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Nevada Supreme Court Affirms Parental Rights for Former Gay Partner of Adoptive Dad

Posted on: June 28th, 2017 by Art Leonard No Comments

The Nevada Supreme Court has unanimously affirmed a District Court decision granting a gay man paternity over a child adopted by his former partner.  Four members of the court based their June 22 ruling on the concept of “equitable adoption,” while the other three based their ruling on an interpretation of the state’s “presumption of paternity” under Nevada’s parentage statute, NRS 126.041. The case is Nguyen v. Boynes, 2017 Nev. Adv. Rep. 32, 2017 Nev. LEXIS 45, 2017 WL 2733779.  Justice Ron D. Parraguirre wrote the opinion for the majority of the court, and Justice Lidia S. Stiglich wrote for the concurring justices.

Ken Nguyen and Rob Boynes began dating in November 2009.  “At some time during the relationship,” wrote Justice Parraguirre, “a decision was made to adopt a child.”  They approached Catholic Charities of Southern Nevada, but that organization would not arrange joint adoptions for same-sex couples, so the men agreed that Ken would adopt the child and then Rob would later initiate a second-parent adoption.  They went through Catholic Charities’ procedure beginning in July 2012, and in February 2013, Catholic Charities notified Ken that it was placing a newborn child with him for adoption.  Both men “were present to receive the newborn child,” and both participated as parents after the placement.

When Ken’s co-workers arranged a baby shower, it was held at Rob’s house. The child was baptized at the Desert Spring United Methodist Church, with both men standing in as fathers and listed on the baptism certificate.  However, shortly after that they ended their relationship. “Rob asked Ken to add his name to the child’s birth certificate, and Ken refused,” wrote Justice Parraguirre.  The formal adoption by Ken was finalized in October 2013.  “Both parties sat at the plaintiff’s table during the adoption hearing, and Ken reiterated once again that he would not place Rob’s name on the child’s birth certificate, nor would he allow a second-parent adoption.”

Despite Ken’s position on the legal issues, the men continued to share parental duties, as they had done from the outset. Indeed, “Since the child’s first day of placement with Ken, he has primarily been under Rob’s care.”

“The child stayed overnight at Rob’s house during the first night of placement and continued to do so for more than a month,” after which he spent weekends at Ken’s house. After two months of placement, Ken decided to hire a neighbor as a full-time babysitter, but after several weeks they reverted back to their previous arrangement of the child staying with Rob during the week until Ken enrolled the child in daycare in May 2014.  “Rob primarily took the child for doctor visits and provided most of the baby supplies,” wrote Parraguirre.  “Additionally, in November 2013, Rob took the child to North Carolina to visit Rob’s sister during Thanksgiving.”

Rob filed a petition for paternity and custody in the Clark County Family Court Division in May 2014. After a full hearing, Judge Bill Henderson decided that Rob was entitled to a “presumption of paternity” under the Nevada parentage statute, and held that the men were to have joint legal and physical custody.  Judge Henderson also referred to the “equitable adoption” theory in reaching his decision.  Ken appealed the order.

The Supreme Court explained that equitable adoption is “an equitable remedy to enforce an adoption agreement under circumstances where there is a promise to adopt, and in reasonable, foreseeable reliance on that promise a child is placed in a position where harm will result if repudiation is permitted.”

“This case concerns whether there was an agreement by the parties to adopt the child together that was formed at the beginning of the adoption process, and whether accompanying that agreement was an intent and promise by Ken to allow Rob to adopt the child second due to Catholic Charities’ policy disallowing joint adoptions for same-sex couples,” wrote Justice Parraguiree. “The parties do not dispute their non-biological relations with the child,” he continued, so “Nevada’s Uniform Parentage Act is not implicated.  We thus conclude that the equitable adoption doctrine is applicable to enforce an adoption agreement under the unique factual circumstances of this case.”

The Supreme Court agreed with District Judge Henderson that Rob had satisfied the four element test set forth in Nevada’s case law: Intent to adopt, promise to adopt, justifiable reliance, and harm resulting from repudiation. The Family Court’s decision would be reviewed under the “abuse of discretion” standard, so Judge Henderson’s decision to recognize Rob as a father would be upheld if substantial evidence supports it.

The court found evidence supporting every aspect of the four-element test: that the parties intended that both would ultimately be adoptive fathers of the child, that Ken had promised Rob to facilitate his adoption second, and that Rob was an integral factor in the adoption process and was “intimately involved.”  Indeed, there was testimony at the Family Court hearing by officials from Catholic Charities that both men participated in the process, “including the background check, post-placement visits, orientation, and adoption classes.”

Furthermore, from the commencement of the placement of the child with Ken, Ken treated Rob as a second parent and Rob took on parental responsibilities. Furthermore, Rob was regarded as a father to the child by others, who testified at the hearing.  In a footnote, Parraguirre mentioned that “the district court found that the deterioration of Ken and Rob’s relationship during the summer of 2013 seemed to be the driving factor in Ken’s decision to not follow through with the second adoption for Rob.”

The court also found plenty of evidentiary support for Rob’s reliance on Ken’s promise. “Rob dedicated a substantial amount of his time to the adoption process.  Moreover, Rob primarily cared for the child post-placement.”  Rob provided the baby supplies and “made substantial changes to his house and lifestyle to accommodate the child’s needs, which included changing one of the rooms in his house to a nursery.”  The court found that Ken’s repudiation of the promise produced harm: “the deprivation of Rob’s emotional and financial support to the child.”  Since letting Ken repudiate his promise would be to the child’s detriment, “equity cannot allow such a result,” insisted Justice Parraguirre.

The court upheld the grant of joint legal and physical custody, finding that the Judge Henderson had not abused his discretion in light of the trial record, and rejecting Ken’s allegations of disqualifying misconduct by Rob.

The court also rejected Ken’s argument that the parentage and custody award violated his constitutional rights as an adoptive parent. He argued that the district court’s ruling was unprecedented, and had treated the men differently than it would have treated an unmarried heterosexual couple.  “Here,” wrote the court, “Ken does not challenge the constitutionality of a particular statute; rather, he alleges generally that the district court treated the parties differently than it would have a heterosexual couple.  However, ‘child custody determinations are by necessity made on a case-by-case basis,’ and, here, ‘there is nothing to indicate that the ultimate decision of the district court turned on [the couple’s sexual orientation].”

Justice Stiglich, writing for herself and two others, contended that “the Nevada Parentage Act provides a more appropriate analysis in this case than the doctrine of equitable adoption.” She pointed out that in a prior case, St. Mary v. Damon, 309 P.3d 1027 (2013), the court had “clearly concluded that Nevada law does not preclude a child from having two mothers under the Nevada Parentage Act,” stating in that opinion that “the Legislature has recognized that the children of same-sex domestic partners bear no lesser rights to the enjoyment and support of two parents than children born to married heterosexual parents.”

Consequently, she wrote, “Pursuant to St. Mary, if a presumption of parentage can apply to a woman in a same-sex relationship, there appears no reason why the provision of [the parentage statute] cannot apply to a man in a same-sex relationship. Because Rob submitted ample evidence to support the presumption of parentage under [the statute], I concur with the majority’s holding affirming the decision of the district court, but on different grounds.”

Rob is represented by the Pecos Law Group and Bruce I. Shapiro and Jack W. Fleeman, of Henderson, Nevada. Ken is represented by McFarling Law Group and name-partner Emily M. McFarling of Las Vegas.

Supreme Court Rules that Same-Sex Spouses are Entitled to Be Listed on Birth Certificates

Posted on: June 26th, 2017 by Art Leonard No Comments

When a child is born to a woman married to another woman, both women should be listed as parents on the child’s birth certificate. So ruled the Supreme Court, voting 6-3 and reversing a decision by the Arkansas Supreme Court on the last day of its October 2016 Term, which was coincidentally the second anniversary of the Court’s historic marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which provides the basis for this new ruling in Pavan v. Smith, No. 16-992 (June 26, 2017), reversing 505 S.W.3d 169 (2016).

