction on its finding that plaintiffs were likely to prevail in their equal protection argument, and did not address the due process argument in that context. However, in rejecting the government’s motion to dismiss the due process claim, Garbis accepted the plaintiffs’ argument that “it is egregiously offensive to actively encourage transgender service members to reveal their status and serve openly, only to use the revelation to destroy those service members’ careers.”

In perhaps the strongest statement in his opinion, Garbis wrote: “An unexpected announcement by the President and Commander in Chief of the United States via Twitter that ‘the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military’ can be considered shocking under the circumstances. According to news reports provided by Plaintiffs, the Secretary of Defense and other military officials were surprised by the announcement.  The announcement also drew swift criticism from retired generals and admirals, senators, and more than 100 Members of Congress.  A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.”

The only setback suffered by the plaintiffs was dismissal, without prejudice, of their claim that the policy violates 10 U.S.C. sec. 1074(a)(1), a statute the entitles active duty and reserve military members to medical care in military treatment facilities. The plaintiffs claimed that the sex reassignment directive exceeded the President’s authority by attempting to override a statute by “denying necessary medical care to a group of service member he happens to disfavor,” and that doing so through a unilateral White House memorandum rather than a regulation adopted pursuant to the Administrative Procedure Act was unlawful.  Garbis characterized the plaintiffs’ factual allegations in support of this claim as “conclusory” and thus not sufficient to meet the civil pleading requirement.  However, he wrote, “Perhaps Plaintiffs could assert an adequate and plausible statutory claim,” so he dismissed without prejudice, allowing the plaintiffs to seek permission to file an amendment that “adequately asserts such a claim if they can do so.”  This dismissal does not really affect the substance of the relief granted by the preliminary injunction or sought in the ongoing case, because Judge Garbis granted the preliminary injunction on constitutional grounds against implementation of Trump’s sex reassignment surgery, exactly the part of the Trump memorandum targeted by the statutory claim.

The Justice Department will likely seek to appeal this ruling to the 4th Circuit Court of Appeals, just as it had announced that it would appeal Judge Kollar-Kotelly’s ruling to the D.C. Circuit Court of Appeals.  By the time an appeal is considered, however, it is likely that preliminary injunctions will also have been issued by the district courts in Seattle and Los Angeles.  Maybe a united front of judicial rejections of the transgender ban will convince Trump and Attorney General Jeff Sessions, whose department is defending the ban, that it is time to withdraw the August 25 Memorandum and disavow the July 26 tweet.

Since the Administration takes the position that Presidential tweets are official policy statements of the President, a disavowal of the tweets would be necessary to render the policy fully withdrawn, one presumes, although this is unexplored territory. Interestingly, Judge Garbis followed Judge Kollar-Kotelly’s example by including a cut and paste version of the Trump tweet sequence in the background section of his opinion, and specifically identified policy announcement by tweet as a departure from normal procedure that contributes to the constitutional analysis.

Judge Garbis, a Senior U.S. District Judge, was appointed by President George H.W. Bush.

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New York Judge Waives Residency Requirement for Divorcing Polish Gay Couple

New York’s Domestic Relations Law, Section 230, sets residency requirements for married couples seeking to divorce in the state, which vary in length – one or two years — depending upon whether they were married in New York and have lived in the state continuously. This creates a problem for out-of-state same-sex couples who come to New York to marry and then return to a home jurisdiction that does not recognize same-sex marriages.  The problem is compounded, of course, if they want to divorce without at least one of them establishing residency in New York.  This is the problem faced by Andrej Gruszczynski and Wiktor Jerzy Twarkowski, Polish citizens who were married in the New York City Clerk’s Manhattan Marriage Bureau on December 6, 2013, having traveled to New York specifically to get married, and then returned to their home in Warsaw.  After a few years of marriage, they “mutually decided that they did not want to remain married to one another,” writes Justice Matthew F. Cooper in Gruszczynski v. Twarowski, 2017 N.Y. Slip Op. 27348, 2017 WL 4848485 (N.Y. Supreme Ct., N.Y. Co., Oct. 26, 2017), “but because Poland does not recognize same-sex marriage in any form, the parties could not turn to their local courts to obtain a divorce.”

They sought legal advice, and were counseled to file for divorce in New York. Gruszczynski’s attempt to do so by filing the papers in New York County’s “uncontested matrimonial calendar” in September 2016 was rejected by the Matrimonial Clerk.  The complaint for divorce alleges that there are no children, no assets to divide, no requests by either spouse for spousal maintenance, and no contest by the parties, who are mutually agreed that they should divorce.  All they desired was that a judge sign an order dissolving the marriage, with the only ground cited for divorce being “irretrievable breakdown of the relationship” by their mutual agreement to end it.  But the Clerk found that as both spouses reside in Poland, the statutory residential requirement of one year applicable to their situation acts as a bar, and the Clerk refused to accept the filing.

Their lawyer, Livius Ilasz, then filed a motion with Justice Cooper, seeking an order permitting an uncontested divorce despite the lack of residence. In affidavits accompanying the motion, both parties described how they traveled to New York City “specifically to avail themselves of this state’s right to marry, a right not afforded to them by their own country,” Cooper explained.  The men described “their need to avail themselves of New York’s no-fault divorce law so that they can dissolve a marriage that neither party wishes to continue,” wrote Cooper, and they “stress that if New York refuses to entertain the proceeding, they will face the prospect of being unable to find any forum in which they can be divorced.”  They called on the equitable powers of the court to waive the residency requirement and allow them to dissolve their marriage.

The case harkens back to the “wed-lock” phenomenon experienced by U.S. same-sex couples prior to June 26, 2015, when same-sex marriage (and, correlatively, divorce) became available in every state by judicial fiat from the Supreme Court. Reports surfaced in the media of occasional judges in non-equality states who were willing to bend the rules to help out local residents who had married out of state and needed to get a dissolution of a civil union, domestic partnership, or even a marriage.  But published decisions on the issue are scarce, so Justice Cooper’s effort may fill an important legal gap now for foreign nationals who come to the U.S. to marry and then return home.