The petitioners in this case were two married same-sex couples, Leigh and Jana Jacobs and Terrah and Marisa Pavan. Both couples resided in Arkansas when their children were born in 2015, having previously married out of state.  Both couples filed paperwork with the state seeking birth certificates listing both mothers as parents.  The state turned them down, issuing birth certificates listing just the birth mothers and leaving the space for fathers blank.

The state’s Health Department argued that this was compelled by a state statute that provides that when a married woman gives birth, her husband will be listed on the birth certificate. (This is frequently referred to as the parental presumption.) This is so even if the woman conceives through donor insemination and her husband is not the biological father of the child, or even if some other man got the wife pregnant.  Incredibly, the Health Department sought to justify its refusal to name both parents on birth certificates by saying that the purpose of the birth certificate is to record biological lineage, which is pretty strange if husbands get listed regardless of their biological relation to the child.  Furthermore, Arkansas, like other states, issues amended birth certificates if children are adopted, listing their new legal parents, again regardless of the fact that one or both of the adoptive parents are not biologically related to the child.

The women sued the Commissioner of the health department and the trial court agreed with them that this result was unconstitutional under Obergefell, because the statute “categorically prohibits every same-sex married couple from enjoying the same spousal benefits which are available to every opposite-sex married couple.” In Obergefell, the Supreme Court ruled that same-sex couples have the same right to marry as opposite-sex couples, which means they are entitled to be treated the same by the state for all reasons of law.

The Arkansas Supreme Court was divided in this case. A majority sided with the Health Department, buying the incredible argument that birth certificates are supposed to be a record of biological lineage.  Wrote the Arkansas court, “The statute centers on the relationship of the biological mother and the biological father to the child, not on the marital relationship of husband and wife,” and so it was consistent with Obergefell.  Not so, argued the dissenters, writing that under Obergefell “a same-sex married couple is entitled to a birth certificate on the same basis as an opposite-sex married couple.”

The majority U.S. Supreme Court agreed with the dissenters, finding this case so clear that it simultaneously granted the petition for review and issued a decision, without waiting for briefing on the merits or oral argument. The decision was issued “Per Curiam” (Latin for “by the Court”) without identifying an individual justice as its author.

The Court concluded that the Arkansas Supreme Court’s decision “denied married same-sex couples access to the ‘constellation of benefits that the State has linked to marriage,’” in violation of the Obergefell ruling. Under Arkansas’s statute, “same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school.  Obergefell proscribes such disparate treatment.”

The Court pointed out that in the Obergefell decision it had included “birth and death certificates” in its list of “rights, benefits, and responsibilities” of marriage to which same-sex couples are entitled on the same basis as different-sex couples.   “That was no accident,” said the Court, as “several of the plaintiffs in Obergefell challenged a State’s refusal to recognize their same-sex spouses on their children’s birth certificates.  In considering those challenges, we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples.”  The Court said this applied with “equal force” to the Arkansas statute.

Rejecting Arkansas’s argument that birth certificates were all about biological relationships, the Court insisted, to the contrary, that “Arkansas law makes birth certificates about more than just genetics,” citing as a prime example the provision involving donor insemination. “Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships: The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents.  Having made that choice,” the Court continued, “Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.”  The case was sent back to the Arkansas courts for “further proceedings not inconsistent with this opinion.”

The Per Curiam Court included all of the justices who had voted in the majority in Obergefell plus Chief Justice John Roberts, who was the principal dissenter in the marriage case. Roberts’ vote in this case is notable, given the vehemence of his dissent in Obergefell, but apparently, accepting that Obergefell is now a precedent and that there are not five votes on the Court to overturn it, Roberts was willing to agree that the Arkansas Supreme Court’s ruling was inconsistent with it.

Not so the three dissenters, Justices Samuel Alito, Clarence Thomas, and the recently installed Neil Gorsuch, who wrote a dissent on their behalf. When Gorsuch was nominated, it was predicted that he would be as bad for LGBT rights as his predecessor, Justice Antonin Scalia, if not worse. His dissent here vindicated that view.

First, he scolded the Court for deciding the case summarily, arguing that the law in question is not “settled and stable.” He did not deem it clear that Obergefell would invalidate state laws restricting who could be listed on a birth certificate, when justified by a policy of recording biological ties.

He took a narrow view of Obergefell, as some lower courts have done in birth certificate litigation around the country, arguing that “nothing in Obergefell spoke (let alone clearly) to the question whether [the Arkansas statute], or a state supreme court decision upholding it, must go. The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate.”  This is, of course, incorrect, as the Per Curiam opinion demonstrated.  The state’s rules, requiring that the husband of a woman who conceives through donor insemination be listed as the child’s father, clearly do not “ensure” that the biological parents of a child are listed on the certificate.  Indeed, as the Court noted in passing in its Per Curiam opinion, the “rules” in Arkansas even provide that if the birth mother, her husband, and the actual biological father of the child all agree in sworn statements, the actual father can be listed instead of the husband, but otherwise the husband would be listed.  Clearly, listing people on birth certificates in Arkansas under current statutes is not all about biological relationships.

Gorsuch also noted that since this litigation has been under way Arkansas officials have come around to agree that the birth mother’s spouse should be listed on the birth certificate. Since the state has now agreed (without amending its statute) that it should list same-sex spouses on birth certificates, Gorsuch professes to see no reason for this ruling.  “Indeed,” he wrote, “it is not even clear what the Court expects to happen on remand that hasn’t happened already.  The Court does not offer any remedial suggestion, and none leaps to mind.  Perhaps the state supreme court could memorialize the state’s concession.”  Indeed, exactly so, the proper action on remand is a judicial declaration that same-sex spouses are entitled to be listed on birth certificates, and a permanent injunction requiring that result. This is not superfluous, since the state legislature has not amended the statute.

The Court’s decision will affect pending litigation elsewhere. In Arizona, the state’s intermediate court of appeals ruled on June 22 in Turner v. Steiner, 2017 WL 2687680, that a lesbian co-parent was not entitled to be listed on a birth certificate, conflicting with a ruling by another panel of the court of appeals, McLaughlin v. Jones, 382 P.3d 118 (2016), which was recently granted review by the Arizona Supreme Court.  The Turner decision cited the Arkansas Supreme Court’s ruling in this case, as well as a Wisconsin Supreme Court ruling from 2015, In re P.L.L.-R., 876 N.W.2d 147.   Plaintiffs in the Wisconsin case should be able to file a new suit based on Pavan, if necessary, but perhaps Pavan v. Smith will encourage state officials to drop their obstructions and accord equal treatment to same-sex married couples.

The plaintiffs in this case were represented by the National Center for Lesbian Rights, with local counsel Cheryl Maples of Heber Springs, Arkansas. Attorneys from the Washington and Boston offices of Ropes & Gray, LLP, worked on the case in collaboration with NCLR, and R&G’s Douglas Hallward-Driemeier, who shared the oral argument in the marriage equality cases two years ago, was Counsel of Record who might have argued the case had the Court scheduled a hearing.

Supreme Court Will Consider Religious and Free Speech Exemptions to Anti-Discrimination Law in Colorado Wedding Cake Case

Posted on: June 26th, 2017 by Art Leonard No Comments

On June 26 the United States Supreme Court granted a petition filed by Alliance Defending Freedom (ADF), the anti-gay “religious” law firm, on behalf of Jack Phillips and his business, Masterpiece Cakeshop, to determine whether the Colorado Court of Appeals correctly denied Phillips’ claim that he is privileged under the 1st Amendment to refuse an order to bake a wedding cake for a same-sex couple.  Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission, No. 16-111 (cert. granted June 26, 2017).

The petition was filed last July 22, and had been listed for discussion during the Court’s conferences more than a dozen times. The addition of Donald Trump’s nominee, Neil Gorsuch, to fill a vacancy on the Court was likely the catalyst for a decision to grant review, although it the ultimate disposition of the case could heavily depend on the views of Justice Anthony Kennedy, the “swing justice” on the Court in cases involving LGBT issues.  However, in an interesting twist, one of the main precedents that stands in the way of a victory for Phillips and Masterpiece Cakeshop is an opinion written in 1990 by Justice Antonin Scalia, whose death led to Gorsuch’s appointment.