“There are good reasons to allow this uncontested divorce action to proceed irrespective of the parties’ inability to meet the one-year residency requirement,” he wrote. He found that the plaintiff had made a “compelling argument that, under the circumstances presented here, a strict application of DRL Sec. 230 is inequitable and discriminatory.”  In an introductory portion of the opinion, the judge set out some background history, including how New York City had embarked on a promotional campaign after marriage equality became available in the state to lure out-of-staters to New York to get married, generating substantial additional business for the city’s hotel, restaurant, tourism and retail businesses.  Justice Cooper quotes a figure of a quarter of a billion dollars in extra business revenues during the first 12 months of the marriage equality era in New York, attributed to a statement issued in July 2012 by Mayor Michael Bloomberg.  Thus, New York was explicitly inviting people, such as the parties in this case, to come to New York to get married.

“Having accepted New York’s invitation to come and exercise their right to marry as a same-sex couple, the parties now find that they are being deprived of the equally fundamental right to end the marriage. Thus, they face the unhappy prospect of forever being stuck in their made-in-New York marriage, unable to dissolve it here or in their home country. Clearly, equity demands that the parties be spared such an excruciating fate,” Cooper wrote, noting a parallel decision by the Albany-based Appellate Division, 3rd Department (Dickerson v. Thompson, 88 App. Div. 3d 121 (2011)), authorizing a New York trial court to dissolve a Vermont Civil Union so that one of the civilly united parties would not have to move to Vermont to establish residency in order to terminate the relationship there.

Cooper explained the policy concerns that led New York to establish residency requirements for divorce. At a time when New York had liberalized its divorce law, there was fear that out-of-staters seeking to escape more demanding requirements in their home states (such as proving adultery by one partner, for example, for a fault-based divorce) would flock to New York to divorce, inundating the courts with the matrimonial contests of citizens of other states.  However, since those days divorce laws throughout the country have been dramatically altered to allow no-fault divorce everywhere – including, among the last to join the trend, recently in New York – so that the incentives to come to New York specifically to divorce – at least from elsewhere in the United States – have disappeared.  Given the current situation, wrote Cooper, “It is difficult to see how permitting plaintiff and defendant to pursue their uncontested divorce here would somehow open the floodgates to our courts.”  He pointed out that in the absence of any interest by Poland in adjudicating matrimonial issues for same-sex couples, New York is actually the jurisdiction having the most substantial interest in this marital relationship, which, after all, New York created.

“Basic fairness and social justice, along with the lack of any adverse impact on this state and its court system, all appear to be sufficient reasons to allow plaintiff to maintain this action for an uncontested divorce,” Cooper wrote. He also noted that some prior New York rulings had held that the residency provisions of Sec. 230 were not “a jurisdictional requisite” and, as the defendant was not objecting to the jurisdiction of the court based on the lack of residency of either party, the “defense” of lack of jurisdiction was effectively waived.

Granting the plaintiff’s motion, the court directed him to resubmit the uncontested divorce papers to the Matrimonial Clerk within 30 days, and the Clerk was directed to accept and forward the papers, “including the proposed judgment of divorce,” back to the judge’s chambers “for review and signature.” Nobody is going to appeal this ruling, so there will not be an appellate ruling that could create a binding precedent on trial courts, but Justice Cooper obviously took pains to write an opinion that would be a very persuasive precedent for future reference.

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Ohio Supreme Court Unanimously Rejects Constitutional Challenge to HIV Disclosure Law

The seven-member Ohio Supreme Court unanimously rejected a free speech and equal protection challenge to the state’s law making it a felony assault for a person who knows he is HIV-positive to engage in “sexual conduct” with another person without disclosing his HIV-positive status to this sexual partner.  State of Ohio v. Batista, 2017-Ohio-8304, 2017 WL 4838768, 2017 Ohio LEXIS 2172 (Oct. 26, 2017).  The court divided 4-3, however, on the appropriate legal analysis leading to its conclusion on the 1st Amendment part of the challenge.  Upholding an 8-year prison sentence for Orlando Batista, four members of the court ruled that the law regulated conduct rather than speech and that the state had a rational basis for imposing the criminal disclosure requirement for people living with HIV and not for those living with other, comparable, sexually-transmitted diseases, such as Hepatitis C, or engaging in other types of conduct that could transmit HIV.

Batista learned that he was HIV-positive while serving a prison sentence.  It appears that he was already infected before being incarcerated, but was unaware of that fact.  After his release, he had sex with his girlfriend without disclosing his diagnosis.  The opinion for the majority by Justice Terrence O’Donnell does not indicate whether Batista’s girlfriend became or was already infected, or whether Batista’s medical treatment had suppressed the virus to undetectable levels, which would make sexual transmission unlikely.

The statute under which the state convicted Batista states: “No person, with knowledge that the person has tested positive as a carrier of a virus that causes acquired immunodeficiency syndrome, shall knowingly engage in sexual conduct with another person without disclosing that knowledge to the other person prior to engaging in the sexual conduct.”  Batista argued that the statute unconstitutionally compelled people living with HIV to disclose their status, a form of government-compelled speech.  He also argued that singling out people living with HIV for this disclosure obligation in connection with sexual activity raised Equal Protection concerns, because people with other, similar infectious conditions were not burdened with this obligation or penalized for not disclosing to their sexual partners, and no disclosure obligation was placed on people engaging in non-sexual activities that could transmit HIV.

On behalf of the majority of the court, Justice O’Donnell wrote, “The First Amendment does not prevent statutes regulating conduct from imposing incidental burdens on speech,” and he argued that in this case, the statute was aimed directly at conduct: actually engaging in sexual conduct without having disclosed one’s HIV-positive status to the sexual partner.  He summoned in support decisions by appellate courts in Missouri (State v. S.F., 483 S.W.2d 385 (Mo. 2016)) and Illinois (People v. Russell, 158 Ill.2d 23, 630 N.E.2d 794 (1994)), both of which had rejected the argument that similar HIV-disclosure statutes targeted conduct.  The Missouri court had stated in 2016, “While individuals may have to disclose their HIV status if they choose to engage in activities covered by the statute, any speech compelled by it is incidental to its regulation of the targeted conduct and does not constitute a freedom of speech violation.”  The Illinois Supreme Court was even more direct, stating that the Illinois statute did not have “the slightest connection with free speech.”

Three members of the court disagreed with this mode of analysis, in a concurring opinion by Justice R. Patrick DeWine.  “The statute plainly regulates both conduct and speech,” wrote DeWine, as “one who tests positive for the human immunodeficiency virus (“HIV”) must tell his partner that he is HIV positive before engaging in sex.  When the government tells someone what he must say, it is regulating speech.”  But this conclusion did not get Batista any closer to victory on his appeal, as DeWine reasoned to the same conclusion as O’Donnell, finding that there was ultimately not a valid free speech claim because the state had met the necessary strict scrutiny test to justify a content-based regulation of speech.

“Under strict scrutiny,” wrote DeWine, “a content-based regulation of speech will be upheld only if it is narrowly tailored to achieve a compelling governmental interest and it is the least restrictive means of doing so.”  In this case, he found, there were two government interests.  One was preventing the spread of HIV, the other “ensuring informed consent to sexual relations,” noting that society has “long criminalized nonconsensual sexual relations.”  He found that the disclosure requirement was justified by both concerns.

While acknowledging testimony by Batista’s expert witnesses that advances in treatment for HIV infection had led to normal lifespans for those infected, rendering HIV infection no longer an “invariably fatal” disease, as it appeared to be when, for example, the Illinois Supreme Court’s decision was announced in 1994, DeWine wrote that the issue today isn’t whether the consequences of being infected are less serious now than they were years ago when the statute was passed.  Rather, he wrote, “the question is who gets to evaluate that risk: should the HIV-positive individual get to assess that risk for his sexual partner or should the partner get to make her own decision.  Fair to say that most – if not all – people would insist on the right to make that decision for themselves.”

DeWine saw the statute as intended to protect the uninfected as well as to restrain the infected.  “Though Batista invokes his right not to be forced to speak,” wrote the judge, “the victim’s rights in this case are at least equally worthy of protection.  I would concluded that the interrelated interests of the government that are manifest in the statute – protecting public health and ensuring informed consent – rise to the level of a compelling government interest.”

He also concluded that the obligation imposed by the statute was “narrowly tailored” to advance the government interest, by restricting the disclosure requirement to those who wish to have sex and requiring disclosure only to the partner with whom they wish to have sex.  “The only speech that is compelled is speech that is directly necessary for informed consent,” he wrote.  “I cannot fathom – and Batista has not advanced – any less restrictive or more narrowly tailored means that could have been employed by the government to achieve its interests here.”

As to the Equal Protection challenge, Justice O’Donnell wrote for a majority of the court that the comparison to Hepatitis C “is misplaced,” that the decision of which public health issues to address in such a statute is a legislative, not a judicial function.  “Here,“ he wrote, “the classification is individuals with knowledge of their HIV-positive status who fail to disclose that status to someone prior to engaging in sexual conduct with that person.  The valid state interest is curbing HIV transmission to sexual partners who may not be aware of the risk.  The statute’s treatment of individuals with knowledge of their HIV-positive status who fail to disclose that status to a sexual partner furthers the state interest here.”

Justice O’Donnell rejected the idea of having the court “weigh the wisdom of the legislature’s policy choices,” claiming that this ”beyond our authority.”  In an Equal Protection case, unless there is a suspect classification or fundamental right involved, all the state needs is a rational basis for its actions.  Since the majority of the court found no 1st Amendment free speech issue, and knowingly being HIV-positive is not a “suspect classification,” the court’s analysis is no more demanding than to ask whether the legislature had a conceivable basis for singling out HIV-positive people for this disclosure requirement.  He found that the lack of similar treatment for those knowingly infected with Hepatitis C “does not eliminate the rational relationship between the classification here – individuals with knowledge of their HIV-positive status who fail to disclose that status to sexual partners — and the goal of curbing HIV transmission.”

Judge O’Donnell also rejected Batista’s argument that the state was irrational in imposing the disclosure obligation in connection with sexual conduct and not in connection with other modes of HIV transmission.  “Simply because there are other methods of HIV transmission does not render the classification here without a rational basis,” he wrote, without further explanation.

Responding to the expert testimony on advances in treatment and reductions in the risk of transmission, O’Donnell wrote, “We recognize that there have been advancements in the treatment of individuals with HIV that may have reduced the transmission and mortality rates associated with the disease.  However, we cannot say that there is no plausible policy reason for the classification or that the relationship between the classification and the policy goal renders it arbitrary or irrational.”

Judge DeWine, writing for the concurring judges, also rejected Batista’s equal protection argument.  Having already concluded that the statute survived strict scrutiny on the First Amendment claim, it followed that it would survive any level of scrutiny on an equal protection analysis as well.

Reading these opinions is frustrating if one has kept up with the latest pronouncements by public health authorities on the efficacy of state-of-the-art HIV treatments to reduce the risk of sexual transmission to a negligible level, but evidently the court was unwilling to entertain seriously the proposition that the state does not have a legitimate interest in imposing the disclosure requirement across the board on HIV positive people, including those who do not pose a real risk of sexual transmission.  The likelihood that the court does not fully understand the scientific issues in this case seems high.

Batista was represented by attorneys from the Hamilton County Public Defenders office, but he did not lack exceptional support for his appeal, having drawn amicus brief support from the ACLU of Ohio, the Center for Constitutional Rights, the State Public Defenders office, and half a dozen HIV, LGBTQ and other civil rights and criminal defense advocates, including GLAD, HRC, NCLR, and the Treatment Action Group.

Justice O’Donnell’s opinion for the majority explicitly rejected both state and federal constitutional challenges.  It is open to Batista to seek U.S. Supreme Court review on the federal constitutional claims, but the Supreme Court rarely agrees to review decisions that could be premised on independent state constitutional grounds.  On the other hand, beyond passing mention of the state constitution, both the majority and concurring opinions focused on federal constitutional doctrines and precedents, and it is open to argue that federal constitutional protection for speech and equality is more protective of individual rights than the relevant state laws, which would provide a basis for the Supreme Court to take up the issue.

 

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Federal Judge Blocks Implementation of Trump’s Transgender Military Ban

In a blunt rebuke to President Donald Trump, U.S. District Judge Colleen Kollar-Kotelly, discerning no factual basis for Trump’s July 26 tweet decreeing a ban on military service by transgender people or the August 25 Memorandum fleshing out the decreed policy, issued a preliminary injunction on October 30, the effect of which is “to revert to the status quo with regard to accession and retention that existed before the issuance of the Presidential Memorandum – that is, the retention and accession policies established in the June 30, 2016 Directive-type Memorandum as modified by Secretary of Defense James Mattis on June 30, 2017.” Doe v. Trump, 2017 U.S. Dist. LEXIS 178892, 2017 WL 4873042 (D.D.C., Oct. 30, 2017).