The petition asks the Court, in effect, to reverse or narrow its long-standing precedent, Employment Division v. Smith, in which Justice Antonin Scalia wrote that individuals do not have a constitutional right based on their religious beliefs to refuse to comply with “neutral” state laws of general application. Neutral state laws are those that do not directly concern religious beliefs or practices, but whose application may incidentally affect them.  In response to this decision, both Congress and many state governments have passed statutes allowing persons to claim religious exemptions from complying with statutes under certain circumstances.

The question which the Court will consider, as phrased by ADF in its petition, is: “Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment?”

The Court has addressed the free speech aspects of this issue in the past.  In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995), the Court ruled that a state’s public accommodation law would have to give way to the 1st Amendment expressive association rights of the organizers of Boston’s St. Patrick’s Day Parade, who refused to allow an LGBT group to march under its own banner in the parade.  The Court ruled unanimously, in an opinion by Justice David Souter, that a parade is a quintessential expressive activity, and the organizers of the parade have a right to exclude groups whose presence would convey a message that the parade organizers do not wish to convey.

By a bare 5-4 majority, the Court extended that ruling in Boy Scouts of America v. Dale (2000), in which Chief Justice William Rehnquist wrote for the Court, holding that the Boy Scouts of America, like the Boston parade organizers, is an expressive association and could refuse to allow an openly gay man to serve as an assistant scoutmaster because this would communicate to its members and the public a view as to homosexuality that the BSA did not want to communicate.  The ruling sparked two dissenting opinions, sharply contesting the majority’s weighing of rights in allowing the Boy Scouts to discriminate and challenging the view that BSA could be characterized as an “expressive association.”

Interestingly, the winning parties in both of these cases have over time come to see the wisdom of allowing at least some LGBT people to participate in their activities.  The Boston parade organizers have allowed some LGBT groups to participate in their parade in recent years, and BSA voted to allow its local troops to permit participation by LGBT people as members and adult leaders, although troops sponsored by religious organizations have continued to exclude LGBT people in some places.

The Court has yet to return to the religious objection aspect of this case.  A few years ago it refused to review a decision by the New Mexico Supreme Court holding that a wedding photographer did not have a 1st Amendment right to refuse to provide her services to a lesbian couple seeking photographic documentation of their commitment ceremony.  Since then, courts in several other states have rejected religious exemption claims by various businesses that provide wedding-related services, including a recent New York ruling refusing a religious exemption to a farm that had hosted and catered weddings.  The more recent Hobby Lobby case, in which the Supreme Court held that a closely-held corporation could refuse on religious grounds to cover certain contraceptive methods under its health care plan, was litigated in terms of a statutory exemption provided by the federal Religious Freedom Restoration Act, and thus was not grounded on a constitutional claim.

A recent appellate ruling by a Kentucky court, however, upheld the right of a company that makes custom t-shirts to refuse an order from a gay organization for shirts to publicize the organization’s Gay Pride festival.  The 2-1 ruling was premised on the court’s conclusion that the denial of services was not based on the sexual orientation of anybody, but the concurring judge also cited the state’s Religious Freedom Restoration Act, while the dissenter found a clear violation of the a municipal anti-discrimination law and no right to a religious exemption.

In the case granted review by the Supreme Court, Charlie Craig and David Mullins were planning to go out-of-state to marry, because in 2012 Colorado did not yet allow same-sex marriages.  However, they planned to follow up with a celebration near their home in order to more easily involve their family and friends, and went to Masterpiece Cakeshop to order a cake for the occasion.  The owner, Jack Phillips, declined their order, citing his religious objection to same-sex marriage.  When Craig and Mullins publicized this refusal, they were offered a free wedding cake by another bakery which they accepted, but they also decided to file a charge of sexual orientation discrimination with the Colorado Civil Rights Division.  The Division ruled in their favor, approving an administrative law judge’s decision that rejected Phillips’s 1st Amendment defenses of free exercise of religion and freedom of speech and found that Phillips had violated the state’s statutory ban on sexual orientation discrimination by businesses.

ADF appealed the administrative ruling to the Colorado Court of Appeals, which rejected both of Phillips’ constitutional arguments.  The court held that baking and decorating a wedding cake is not speech or artistic expression, as Phillips had argued, and that the Commission’s order “merely requires that [Phillips] not discriminate against potential customers in violation of [the Colorado Anti-Discrimination Act] and that such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.”  The court deemed the Act to be a “neutral law of generally applicability,” and thus within the scope of the Supreme Court’s Employment Division v. Smith precedent.  Colorado does not have a Religious Freedom Restoration Act that could arguably create a statutory exemption to the anti-discrimination statute.

Because the Supreme Court granted review on both the free speech and religious exercise claims, there might result a split decision by the Court.  If it wants to adhere to a broad view of Employment Division v. Smith, it can easily follow the route taken by various state courts that have refused to allow businesses to claim a constitutional religious exemption from complying with anti-discrimination laws.  Or, it could use this case to back away from the Employment Division holding or narrow it in some way.

The Court is unlikely to rule for Phillips on the free speech argument if it sticks with its precedents, since the recognized constitutional exception is for organizations or activities that have a primary or significant expressive purpose. Both Hurley and Dale involved non-profit organizations, not businesses, that were engaged in activities that the Court found (by only a narrow margin in the case of the Boy Scouts) to have strong expressive association claims.  It is unlikely that a business whose primary activity is selling cakes could make a similar claim.  But the Supreme Court can be full of surprises, and there have been significant changes in its membership since these cases were decided.  The Court might bow to the argument by ADF that people of strong religious convictions who wish to incorporate those convictions into their businesses have a right not to be compelled by the government to undertake activities that would express a view contrary to their religious beliefs.  This would potentially tear a big hole in the protection against discrimination provided by the public accommodations laws most of the states, and not just those that ban discrimination because of sexual orientation or gender identity.

The Colorado Court of Appeals’ decision will be defended before the Supreme Court by the state’s attorneys. Lambda Legal and One Colorado, with cooperating attorneys John McHugh and Anthony Giacomini of Denver-based Reilly Pozner LLP, filed an amicus brief in response to the petition.  Given the wide-ranging interest in the issues underlying this case, it is likely that the Court will receive a mountain of amicus briefs.  Oral argument will be held sometime next winter.

 

5th Circuit Tosses Challenge to Mississippi HB 1523 on Standing Grounds

Posted on: June 24th, 2017 by Art Leonard No Comments

A three-judge panel of the Houston-based U.S. Court of Appeals for the 5th Circuit dissolved a preliminary injunction and dismissed two lawsuits challenging the constitutionality of H.B. 1523, a Mississippi law enacted last year intended to assure that people who hold anti-gay or anti-transgender views cannot be subject to any adverse action from their state or local governments.  Barber v. Bryant, 2017 Westlaw 2702075, 2017 U.S. App. LEXIS 11116 (June 22, 2017).

U.S. District Judge Carlton Reeves, finding that the plaintiffs were likely to prevail on their claim that the law violated their equal protection rights as well as the constitutional prohibition on establishment of religion, issued a preliminary injunction last June 30, so the law, which was to become effective last July 1, has not gone into effect. Ruling on June 22, the panel found that none of the plaintiffs had standing to bring this challenge to the law because, in the court’s opinion, none had suffered an individualized injury that would give them the right to challenge the law.

The court was careful to state that because it did not have jurisdiction over the case, it was not expressing an opinion about whether the law was constitutional.

Plaintiffs’ attorneys from the two cases announced that they would seek “en banc” review by the full 5th Circuit bench and, failing that, would petition the Supreme Court.  The 5th Circuit is a notably conservative bench, however, with only four of the fourteen active judges having been appointed by Democratic presidents.  The three-judge panel that issued this decision consisted entirely of Republican appointees.