The practical effect of the preliminary injunction, which will stay in effect until the court issues a final ruling on the merits of the case (unless an appellate court reverses it in the meanwhile) is that the policy on transgender service announced on June 30, 2016, by former Secretary of Defense Ashton Carter during the Obama Administration, will remain in effect and the President’s tweet and subsequent Memorandum purporting to revoke these policies, which the Administration planned to put into effect in February and March, are blocked for now. By incorporating reference to Secretary Mattis’s June 30, 2017, Directive, the judge’s order requires that the Defense Department allow transgender people to enlist beginning January 1, 2018.

Trump’s August 25 Memorandum had specified that the policy it announced would go into effect by no later than March 23, 2018, regarding the requirement to discharge all transgender personnel, and that the ban on enlistments would be permanent, at least until the President was persuaded that it should be lifted.

Key to the October 30 ruling was Kollar-Kotelly’s conclusion that at this stage the plaintiffs, represented by National Center for Lesbian Rights and GLBTQ Advocates and Defenders, have adequately established that they are likely to prevail on the merits of their claim that a ban on military service by transgender people violates their equal protection rights under the 5th Amendment, and that allowing the ban to go into effect while the case is pending would cause irreparable harm to them that could not be remedied later by monetary damages.

The judge concluded that a policy that explicitly discriminates against people because of their gender identity is subject to “heightened scrutiny” under the 5th Amendment, which means that it is presumed to be unconstitutional and the burden is placed on the government to show an “exceedingly persuasive” reason to justify it. “As a class,” she wrote, “transgender individuals have suffered, and continue to suffer, severe persecution and discrimination.  Despite this discrimination, the court is aware of no argument or evidence suggesting that being transgender in any way limits one’s ability to contribute to society.”

This was staking out new ground in the absence of a clear precedent by the U.S. Court of Appeals for the District of Columbia Circuit or the Supreme Court. Alternatively, she noted, other courts of appeals in the 6th and 11th Circuits have ruled that gender identity discrimination is really sex discrimination and should be evaluated by the same “heightened scrutiny” standard that courts use to evaluate sex discrimination claims against the government.  (A petition by the Kenosha, Wisconsin, school district is pending at the Supreme Court presenting the question whether gender identity discrimination is sex discrimination, in the context of Title IX of the Education Amendments of 1972 and bathroom access in public schools.)

As for the justifications advanced by the government for Trump’s ban, the judge wrote, “There is absolutely no support for the claim that the ongoing service of transgender people would have any negative effect on the military at all.   In fact, there is considerable evidence that it is the discharge and banning of such individuals that would have such effects.”

The judge also concluded that the public interest is served by blocking the ban, since harm to the military from allowing transgender service was non-existent while letting the ban go into effect would actually impose significant costs and readiness issues on the military, including the loss of a large investment in training of transgender people now serving and the cost of recruiting and training people to take their places.

A major part of Judge Kollar-Kotelly’s decision was devoted to refuting the Administration’s contention that she did not have jurisdiction to decide the case. She characterized their arguments as raising a “red herring,” at least in terms of the retention and accession portions of Trump’s Memorandum.  The government argued that because the August 25 Memorandum delayed implementation of the policy until next year, nobody had standing to challenge it yet, as none of the individual plaintiffs in the case has suffered tangible harm.  The judge accepted the plaintiffs’ argument that both intangible and tangible harm was imposed as soon as Trump declared his policy, stigmatizing transgender people as unworthy to serve, tarnishing their reputations, and creating uncertainty and emotional distress as to their future employment.  Furthermore, federal courts have long held that depriving a person of equal protection of the laws imposes an injury for purposes of constitutional standing to mount a legal challenge against a policy.

The issue that seems to have provoked Trump’s July 26 tweet was military payment for sex reassignment surgery. Several Republican House members, outraged by that chamber’s rejection of their proposed amendment to the Defense appropriations bill to bar any payment by the Department for such procedures, complained to the president and reportedly threatened to withhold their support for the must-pass appropriations bill if their demand was not met.  The simple-minded president apparently jumped to the obvious conclusion: barring all transgender people from the service would solve the problem while satisfying the anti-transgender biases of his political base.  In common with his other major policy proclamations by tweeting, this seemed to be impulsive, not vetted for legality or defensibility, and oblivious to the harm it would do to thousands of people.

The way in which Trump announced his decision contributed to the judge’s conclusions. The policy was announced without any factual basis, by contrast with the 2016 policy decision, which followed several years of study, a report by the RAND Corporation (a widely-respected non-partisan military policy think-tank), wide-ranging surveys and participation of numerous military officials.  The outcome of all this study was a well-documented conclusion that there was no good reason why transgender people should not be allowed to serve, explicitly rejecting the grounds raised by Trump in support of his decision.  The judge noted the irony of Trump’s methodology: first announce a ban, then a month later task Defense Department leaders with setting in motion a process to study the issue, and mandate that the policy go into effect several months later, with the study limited to recommending how to implement the ban.

Attorneys for the government argued, in effect, that the policy is still in development and that at present it is not clear what the final, implemented policy will be, including whether it would provide discretion to military leaders to decide whether to discharge individual transgender personnel or to allow particular individuals to enlist (such as, for example, highly qualified people who had already transitioned and thus would not be seeking such procedures while serving). Their arguments lacked all credibility, however, in light of the absolute ban proclaimed by Trump on July 26, and the directive to implement that ban contained in the August 25 Memorandum.

Judge Kollar-Kotelly granted the government’s motion to dismiss the part of the complaint relying on the theory of “estoppel” as opposed to their constitutional claim. She found that none of the plaintiffs had alleged facts that would support a claim that they had individually relied on the June 2016 policy announcement and its implementation in a way that would support the rarely-invoked doctrine that the government is precluded from changing a policy upon which people have relied.

Despite its length (76 pages), Judge Kollar-Kotelly’s opinion left some ambiguity about the very issue that sparked Trump’s tweet – availability of sex reassignment surgery for transgender personnel while this case is pending. Trump cited the cost of providing such treatment as one of the reasons for his ban, but the judge noted that the actual costs were a trivial fraction of the Defense Department’s health care budget.

However, the judge granted the government’s motion to dismiss the part of the complaint that specifically challenged Trump’s August 25 Memorandum dealing with sex reassignment surgery, because she found that none of the individual plaintiffs in the case had standing to challenge it or to seek preliminary injunctive relief against it while the case is pending. Among other things, the August 25 Memorandum provided that such procedures could continue to be covered until the implementation date of the policy next year, and that transitions that were under way could progress to completion.  And the government represented to the court that those procedures would continue to be covered at least until final implementation of the policy.  The dismissal was “without prejudice,” which means that if additional plaintiffs with standing are added to the complaint, this part of the case could be revived.

On the other hand, attorneys for the plaintiffs, announcing that the ruling was a total victory for their clients, argued that the order to revert to the June 2016 policy while the case is pending necessarily included the part of that policy that allowed for coverage of sex reassignment by the Defense Department for serving personnel. This conclusion is plausible but not certain, because the conclusion of the judge’s opinion specifies that the preliminary injunction applies to “the retention and accession policies” established in June 2016 and doesn’t explicitly say anything about coverage of reassignment procedures.  Of course, if DoD balks at covering the procedures, the plaintiffs can go back to the judge for clarification.

Response to the opinion by the White House and the Justice Department was dismissive, suggesting that an appeal is likely. Judge Kollar-Kotelly’s opinion is not the last word, since similar motions for preliminary injunctions are on file in several other district courts around the country where other groups of plaintiffs have filed challenges to the ban.

Judge Kollar-Kotelly’s judicial career began when President Ronald Reagan appointed her to be a District of Columbia trial judge in 1984. President Bill Clinton appointed her to the U.S. District Court in 1997.  Although she became eligible to take senior status many years ago, she continues to serve as a full-time active member of the federal trial bench at age 74.  Her rulings in major cases exhibit an independent, non-partisan approach to deciding politically-charged cases, with no clear predispositions reflecting the presidents who appointed her.

 

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Gay Man Wins New Trial of His Claims Against Key West Police

A unanimous three-judge panel of the Atlanta-based 11th Circuit Court of Appeals ruled on October 5 that Raymond Berthiaume is entitled to a new trial of his claims against the City of Key West and Police Officer David Smith stemming from Berthiaume’s arrest by Smith early on October 27, 2013. A jury ruled against Berthiaume at the first trial, after the judge had refused Berthiaume’s request that potential jurors be questioned about any anti-gay bias.  Berthiaume v. Smith, 2017 WL 4422465, 2017 U.S. App. LEXIS 19403 (note: the case will be published in Fed. Appx., not Fed. 3rd).

The court summarized the evidence introduced at trial:

Berthiaume was in Key West to attend the Fantasy Fest Parade on October 26 together with his then-partner and now-husband, Jhon Villa, his friend Corey Smith, and his former partner, Nelson Jimenez. After the parade, the group remained in the area for a street party.  By the early morning hours, all but Jimenez were ready to go home.  Jimenez remained in a bar while the others returned to their car, parked on a side street.

After waiting by the car for some time, Berthiaume went back to the bar to get Jimenez so they could finally go home. He led Jimenez out of the bar with his hand on Jimenez’s upper arm.  Jimenez grabbed the car keys and twisted out of Berthiaume’s grasp, running down an alleyway with Berthiaume in pursuit.

The two men were spotted by Lieutenant Smith and several other police officers, who thought they were seeing a fight between the two men and gave pursuit. Smith testified that Berthiaume appeared to be swatting and grabbing at Jimenez with both hands as Jimenez tried to pull away, but another officer who testified said that the only physical contact he saw was Berthiaume’s grasping of Jimenez’s upper arm as he attempted to bring Jimenez back to the car.  Testimony differed as to whether Berthiaume was running or walking after Jimenez.

When Smith caught up with Berthiaume, he pushed him in the shoulder to stop him from pursuing Jimenez. Berthiaume fell to the ground, suffering a fractured wrist and jaw (both of which ultimately required surgery).  Smith spoke to Jimenez, who thanked him for intervening but stated that nothing wrong had happened and he did not want to press charges against Berthiaume.  He also told Smith that the men were former partners and were trying to get back together.  Smith arrested Berthiaume anyway, based on his belief that this was a domestic dispute and that the standard practice of Key West police was to arrest a suspected domestic abuse assailant to assure separation of the parties for at least one night.

Smith also testified that it was appropriate for him to make the arrest despite Jimenez’s refusal to press charges, because Smith had seen (or so he believed) Berthiaume assaulting Jimenez. After investigating the situation, the local prosecutor decided to drop the charges against Berthiaume, who then filed suit against Smith and the City of Key West.

Berthiaume filed his lawsuit in the U.S. District Court, claiming violations of federal civil rights laws and Florida tort law, alleging claims of excessive force, false arrest, false imprisonment, battery/unnecessary force, and malicious prosecution. There was a three-day jury trial.

During jury selection, the judge questioned jurors about possible bias they might have against the police, but declined Berthiaume’s request that the jury be questioned about any possible bias they might have against gay people.   After the jury returned a defense verdict, Berthiaume moved for a new trial, arguing that he was deprived of a fair trial before an impartial jury.  He argued that gay people had only recently begun to gain acceptance in society, and many people still are biased or prejudiced against gay people.  Thus, he argued, in a case such as this, involving both a gay plaintiff and gay witnesses, it was necessary for the court to inquire into prospective jurors’ potential anti-gay bias before empaneling the jury.  The trial judge denied the motion, and Berthiaume appealed.

The appeals court pointed to Rosales-Lopez v. U.S., 451 U.S. 182, a 1981 Supreme Court decision, holding that under “special circumstances” the Constitution might require judges to ask questions about racial bias during jury selection in cases where racial issues are “inextricably bound up with the conduct of the trial” and there were “substantial indications” that the jurors might be affected by racial prejudice. In that criminal case, the Supreme Court said that the failure to ask such questions would lead to reversal of the conviction if the circumstances of the case indicated a reasonable possibility that racial prejudice might have influenced the jury.