Section 2 of the law identifies three “religious beliefs or moral convictions” and states that people who act in accord with those beliefs or convictions are protected from “discriminatory” action by the state, such as adverse tax rulings, benefit eligibility, employment decisions, imposition of fines or denial of occupational licenses.  The “religious beliefs or moral convictions” are as follows:  “(a) Marriage is or should be recognized as the union of one man and one woman; (b) sexual relations are properly reserved to such a marriage; and (c) male (man) or female (woman) refers to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

The statute provides further that people who claim to have suffered some adverse action because they act on these beliefs have a right to sue state officials, and to use this law as a defense if they are sued by individuals.

Making its effect more concrete, the statute specifically protects religious organizations that want to discriminate against LGBTQ people in employment, housing, child placement, and marriages, and protects parents who decide to “raise their foster or adoptive children in accordance” with one of the three listed beliefs. Businesses that provide wedding services are protected against liability for denying such services to LGBTQ people, as are medical and mental health care providers, except for emergency medical situations.  For example, a health care provider cannot interfere with visitation with a patient by their designated representative (who may be a same-sex partner or spouse).  State agencies that license professionals may not refuse to license somebody because they hold or articulate one of the listed beliefs.

The statute also specifically protects “any entity that establishes sex-specific standards for facilities such as locker rooms or restrooms,” and protects state employees who want to voice their beliefs as listed in the statute.  It also specifically allows county clerks and judges to refuse to deal with same-sex couples seeking to marry, so long as arrangements are made to allow such marriages to take place without delay.

To sum up, the statute clearly sought to exempt religious organizations and individuals from having to treat LGBTQ people as equal with everybody else, providing “special rights” to discriminate against LGBTQ people and same-sex couples.  Ironically, because Mississippi law does nothing to protect the civil rights of LGBTQ people, many of the applications of this statute are more symbolic than real, at least as far as state law goes.  A Mississippi landlord incurs no state law penalty for refusing to rent a dwelling place to a same-sex couple, for example, and businesses in Mississippi are free to deny goods or services to people who are gay or transgender without incurring any state law penalty.  Few local governments in Mississippi have adopted laws that would be affected, although some educational institutions would clearly be affected, especially by the facilities access provision.

The problem for the plaintiffs, in the eyes of the court of appeals, was that the judges could not see that any of the plaintiffs have the kind of particularized injury to give them standing to sue the state in federal court when this law had not even begun to operate.  The plaintiffs had relied heavily on the argument that the law imposed a stigma, signaling second-class citizenship, and sought to enshrine by statute particular religious views, but the court rejected these arguments as insufficient.

The plaintiffs pointed to cases in which courts had ruled that plaintiffs offended by government-sponsored religious displays had been allowed to challenge them under the 1st Amendment in federal court, but Judge Jerry E. Smith, writing for the panel, rejected this analogy.  The court also rejected taxpayer standing, finding that H.B. 1523 did not authorize expenditures in support of religion.  The court found that by protecting both “religious beliefs and moral convictions,” the legislature had avoided privileging religion, since persons whose anti-gay beliefs were not religiously motivated would be protected from adverse government treatment under this act.  An atheist who believes same-sex marriage is wrong or that sex is immutable would be protected, even if these beliefs had no religious basis.

One plaintiff who based his standing on his intention to marry in the future was rejected by the court, which pointed out that he did not specify when or where he intended to marry.  “He does not allege that he was seeking wedding-related services from a business that would deny him or that he was seeking a marriage license or solemnization from a clerk or judge who would refuse to be involved in such a ceremony, or even that he intended to get married in Mississippi,” wrote Judge Smith.

The court made clear that if anybody actually suffers a concrete injury after the law goes into effect, they could file a new lawsuit and raise their challenge.

 

European Human Rights Court Rules Against Russia on “Homosexual Propaganda” Laws

Posted on: June 20th, 2017 by Art Leonard No Comments

 

A seven-member chamber of the European Court of Human Rights in Strasbourg issued a judgment on June 20 in the case of Bayev & Others v. Russia, Applications nos. 67667/09 and 2 others, holding that local and national laws in Russia making it an administrative offense for somebody to “promote homosexuality among minors” or to promote “non-traditional sexual relations” violates the free speech and equality provisions of the European Convention on Human Rights.  The Parliament of the Russian Federation ratified the Convention in 1998, during the period of liberalization in that country, but in 2015 the Parliament approved a draft law endorsed by President Vladimir Putin authorizing Russia to ignore rulings of the European Court of Human Rights when they were inconsistent with the Russian Constitution.  Despite their proclaimed purpose of protecting minors, the laws have been aggressively enforced to prevent public demonstrations in support of LGBT rights.

The Bayev case consolidated applications to the court by three Russian gay rights advocates, Nikolay Bayev, Aleksey Kiselev, and Nikolay Alekseyev, each of whom had been prosecuted under either the local laws or the federal law, all of which made it an administrative offense, punishable by a fine, to “promote homosexuality” or “non-traditional relationships” to minors.  These applicants had demonstrated with banners asserting the normality of homosexuality, in two cases in places where children were likely to see them (schools, libraries) and in one case in front of a government building.  Each of them was fined, and their appeals were rejected by the constitutional courts in Russia.

In defending the laws, the Russian government insisted that they were within its authority, and consistent with the European Convention, to protect the morals of youth and the demographic and health concerns of the nation by prohibiting such “promotion.”  The government pointed to the severe demographic challenge faced by Russia, which has suffered a declining population, as well as the risks of HIV transmission through homosexual activity and the need to channel Russian youth into traditional heterosexual family relationships to produce more children.

The applicants pointed to the protection for freedom of expression and equality under Articles 10 and 14 of the Convention, contending that the government had not provided adequate justification for censoring the applicants’ messages.

The seven-member chamber, whose judgment will be appealed by Russia to a larger “Grand Chamber” of the court, included judges from Sweden, Spain, Switzerland, Slovakia, Cyprus and the Netherlands, as well as a Russian judge, who was the lone dissenter from the judgment.

The court thoroughly rejected the Russian government’s argument in support of the laws.  The government admitted that the laws restricted freedom of expression, but claimed that the restriction fell within the “margin of appreciation” for justified restrictions.  While noting the government’s argument that the “margin of appreciation” is wide “where the subject matter may be linked to sensitive moral or ethical issues” as to which there is no European consensus, in this case, the court said, “there is a clear European consensus about the recognition of individuals’ right to openly identify themselves as gay, lesbian or any other sexual minority, and to promote their own rights and freedoms,” citing to its earlier judgment in a case brought by Mr. Alexeyev in opposition to the earliest local enactment of a similar law.

Seeking to justify its position, the government alleged the “incompatibility between maintaining family values as the foundation of society and acknowledging the social acceptance of homosexuality,” but the court was not convinced.  “The Court sees no reason to consider these elements as incompatible, especially in view of the growing general tendency to include relationships between same-sex couples within the concept of ‘family life’ and the acknowledgement of the need for their legal recognition and protection.”  After noting the strong trend in Europe towards recognition for same-sex relationships, and suggesting that the court’s jurisprudence had to move with the times, the court also noted the strong desire of same-sex couples to form families and raise children. Furthermore, said the court, “The Government failed to demonstrate how freedom of expression on LGBT issues would devalue or otherwise adversely affect actual and existing ‘traditional families’ or would compromise their future.”

“The Court has consistently declined to endorse policies and decisions which embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority,” said the court. “It held that these negative attitudes, references to traditions or general assumptions in a particular country cannot of themselves be considered by the Court to amount to sufficient justification for the differential treatment, any more than similar negative attitudes towards those of a different race, origin or color.”  The court found that the challenged Russian laws are “an example of such predisposed bias,” and rejected the idea that because the majority of Russians strongly oppose homosexuality, that would justify the government in abridging the freedom of expression of gay people seeking to protect their rights.  Thus, the Court rejected the government’s argument that “regulating public debate on LGBT issues may be justified on the grounds of the protection of morals.”

The court also rejected the government’s argument that the laws could be justified as public health measures or as a means to address the country’s demographic problems. In fact, the court pointed out, ignorance about homosexuality would be counterproductive as a public health measure, and there was no evidence that suppressing all discussion of homosexuality that could come to the attention of minors would contribute to growth of the Russian population.  “Population growth depends on a multitude of conditions, economic prosperity, social-security rights and accessibility of childcare being the most obvious factors among those susceptible to State influence,” wrote the court.  “Suppression of information about same-sex relationships is not a method by which a negative demographic trend may be reversed. Moreover, a hypothetical general benefit would in any event have to be weighed against the concrete rights of LGBT individuals who are adversely affected by the impugned restrictions. It is sufficient to observe that social approval of heterosexual couples is not conditional on their intention or ability to have children.”

The court also found that the laws could not be justified as a measure to “protect the rights of others,” such as minors themselves or their parents. The laws did not prevent parents from instructing their children or promoting traditional heterosexual relationships to their children.  Furthermore, the laws as interpreted by the Russian courts and applied to the applicants in these cases were clearly both vague and overly broad, extending to activities that were hardly likely to undermine parental authority or to harm children.

The court found that the biased views underlying the laws also supported the applicants’ arguments that the laws violate Article 14 of the Covenant, which guarantees equality.

As a remedy, the court ordered that the Russian government refund to the applicants the fines they had been ordered to pay, and also awarded them monetary damages to compensate for expenses incurred in connection with this litigation. Also, wrote the court, “it considers that the applicants suffered stress and anxiety as a result of the application of the discriminatory legal provisions against them. It also notes that the impugned legal provisions have not been repealed and remain in force, and thus the effects of the harm already sustained by the applicants have not been mitigated,” so it awarded additional damages as compensation. The amounts awarded were relatively trivial.

The Russian judge on the panel, Dmitry Dedov, submitted a dissenting opinion that channeled the arguments of the Russian government, particularly as they were articulated by the constitutional court in rejecting the appeals in these cases.

The government contended that the challenged measures are non-discriminatory, do not impose criminal sanctions for homosexual conduct and do not single out homosexuals for suppression of their expression, but rather focus on socially harmful messages that everybody, whether gay or straight, are prohibited from sending to minors. Dedov contended that the court erred by focusing on a “conflict of rights” rather than on the government’s “legitimate aim” in promoting the morals and health of minors and Russian society.  He contended that what the local governments and the Federal government had done was well within their appropriate role to promote social welfare, and particularly the well-being of vulnerable minors, and that the court was mistaken in treating this as a case about discrimination.

“Needless to say,” he wrote, “sexual identification, as well as sexual orientation, is a very intimate process, albeit influenced by social life and social relations. The international instruments, including the CRC, recognize that children should primarily consult their parents or close members of the family, rather than obtaining information about sex from the applicants’ posters in the street.”  He argued that it was for the government to determine how to educate minors about their social roles, contending that “it is commonly recognized that sex education is a very sensitive area where the dissemination of information should be carried out very carefully.”

The Russian news agency, Tass, quickly reported that the Russian Justice Ministry would appeal the decision and contest the remedy, which totaled about 49,000 euros. The statement from the Ministry reiterated Judge Dedov’s main point, arguing that “the provisions of a number of regional laws banning LGBT propaganda among minors do not contradict international practices and are aimed exclusively at protection of children’s morality and health.”

The full text of the opinion in English is available on the court’s website, as well as a press release summarizing the decision.

NY Family Court Judge Takes Co-Parent Rights a Step Further in Filiation Case

Posted on: June 16th, 2017 by Art Leonard No Comments

Rockland County Family Court Judge Rachel E. Tanguay, ruling on a question of first impression under New York Law, decided that when a lesbian couple had children together and raised them together as a family for several years before splitting up, the co-parent was entitled to an Order of Filiation recognizing her parental status for all purposes. Judge Tanguay’s ruling in A.F. v. K.H., 2017 N.Y. Slip Op. 27196, 2017 WL 2541877 (Fam. Ct., Rockland Co., May 25, 2017), takes New York law one step further than the Court of Appeals’ landmark 2016 decision in Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, which had overruled a 25-year-old precedent to hold that a co-parent can seek custody and visitation in such a situation.

A.F. and K.H. became registered domestic partners on August 25, 2005, according to the findings of a Family Court Attorney Referee at an earlier stage of this case, and they decided to have children, with K.H. becoming pregnant through donor insemination with sperm from an anonymous donor. The women had two children whom they raised together until separating in July 2011, ironically right around the time that the New York Marriage Equality Law went into effect.  There was no dispute that they considered each other to be “parents” of both children.  In fact, when the children were born they were given A.F.’s surname. But after the break-up, K.H. resisted A.F.’s assertion of parental rights and even took the step of getting the court to change the children’s surname to hers.  A.F. sued to preserve her contact with the children.

At that time, the binding precedent in New York courts was Alison D. v. Virginia M., 77 N.Y.2d 651, a Court of Appeals ruling from 1991, which had been recently reaffirmed by the court in 2010, under which a person in the position of A.F. was deemed to be a “legal stranger” to the children who did not have standing under the Domestic Relations Law to seek custody or visitation. As a result, A.F.’s lawsuit was unsuccessful, with the Appellate Division affirming the trial court’s dismissal of her case in 2014.  From that point forward, A.F. had no contact with the children until her new lawsuit got underway.

After the Court of Appeals decided Brooke S.B., overruling Alison D. and providing that under certain circumstances a lesbian co-parent would have standing to seek custody and/or visitation with children she had been raising with her former partner, A.F. decided to try again. In her new custody case, she also sought a formal Order of Filiation from the court that would confer on her full parental rights for all legal purposes, not just custody and visitation.  This ultimately was the sticking point in the case, because after it was clear that the Family Court was going to apply Brooke S.B. to allow A.F. to revive her custody and visitation claims, K.H. agreed to a negotiated settlement about custody and visitation.

That left the Order of Filiation as the only issue for Judge Tanguay to decide. K.H., and the attorney appointed by the court to represent the children’s interest, continued to strongly oppose such an order.  Under an Order of Filiation, A.F. would have equal rights to participate in all significant parenting decisions, extending to such matters as education, medical care, inheritance and other circumstances where parental status may be significant, and she could also object to any adoption of the children by a new partner or spouse of K.H.

In Brooke S.B., the court carefully acknowledged “limited circumstances in which such a person has standing as a ‘parent’ under Section 70” of the Domestic Relations Law. “Specifically,” wrote Tanguay, “the Court rejected ‘a test that will apply in determining standing as a parent for all non-biological, non-adoptive, non-marital ‘parents’ who are raising children.”  Instead, in a cautious way, the court narrowed its decision to the precise facts of the case before it, and wrote, “We stress that this decision addresses only the ability of a person to establish standing as a parent to petition for custody or visitation.”  Seizing upon this language, K.H. argued that the Court of Appeals had not ruled that a person in A.F.’s position was entitled to be recognized as a parent for all purposes.

“At first blush,” wrote Tanguay, “it would appear that the Court of Appeals in Brooke was attempting to limit its holding to conferring standing to a party only.” But, she pointed out, the court reached this point by “broadening the definition of ‘parent’ to include a non-biological, non-legal ‘parent’ under certain circumstances.”  And the court got there by tracing the evolution of case law and statutes, including, of course the 2011 Marriage Equality Act.  Indeed, the Brooke S.B. decision came more than a year after the U.S. Supreme Court ruled that same-sex couples have a constitutional right to marry, in an opinion that stressed the importance to children being raised by same-sex couples of having two legally recognized parents.

In Brooke, itself, Judge Eugene Pigott, concurring with the court, wrote, “Today, a child born to a married person by means of artificial insemination with the consent of the other spouse is deemed to be the child of both spouses, regardless of the couple’s sexual orientation.” So the issue in this case was whether to bring that one step further to cover same-sex couples who had their children and split up before marriage equality was available in New York.  Although A.F. and K.H. were registered domestic partners, that status under local law did not import any legal parental rights, which are a matter of state law.  Ultimately, Judge Tanguay concluded, the lack of a modern statutory scheme that would explicitly handle this situation is “manifestly unfair not only to the non-biological parent, but to the children who deserve to have a two-parent family when same was intended at their conception.”  The best interests of the children should be the overriding factor.