Building on this precedent, the 11th Circuit had ruled in an unpublished decision in 2014, U.S. v. Bates, 590 F. App’x 882, that failure to inquire into anti-gay bias could also be grounds for reversing a criminal conviction. A gay man had been charged with possession of child pornography.  Police investigators examining his computer also found evidence that the defendant sought gay men for sex on the internet, including photos of him engaged in sex with other men.  The trial judge refused to question the jurors about anti-gay bias or to exclude the evidence, asserting that it was relevant to the charges against the defendant.  The man was convicted, after the prosecution “repeatedly paraded before the jury” the evidence regarding the defendant’s sexual activities with other men.  The 11th Circuit decided in that case that it was reasonably possible that anti-gay bias had affected the verdict and ordered a new trial.

“Here,” as in the earlier case, wrote the court, “Berthiaume’s sexual orientation and that of his witnesses became ‘inextricably bound up with the issues to be resolved at trial.’ In describing the events leading up to Berthiaume’s arrest, the witnesses repeatedly testified about Berthiaume’s romantic relationships with Jimenez and Villa.  Indeed, in explaining why he felt it necessary to arrest Berthiaume despite Jimenez’s refusal to press charges,” continued the court, “Lieutenant Smith explained that victims are often reluctant to press charges in ‘domestic situations’ such as these because they have mixed emotions about the perpetrator.”

Although the trial judge did pose general questions about bias to the jury, none of them were specific enough to determine whether any of the jurors might harbor prejudices against a gay man based on his sexual relationships. While the judge asked if the jurors could be impartial, the appeals court thought this was “not calculated to reveal latent prejudice.”  Thus, the court concluded, the district court “abused its discretion by failing to inquire about prejudice on the basis of sexual orientation during voir dire.”  Since the Defendants had not shown “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,” wrote the court, “Berthiaume is entitled to reversal.”

Since the jury was not informed during voir dire that the plaintiff and many of the witnesses were gay, they would have no reason to volunteer any information about anti-gay bias in response to the trial judge’s general questions. In this case, said the court, “the risk that latent, undiscovered prejudices may have influenced the jury’s verdict is substantial.”

Although the 11th Circuit, which covers the states of Alabama, Georgia and Florida, had long been seen as a conservative circuit, it experienced a drastic turnaround during the last administration, as President Obama was successful in appointing and getting confirmed five judges. Of the twelve active judges on the court, all but four were appointed by Democratic presidents.  The panel that decided this case included two Clinton appointees (one a senior judge from the 6th Circuit filling out the panel) and one Obama appointee.  Thus far, Donald Trump has appointed one judge to the 11th Circuit who has been confirmed, joining appointees of Presidents Ford, George H.W. Bush, and George W. Bush.

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Another LGBT Case SCOTUS-Bound? Lambda Will Petition for Judicial Review of Ruling on Standing to Challenge Mississippi Statute

 

Mississippi enacted H.B. 1523 in 2016. The measure enshrines in state statutes a special privilege to discriminate for people whose religious or moral convictions oppose same-sex marriage and sexual relations outside of opposite-sex marriages, and who reject the idea that a person could have a gender identity different from their “biological sex” as identified through external observation of genitals at birth. As part of that special privilege, such individuals are immunized from any “discriminatory” action by the state government, government employees charged with issuing marriage licenses can decline to issue them to same-sex couples (provided that there is somebody in the pertinent clerk’s office who is willing to process the license application), religious organizations enjoy broad exemptions from complying with anti-discrimination laws, health care providers may withhold services, and businesses that provide wedding-related goods and services can refuse to deal with same-sex couples.  The measure also includes a “bathroom bill” provision that protects entities that require transgender people to use bathrooms consistent with their birth certificate gender designation, and prohibits the state from taking adverse action against a state employee for expressing views consistent with those specially protected by the statute.  Although the state’s anti-discrimination laws do not prohibit sexual orientation or gender identity discrimination, at least two municipal ordinances containing such prohibitions would be preempted by the state law.  It is arguable, in light of pending litigation in other parts of the country, that some federal anti-discrimination laws (in particular, Title IX and Title VII) may be available in some of the situations covered by H.B. 1523.

Several lawsuits were quickly filed to challenge the constitutionality of this measure and keep it from going into effect on July 1, 2016. In one of the lawsuit, Barber v. Bryant, brought by Lambda Legal on behalf of a group of affected Mississippi residents with assistance of local counsel, U.S. District Judge Carlton W. Reeves granted a motion for a preliminary injunction to keep the measure from going into effect, finding that it was likely that the plaintiffs would prevail on their argument that the measure violates the 1st and 14th Amendments, specifically the Establishment and Equal Protection Clauses, and that allowing the measure to go into effect would inflict irreparable injury on the plaintiffs and those similarly situated.  See 193 F. Supp.3d 677 (S.D. Miss. 2016).  But upon the state’s appeal, a unanimous 5th Circuit panel ruled in June that plaintiffs lacked standing to bring suit before the measure actually went into effect.  The panel opined that the mere enactment of a measure alleged to violate the Establishment Clause did not tangibly harm any individual sufficiently to give them standing to challenge the enactment in federal court.  See 860 F.3d 345 (June 22, 2017).

Lambda Legal then filed a motion for rehearing en banc, which was denied by the court on September 29, with two judges dissenting in an opinion by Circuit Judge James L. Dennis.   See 2017 U.S. App. LEXIS 19008.  Dennis explained at length why the panel decision was inconsistent with prior 5th Circuit standing decisions, as well as rulings from other circuits and the Supreme Court.  Numerous decisions by federal courts have rejected objections to standing when the lawsuit was challenging a statute alleged to violate the Establishment Clause through the enactment of a state policy improperly advancing or privileging particular religious beliefs at the expense of those who do not share those beliefs.  Indeed, Judge Dennis anticipated that the plaintiffs would seek Supreme Court review, specifically stating in his opinion that the panel’s ruling created a circuit split on the issue of standing to bring an Establishment Clause challenge against a state statute.  Showing a circuit split of authority on an important question of federal law is a key factor in obtaining Supreme Court review.