“The majority in Brooke concluded its opinion by stating, ‘We will no longer engage in the deft legal maneuvering necessary to read fairness into an overly-restrictive definition of parent that sets too high a bar for reaching a child’s best interest and does not take into account equitable principles,’” wrote Tanguay, who continued: “This court will not allow legal maneuvering that permits A.F. to be a ‘parent’ for purposes of custody, visitation and child support, but without more.  It is simply inequitable, and not consistent with prevailing common law as set for herein.”

She granted A.F.’s petition and decreed that the court “issue an Order of Filiation for each child listing A.F. as their legal parent forthwith.”

A.F. is represented by Sherri Donovan of New York City. K.H. is represented by Adrienne J. Orbach of White Plains.  Shiza Khan of New City, N.Y., served as appointed Attorney for the Children.  K.H. was given 30 days to take an appeal from this decision, which was issued on May 25.  An appeal would not delay A.F.’s contact with the children, since the parties had stipulated an agreed-upon arrangement, so the only issue on appeal would be whether A.F. will be accorded all parental rights through the Orders of Filiation.

Mass. High Court Gives OK to Non-Governmental Needle Exchange Programs

Posted on: June 14th, 2017 by Art Leonard No Comments

Giving a very close reading to Massachusetts statutes regulating the sale of hypodermic needles and authorizing the Public Health Department to set up needle exchange programs, the Massachusetts Supreme Judicial Court unanimously ruled on June 14 that there was no legal impediment to a private, non-profit group setting up a free needle-exchange program without the specific approval of local government authorities. The ruling came in response to an attempt by the Town of Barnstable to shut down a free needle exchange program in Hyannis, on Cape Cod, started by the AIDS Support Group of Cape Cod, referred to throughout Justice Barbara Lenk’s opinion for the Court as ASGCC.  AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable, SJC-12224, 2017 Mass. LEXIS 391 (June 14, 2017).

ASGCC started its “free hypodermic needle access program” in 2009, which it has been operating in Hyannis, Provincetown, and Falmouth. The program is intended to help reduce the spread of HIV and hepatitis C by making sure that injectable drug users have clean needles and no need to share used needles.  ASGCC made no attempt to get approval for their program by the local town government, probably anticipating that it would be controversial and likely denied.

According to Justice Lenk’s opinion, “ASGCC seeks to ensure that its clients use a clean needle every time they inject opiates or other drugs. ASGCC therefore conducts an initial assessment of each person who requests needles or other services and provides only as many needles as staff believe will be necessary so that the client will be able to use a clean needle for each injection.  ASGCC provides a collection receptacle for the return of used needles at its facility, encourages clients to return needles, and gives each client an individual ‘sharps container’ for storing used needles before they are returned, but does not require a return of the same number of needles distributed in order to provide additional needles.”

ASGCC also provide other free services such as medical case management, peer support groups, housing, nutritional programs, testing for HIV and other blood-borne conditions, and risk reduction strategies.

The current lawsuit got under way when town authorities claim to have discovered “improperly discarded hypodermic needles in public places” and determined that some of them came from ASGCC’s distribution activities. The town police hand-delivered a “warning” letter to ASGCC’s facility on September 22, 2015, and the town’s director of public health mailed a “cease and desist” order on September 23, 2015, threatening action against ASGCC if it continued to distribute needles.

ASGCC obtained assistance from GLBTQ Legal Advocates & Defenders (GLAD), a Boston-based public interest law firm, which filed suit on their behalf in the Massachusetts Superior Court. GLAD attorney Bennett Klein argued that the town’s order was not authorized by law and sought an injunction against enforcement of the town’s cease and desist order.  Superior Court Judge Raymond P. Veary, Jr., issued a preliminary injunction and the case was certified for a quick appeal, eventually bypassing the Appeals Court and going directly to the Supreme Judicial Court due to the urgency of resolving the issue.

Massachusetts, like many other states, outlawed the sale, distribution and private possession of hypodermic needles except for those sold by licensed pharmacists to fill a prescription by a licensed physician. However, in 2006, in response to intense lobbying by HIV prevention groups and public health officials, the legislature amended the statute to regulate only sales, removing criminal penalties for possession, and authorizing the Department of Public Health to operate non-sale needle exchange programs with local approval.

In defending against ASGCC’s lawsuit, the town argued that under the statute needles can only be legally obtained in Massachusetts either from a licensed pharmacist filling a prescription or from the needle exchange program operated by the Department of Public Health with local government approval.

The Court agreed with GLAD’s argument that this is not what the statutes provide. For one thing, the criminal penalties for sale by anyone other than a licensed pharmacist do not logically apply to ASGCC’s programs, because they are not selling the needles.  They distribute them for free to those who qualify to participate in the program.  Furthermore, the only free needle distribution programs that require local government approval under the statute are those operated by the state Department of Public Health.

“The statutory language is clear that programs such as ASGCC’s are not prohibited,” wrote Justice Lenk, “the legislative history does not evidence an intent to the contrary, and interpreting the two statutes to allow private entities to operate non-sale needle exchange programs does not give rise to an absurd result,” contrary to the town’s arguments.

On the contrary, what the Court would consider to be “absurd” was the town’s argument that the statutes restricting sale of hypodermic needles apply to ASGCC’s free-distribution program, or that by authorizing the Department of Public Health to set up needle exchange programs, the legislature was somehow, without saying so, making those programs the only venue for free distribution of needles. Indeed, one could argue that by decriminalizing private possession of needles and restricting sales to licensed pharmacists, the legislature was leaving unregulated the free distribution of needles.  But the Court did not have to go that far, merely to find that there was no applicable statutory restriction that would support the town’s cease and desist order.

The town argued that the legislature had “anointed” the pharmacists as the “gatekeepers” of “sale and distribution” of hypodermic needles. But the statute does not forbid non-sale distribution by those who are not pharmacists. The town pointed to failed legislative proposals that would have specifically allowed non-profit groups like ASGCC to distribute needles, and argued that the legislature’s intent to ban such programs could be inferred from the failure to pass such bills.  The Court refused to go down the road of reading an affirmative legislative prohibition into the failure of the body to pass a bill.

The possibility that an adverse ruling in this case could spell the end of free needle distribution programs in Massachusetts drew wide attention to the case. The Court receiving a joint amicus brief from a wide array of HIV, LGBT, and professional public health organizations arguing against the town’s position.  Despite evidence that needle exchange programs administered by non-governmental community based groups have been effective at reducing the rate of HIV transmission through shared hypodermic paraphernalia, such programs are still controversial in many parts of the country.  Although the Court’s opinion did not explicitly review policy arguments supporting such programs, the opinion may add support to efforts elsewhere to establish such programs where they don’t presently exist.

 

NY Court of Appeals Rejects Constitutional Challenge to Adult Establishment Zoning Regulations in NYC

Posted on: June 9th, 2017 by Art Leonard No Comments

Bringing possible finality to a lawsuit that has been bouncing back and forth between the Supreme Court, the Appellate Division, and the Court of Appeals for the past fifteen years, the New York Court of Appeals ruled unanimously on June 6 that 2001 amendments to the City’s zoning ordinance governing “adult establishments” do not violate the constitutional rights of businesses that provide sexually explicit materials or activities. Judge Eugene M. Fahey wrote the opinion joined by five members of the seven-member court.  Chief Judge Janet DiFiore did not take part in the case, and there is one vacancy on the court.  For the People Theatres of N.Y. v. City of New York, 2017 N.Y. LEXIS 1406, 2017 WL 2427295 (June 6, 2017).

The zoning ordinance was a major project of Mayor Rudolph Giuliani’s first term, as he had run for office contending that the city had been overrun by adult businesses which were believed to cause harmful effects to the community. Under U.S. Supreme Court precedents, such businesses cannot be banned outright due to First Amendment protection for expressive activity, but they can be regulated because of the “secondary effects” they cause, such as lowering property values in a community and attracting criminal activity.   A local government can take action to restrict where such businesses may operate by documenting the adverse secondary effects and showing that any regulation leaves enough places where adult businesses can operate that consumers can still access their goods and services.

Giuliani had the City Planning Department complete a study of secondary effects of sexually focused businesses, which “identified significant negative secondary impacts, including increased crime, diminished property values, reduced shopping and commercial activity, and a perceived decline in residents’ quality of life,” wrote Judge Fahey. Based on this 1994 study, supplemented by public hearings, the City Council adopted the 1995 Zoning Ordinance, establishing “regulations barring adult establishments from residential zones and most commercial and manufacturing zones, and mandating that, where permitted, adult businesses had to be at least 500 feet from houses of worship, schools, day care centers, and other adult businesses.”

Under these regulations most of the adult business in the city would have to either close down or relocate to remote locations. However, the court mentions evidence presented by the City in the ensuing lawsuits that most of the locations where such businesses could operate were fairly accessible by public transit, albeit distant from where most people live and work.  The Zoning Ordinance applied to any commercial establishment a “substantial portion” of which was “an adult book store, adult eating or drinking establishment, adult theater, or other adult commercial establishment, or any combination thereof.”  Such establishments generally exclude minors and focus their businesses on providing consumers with pornography and sex toys, providing peep shows, lap dances, strip shows, and the like.

The ordinance did not define “substantial portion,” and some businesses proposed to reconfigure their operations to avoid being labelled as “adult establishments” in order to remain in their existing locations. There was litigation around the ordinance itself, which was upheld against a constitutional challenge by the Court of Appeals.  The City adopted procedural guidelines to determine whether a particular business should be labeled an adult establishment.  These provided that “any commercial establishment with at least 40 percent of its customer-accessible floor/cellar area or stock-intrade used for adult purposes qualified as an adult establishment.  Some businesses adjusted by toning down their advertising and signage, moving sexually-oriented materials to back of their spaces, creating separate entries, expanding their non-sexually-oriented inventory, and so forth.   These were called 60/40 businesses.

The City quickly concluded that reducing the area or inventory but continuing to offer the sexually-related materials and exhibitions did not sufficiently change the character of these businesses, and began to cite the businesses for “sham compliance,” which led to new litigation. In 1999 the Court of Appeals ruled that, “sham” or not, once the City had adopted the 60/40 rule, it had to be enforced according to its terms, so businesses that technically complied could not be excluded from their locations under the zoning ordinance.

This led the City Council to adopt amendments in 2001, providing that even an establishment that met the 60/40 test could be considered an adult business depending on a list of criteria spelled out in the amendments. For example, any business operating peep booths, defined as enclosures “where adult movies or live performances are available for viewing by customers,” would qualify as adult bookstores, regardless of compliance with the 60/40 test on floor space and stock.

New lawsuits were launched by business owners in 2002 contesting the constitutionality of the 2001 amendments. One lawsuit was brought by bookstores selling pornography and sex toys, most of which operated peep booths, the other by dinner clubs that provided strip shows and, in some cases, lap dances by performers.  Their central argument was that the 1994 City Planning study could not be used to justify the new definitions of adult establishments because it was conducted with reference to the old definitions.  Thus, the plaintiffs argued, the old study could not serve to document the “secondary effects” that the City was obligated to prove if it wanted to restrict businesses based on the expressive content of their goods and services.  They argued that the alterations they had made substantially changed their businesses, lessening such secondary effects.

This case first made its way to the Court of Appeals in 2005, after Supreme Court Justice Louis York found the 2001 amendments unconstitutional and was reversed by the Appellate Division, which had ruled that a new “secondary impact” study was not required because the plaintiffs’ conversion of their businesses under the 60/40 rule had not really changed the sexual character of the businesses, and that the plaintiffs’ arguments to the contrary were not back up by evidence sufficient to shift the burden back to the City to prove “secondary effects.” The Court of Appeals then disagreed with the Appellate Division’s approach and sent the case back for further proceedings.

In that case, the Court of Appeals adopted a three-stage evidentiary requirement to analyze the status of the zoning regulations. First, the City had to show that it had a “substantial interest in regulating a particular adult activity,” and as to this it seemed that the 1994 City Planning study did the trick. That put the burden on the plaintiffs to show that the City’s evidence “does not support its rationale or provide evidence disputing the municipality’s factual findings.”  If the plaintiffs met that burden, the City would then have to show that the businesses had not so transformed themselves that they “no longer resemble the kinds of adult uses found to create the secondary effects” in the original study.

Where the Court of Appeals disagreed with the Appellate Division in 2005 was on the second stage, as to which the Court then stated that “plaintiffs had furnished evidence disputing the City’s factual findings, shifting the burden back to the City to supplement the record with evidence renewing support for its rationale.” Since new evidence had to be introduced, the case was sent back to Judge York for more fact-finding.  After further discovery and new inspections of the businesses by City officials, Justice York concluded in 2010 that the City had met the evidentiary standard set by the Court of Appeals, providing “substantial evidence” as to the “dominant, ongoing focus” of the bookstores and clubs on “sexually explicit materials and activities.”  Thus, he rejected the plaintiffs’ argument and upheld the constitutionality of the regulations.

The Appellate Division disagreed with Justice York, finding in a 2011 ruling that he had failed to specify “the criteria by which [he] determined that the plaintiffs’ essential nature was similar or dissimilar to the sexually explicit adult uses” underlying the 1995 Zoning Ordinance and had “failed to state the particular facts on which” he based his judgment. The case went back to Justice York, who composed a new opinion, making detailed findings of fact based on the prior hearing record and, this time, concluded that the alterations had, indeed, changed the overall character of the businesses.  He concluded that the plaintiffs “no longer operate in an atmosphere placing more dominance of sexual matters over nonsexual ones.  Accordingly,” he wrote in 2012, “there is no need for the 2001 Amendments.  On their face, therefore, they are a violation of the free speech provisions of the U.S. and State Constitutions.”

This time the Appellate Division affirmed Justice York’s ruling in a 2015 decision, but unfortunately he was not around to learn of this vindication, having passed away in November 2014. In its 3-2 decision by a five-judge bench, the Appellate Division majority focused on four criteria to determine whether the “60/40 businesses” could be considered “adult establishments” under the Ordinance: “(1) the presence of large signs advertising adult content, (2) significant emphasis on the promotion of material exhibiting ‘specified sexual activities’ or ‘specified anatomical areas,’ as evidence by a large quantity of peep booths featuring adult films, (3) the exclusion of minors form the premises on the basis of age, and (4) difficulties in accessing nonadult materials.”

Going with a fine-tooth comb through the factual findings recorded in Justice York’s most recent opinion, the majority of the court decided that both the adult bookstores and the adult clubs had satisfied at least three out of the four criteria, and thus should not be considered adult establishments. They had reduced their signage, de-emphasized the sexually-oriented aspects, and fell short only on one aspect of the checklist: they excluded minors from admission.  The dissenters, to the contrary, concluded that the City had “sustained its burden as to sham compliance by demonstrating that by and large the essential character of the 60/40 businesses has not changed, even if their physical structure has.”

For example, the dissenters could not believe that bookstores operating numerous peep booths for viewing pornography did not meet the test of having a predominant sexual focus, even if they had reduced their signage, and rearranged their layout to make non-adult materials more accessible. Similarly, they could not believe that an establishment that providing “topless dancing by multiple dancers on a daily basis for approximately 16 to 18 hours a day with lap dancing provided in both the adult and the nonadult areas” could not be deemed to be adult establishments.

The City appealed, and the Court of Appeals now agreed with the dissenters in the Appellate Division. They criticized the majority in that court, claiming that it had placed too high an evidentiary burden on the City, misconstruing the Court of Appeals’ prior ruling. “Properly understood,” wrote Judge Fahey, “the trial court’s task was to decide whether the City had relevant evidence reasonably adequate to support its conclusion that the adult establishments retained a predominant, ongoing focus on sexually explicit activities or materials.”  Where the majority in the Appellate Division went wrong, wrote Fahey, was by a “applying a rigidly mechanical approach to the determination of whether a predominant focus on sexually explicit entertainment remained. . . .  As the dissent observed, the majority’s four-prong checklist, with each factor weighing equally, placed subsidiary considerations such as signage on equal footing with the touchstone issue of emphasis on the promotion of sexually explicit activities or materials.”