Lambda Legal promptly announced that it would petition the Supreme Court to review the 5th Circuit’s ruling. Since this was an appeal by the state from the district court’s grant of a preliminary injunction, the Supreme Court would presumably not be asked to address the underlying merits of the case, but to focus solely on whether the 5th Circuit erred in dismissing the case on grounds of standing.  Perhaps, if the Court found standing, it would also address the appropriateness of the district court’s issuance of the preliminary injunction, but more likely it would remand the case to the 5th Circuit for consideration of that issue.  Meanwhile, Lambda’s request that the 5th Circuit delay filing its mandate and not order the lifting of the preliminary injunction while Lambda seeks Supreme Court review was denied unceremoniously in a non-explanatory one-sentence order signed by Circuit Judge Jerry E. Smith on October 3, which meant that H.B. 1523 would finally go into effect on October 10 unless Lambda could get an emergency stay from the Supreme Court.

Counsel for plaintiffs listed in the June 22 Court of Appeals opinion include Robert Bruce McDuff, Sibyl C. Byrd, and Jacob Wayne Howard of McDuff & Byrd (Jackson, MS), Elizabeth Littrell of Lambda Legal’s Southern Regional Office in Atlanta, Beth Levine Orlansky of the Mississippi Center for Justice (Jackson, MS), and Susan Sommer from Lambda Legal’s headquarters office in New York. Amici in support of plaintiffs include the Southern Poverty Law Center, a variety of AIDS service organizations, a large group of liberal religious organizations, GLAD, NCLR, ACLU, a coalition of pro-LGBT business groups, among others.  In addition to Mississippi government attorneys providing primary defense for the statute, there were amicus briefs from conservative religious and “pro-family” (i.e., anti-LGBT family) groups and from outspokenly anti-LGBT officials from Texas, Louisiana, Nebraska, Arkansas, Nevada, Oklahoma, South Carolina, Utah and Maine.  From the range and quantity of amicus parties listed, it should be clear to the Supreme Court that this litigation is of intense national interest.

Meanwhile, Judge Reeves, who had issued the preliminary injunction in Barber, quickly moved on a motion by Roberta Kaplan, counsel for plaintiffs in Campaign for Southern Equality v. Bryant, the original Mississippi marriage equality case, to take up the question whether HB 1523 violates the court’s ruling striking down the state’s constitutional and statutory bans on same-sex marriage by privileging state officials to refuse to issue marriage licenses to same-sex couples based on their religious of moral convictions. The Jackson Free Press reported on October 3 that Reeves scheduled a telephone conference with attorneys in the case for later in October. In agreeing to reopen the marriage case, Reeves had written that in HB 1523 “the State is permitting the differential treatment to be carried out by individual clerks.  A statewide policy has been ‘pushed down’ to an individual-level policy.  But the alleged constitutional infirmity is the same.  The question remains whether the Fourteenth Amendment requires marriage licenses to be granted (and out of-state marriage licenses to be recognized) to same-sex couples on identical terms as they are to opposite-sex couples.” The question now will be whether Reeves will grant a motion to amend the permanent injunction he issued in that case, which had been upheld by the 5th Circuit pursuant to Obergefell v. Hodges, to bar the state from failing to provide services to same-sex couples equal to those afforded different-sex couples by letting individual clerks refuse to provide the services.   At least one other U.S. District Judge is on record as to this: U.S. District Judge David Bunning, who threw Kim Davis, a county clerk who was refusing to issue marriage licenses to same-sex couples in Rowan County, Kentucky, into prison for contempt of the federal court.  As the Supreme Court most recently made clear on June 26 in Pavan v. Smith, the Obergefell ruling requires states to afford same-sex couples equal treatment with regard to all aspects of marriage.

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11th Circuit Rejects Tax Deductibility of Surrogacy Expenses

A gay male couple that wants to have a child who is genetically related to one of the men needs to retain the services of at least one and possibly two women, depending whether they are going to use ordinary surrogacy or gestational surrogacy to have the child. Should those expenses be deductible if they exceed the threshold set by the Internal Revenue Code for deductible medical expenses?  On September 25, the 11th Circuit Court of Appeals, affirming a ruling by the Internal Revenue Service, answered in the negative. Morrissey v. United States, 2017 U.S. App. LEXIS 18479, 2017 WL 4229063.

Joseph F. Morrissey, the plaintiff, is a gay man who has been in a monogamous relationship with his same-sex partner since 2000. (They married after the events described in this case took place, when same-sex marriage became legal in Florida.)  Morrissey characterizes himself as “effectively infertile” (since he is gay) because “it is physiologically impossible for two men to conceive a child through sexual relations.”  The way out of this “effective infertility” is to use a surrogate, a woman who is willing to bear a child and give up her parental rights after the child is born.

In 2010, Morrissey and his partner decided to try to have children through in vitro fertilization (IVF) using a gestational surrogate, with Morrissey as the sperm donor. Morrissey’s sperm would be collected and then used to fertilize a donated egg in a petri dish; the resulting embryo would be implanted in a different woman than the egg donor.  The gestational surrogate would then bear the child, both women having agreed to the termination of their parental rights as genetic mother and birth mother.  Between 2010 and 2014 Morrissey went through several IVF procedures involving three egg donors, three surrogates, and two fertility specialists.  He spent more than $100,000 altogether.  (The opinion does not mention whether he actually ended up having kids.)  During tax year 2011, he spent nearly $57,000 that was not covered by insurance on these IVF-surrogacy procedures.  $1,500 of his expenditures that year went toward procedures performed directly on Morrissey – blood tests and sperm collection.  The remainder of his expenditures that year went to identifying and retaining the women who would be egg donors and surrogates, for compensation of their services, reimbursement of their travel and other expenses, and providing medical care to the women.

Morrissey did not claim a deduction for these medical expenses when he filed his 2011 tax return, paying the full $22,449 that he owed in taxes without medical deductions. After paying his taxes, he filed an amended 2011 tax return, claiming a medical expense deduction of $36,538, the amount by which his claimed expenses exceeded the threshold specified in the Code, and seeking a $9,539 refund.  At the time, the threshold was 7.5 of adjusted gross income.  (Today it is 10, having been increased effective with the 2013 tax year.)  The $1500 he spent for medical services to himself could not be deducted on its own, because it would not exceed the threshold.  Only by being able to claim the other expenses associated with the IVF-surrogacy procedures would he be able to have any medical deduction.

The IRS disallowed his deduction and denied the refund, taking the position that Sec. 213, which governs the “medical care” deductions, “states that Medical Care must be for Medical Services provided to the taxpayer, his spouse, or dependent.” As far as IRS was concerned, the expenses Morrissey incurred were not, with the exception of the $1500, for medical services provided to him.

Morrissey then sued in the federal district court, claiming first that Section 213 authorizes his claimed deduction, and second that the IRS’s disallowance of his claim violated his equal protection rights under the 5th Amendment. The district court granted summary judgment for the IRS.

Writing for the panel, in one of his first opinions since being appointed to the court by Donald Trump, Circuit Judge Kevin Newsom rejected Morrissey’s attempt to bring his claim within the language of Section 213. Morrissey argued that the IVF-related expenses were “medical care” because they constituted amounts that were paid “for the purpose of affecting any . . . function of the body.”  The problem, as Newsom pointed out, was that the “body” referred to by the statute is the taxpayer’s body, and the medical care was affecting the functions of the egg donor’s and the surrogate’s bodies.  Wrote Newsom, “Mr. Morrissey contends that all of the IVF-related expenses that he incurred – including the costs attributable to the identification, retention, compensation, and care of the women who served as the egg donor and the surrogate – were made for the purpose of affecting his body’s reproductive function.  In particular, Mr. Morrissey asserts that because he and his male partner are physiologically incapable of reproducing together, IVF was his only means of fathering his own biological children.  Accordingly, Mr. Morrissey claims, it was medically necessary to involve third parties – a female egg donor and a female surrogate – in order to enable his own body to fulfill its reproductive function.”

But Judge Newsom found that the section’s “plain language” foreclosed this argument, getting into a word by word analysis with the dictionary as his authority. As he interpreted the section, it would apply only if “the expenses at issue were paid for the purpose of materially affecting or altering some function of Mr. Morrissey’s body,” and clearly they were not.  Although they were intended to solve the reproductive problem, it was not by rendering care that would affect Morrissey’s body or how his body would function.  Newsom (or more likely his clerk) had fun writing a primer on the physiology of human reproduction, in order to reach the obvious conclusion that a man’s role in the reproductive function is to ejaculate sperm, and none of the “medical care” he was trying to claim had to do with any problem concerning that.

Turning to the equal protection claim, Newsom described Morrissey’s two equal protection arguments. “First, he asserts that we should employ strict scrutiny because the IRS’s disallowance of his claimed deduction under IRC Sec. 213 infringes his fundamental right to reproduce.  Second, he argues that some form of heightened scrutiny should apply because in disallowing the deduction the IRS discriminated against him on the basis of his sexual orientation.”

While conceding that the Supreme Court has described reproduction as a fundamental right in a broad sense, the court concluded that the issue here is “whether a man has a fundamental right to procreate via an IVF process that necessarily entails the participation of an unrelated third-party egg donor and a gestational surrogate.” As to that, the court concluded, “History and tradition provide no firm footing – let alone ‘deep rooting’ – for the right that underlies Mr. Morrissey’s claim. To the contrary, IVF, egg donation, and gestational surrogacy are decidedly modern phenomena.  Indeed, not all that long ago, IVF was still (literally) the stuff of science fiction.”  There follows a citation to and quotation from Aldous Huxley’s novel, Brave New World (1932).

Newsom then described the controversial history of alternative reproductive medicine, whose morality has been questioned by some major religions and whose legality has been put into play by a variety of state laws, ranging from regulation to criminalization of surrogacy agreements and laws against their enforcement. “Were we to confer ‘fundamental’ status on Mr. Morrissey’s asserted right to IVF-and-surrogacy-assisted reproduction,” wrote Newsom, “we would ‘to a great extent, place the matter outside the arena of public debate and legislative action.’ Particularly in view of the ethical issues implicated by IVF, egg donation, and gestational surrogacy,” he continued, “as well as the ongoing political dialogue about those issues – and mindful that ‘guideposts for responsible decision-making’ in the fundamental-rights area ‘are scarce and open-ended’ – we decline to take that step.”

The court rejected Morrissey’s invitation to opine as to whether sexual orientation is a “suspect classification” for equal protection purposes, because it found that the challenged statute – and its interpretation here – was neutral regarding sexual orientation. Newsom asserted that the statute “deals with heterosexual and homosexual taxpayers on equal terms.”  The court found that Morrissey could not show that the IRS treated him differently from a heterosexual taxpayer who sought to claim a medical deduction for the expenses of IVF-surrogacy procedures.  “The agency’s disallowance of Mr. Morrissey’s claimed deduction is consistent with longstanding IRS guidance and analogous Tax Court precedent,” he wrote, as “IRS has consistently refused deductions sought by heterosexual taxpayers for IVF-related expenses similar to Mr. Morrissey’s.  An IRS guidance published in 2002 advised that ‘medical expenses paid for a surrogate mother and her unborn child would not qualify for deduction under Sec. 213(a),’” and this was upheld in several Tax Court cases.  He pointed out that such deductions had even been disallowed where the surrogate was impregnated through sexual intercourse with the taxpayer!

The court refused to accept Morrissey’s analogy to the IRS’s allowance of deductions for fertility treatments, saying, “Even if Mr. Morrissey could show that he had been treated differently from similarly situated heterosexual taxpayers, he hasn’t shown that any difference was motivated by an intent to discriminate against him on the basis of his sexual orientation.” In essence, Morrissey’s equal protection claim was more of a disparate impact claim, not a disparate treatment claim, and the constitutional requirement of equal protection has been interpreted by the Supreme Court to apply only to intentional discrimination, not to the discriminatory effects of a tax regime that makes it more expensive for gay couples to have biological offspring than for those straight couples who do it the old-fashioned way.  Although Morrissey was able to come up with an internal IRS document in which an agent made a remark that might be construed as showing discriminatory intent, the court insisted that the official explanation provided by IRS for denying his claim carried no implication of any discriminatory purpose.  “Because there is no evidence that the IRS’s actual decision-makers engaged in any intentional discrimination,” wrote Newsom, “Mr. Morrissey’s equal protection claim fails.”

Morrissey is represented by Richard Donald Euliss of Carlton Fields Jorden Burt PA (Washington, DC) and David Paul Burke, Scott D. Feather, and Gary L. Sasso, of the same firm’s Tampa office.

 

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