The Court also criticized the Appellate Division for losing “sight of the fact that the issue was whether there was sham compliance. A bookstore could very well engage in such a sham by removing large signs, allowing minors to enter, and ensuring that non-adult materials are accessible, and yet retain a focus on sexual materials.  A store that stocks non-adult magazines in the front of the store but contains and prominently advertises peep booths is no less sexual in its fundamental focus just because the peep booths are in the back and the copies of Time magazine in the front.  The same is true of the adult eating and drinking establishments.  A topless club is no less an adult establishment if it has small signs and the adjoining comedy club, seating area, or bikini bar is easy to access.”

The practical effect of the Court’s ruling seems to be that as long as a bookstore is selling porn and operating peep booths, it is going to be subject to the zoning ordinance, and the same is likely to be true of any club that is going to provide strip shows, regardless how it reorganizes its space, modifies its signage, or sets its policies on access by minors.

It is ironic that a nearly-quarter-century litigation battle set off by the moralistic Giuliani Administration would be resolved during the De Blasio Administration, but these things have a momentum of their own, and the City Law Department’s mandate was to defend the work product of the City Council, specifically the 2001 Amendments (also a product of the Giuliani Administration, in its final year). The Court’s decision rejecting the constitutional challenge to the 2001 Amendments does not necessarily end the matter, since the plaintiffs could seek U.S. Supreme Court review as to the 1st Amendment aspects of the ruling.  But the New York Court of Appeals has traditionally construed the state constitution to provide more protection for expression than the federal constitution.  But the Court of Appeals grounded its analysis firmly in U.S. Supreme Court decisions, so the case is subject to potential Supreme Court review.  The likelihood that the current Supreme Court would be interested in this case seems rather slim, however.

Giuliani’s efforts did have their intended effect in sharply reducing the number of businesses that could be deemed “adult establishments” by any definition. Perhaps now would be the time for the small number of remaining businesses that were attempting to avoid the zoning rules by rearranging their space, inventory and activities to go back to the political process and the consumers who want to access their goods and services to seek a legislative change.  The Court’s decision says that the City can do what it has done, but does not pose any barrier to the City adopting a less restrictive approach.

Federal Court Dismisses Gay Ugandans’ Lawsuit Against Anti-Gay U.S. Minister

Posted on: June 7th, 2017 by Art Leonard No Comments

U.S. District Judge Michael A. Ponsor dismissed a lawsuit that the Center for Constitutional Rights (CCR) brought against Scott Lively, whom the judge described as “an American citizen who has aided and abetted a vicious and frightening campaign of repression against LGBTI persons in Uganda.” CCR is representing Sexual Minorities Uganda, an umbrella group for LGBTI organizations within that country.  While excoriating Lively for his actions, the judge held  that the Alien Tort Statute (ATS) does not give the federal court jurisdiction to decide whether Lively has violated international human rights.  Sexual Minorities Uganda v. Lively, 2017 U.S. Dist. LEXIS 85836, 2017 WL 2435285 (D. Mass., June 5, 2017).

In a previous ruling on Lively’s motion to dismiss the lawsuit shortly after it was file, Judge Ponsor had rejected Lively’s argument that his action “simply did not violate international norms with sufficient clarity to place it within the narrow class of claims subject to ATS jurisdiction. The court ruled in 2013 that “widespread, systematic persecution of LGBTI people constitutes a crime against humanity that unquestionably violates international norms.”  Lively had also argued in that motion that all of his conduct to which the plaintiffs were objecting took place outside the United States, so a U.S. court could not try and punish him for such conduct.  At that time, Judge Ponsor was not willing to dismiss the complaint on this basis without giving the plaintiffs a chance to conduct discovery in support of their claim that Lively engaged in sufficient activity in the U.S. to subject himself to the court’s jurisdiction.

Lively, who lives in Massachusetts, had email contact with anti-gay individuals, including legislators, in Uganda on several occasions, and traveled to that country several times for meetings that led to the drafting and introduction of a draconian law that would impose the death penalty for “aggravated homosexuality.” Lively’s published anti-gay writings and speeches in Uganda were allegedly an important element in the anti-gay movement in that country.

Judge Ponsor’s description of Lively’s beliefs and activities pulled no punches. “Defendant’s position on LGBTI people range from the ludicrous to the abhorrent,” he wrote.  “He has asserted that ‘Nazism was in large part an outgrowth of the German homosexual movement,’ and that ‘in seeking the roots of fascism we once again find a high correlation between homosexuality and a mode of thinking which we can identify with Nazism.’  He has tried to make gay people scapegoats for practically all of humanity’s ills, finding ‘through various leads, a dark and powerful homosexual presence in . . . the Spanish Inquisition, the French “Reign of Terror,” the era of South African apartheid, and the two centuries of American slavery.’  This crackpot bigotry could be brushed aside as pathetic, except for the terrible har it can cause.”

Ponsor detailed how Lively had “worked with elements in Uganda who share some of his views to try to repress freedom of expression by LGBTI people in Uganda, depriving them of the protection of the law, and render their very existence illegal.”

However, Ponsor concluded, after discovery had been finished, it appears that a small number of email exchanges were all that would link Lively’s anti-gay activities in Uganda with the United States, and the judge considered this inadequate, particularly in light of a recent U.S. Supreme Court decision, Kiobel v Royal Dutch Petroleum Company, 133 S. Ct. 1659 (2013). In that case, a group of residents of Ogoniland, a region of Nigeria, tried to sue two international oil companies in a U.S. federal court under the ATS for engaging in the destruction of the local environment in the course of operations of a subsidiary in Nigeria jointly owned by the companies.  Both the oil companies conduct extensive business activities in the U.S., although they are incorporated and headquartered elsewhere.  The plaintiffs in that case alleged that for years, “the two respondent corporations, acting outside the United States, aided and abetted the Nigerian military and police – providing supplies, transportation, and compensation – in carry out beatings, rapes, murders, and arbitrary arrests of residents, including the four petitioners.”

Awful stuff. But the Supreme Court, in an opinion by Chief Justice John Roberts, found that the corporations’ business activities in the U.S. were insufficient to give a federal court jurisdiction to hold them to account for activities that took place entirely in Nigeria.

The ATS, adopted as part of a 1789 statute that first set up the federal courts below the level of the Supreme Court and specified their jurisdiction, states that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” This statute, notably, does not say anything about who can be sued for such a tort under the ATS, specifying only that people who are not U.S. citizens (“aliens”) can file a lawsuit, and that the case has to involve a violation of “the law of nations or a treaty of the United States.”  Since then the Court has frequently wrestled with the question whether that statute allows a foreign national to file suit in a U.S. court for something that has been done to them outside the U.S..

Roberts invoked “the presumption against extraterritorial application,” under which U.S. courts will not allow lawsuits for events taking place outside the U.S. unless the particular law in question contains a “clear indication of an extraterritorial application.” And Roberts stated that there was “no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms.”  In that case, the Court pointed out, the defendants were foreign corporations, and all of their conduct at issue in the case took place in Nigeria.

Judge Ponsor acknowledged distinctions in Lively’s case. He is a U.S. citizen living in Massachusetts, he has published incendiary anti-gay books in the U.S. that created an international reputation for him, leading anti-gay individuals from Uganda to contact him and invite him to come to their country to lead an anti-gay crusade, and as part of this process, he received emails from them in the U.S. and sent emails from the U.S.  But the judge did not think these distinctions sufficient to confer jurisdiction, in light of the Supreme Court’s ruling and some rulings by lower federal courts in similar cases.

“In this case, now that discovery is complete, the record reveals that Defendant supplied no financial backing to the detestable campaign in Uganda,” wrote the judge, “he directed no physical violence, he hired no employees, and he provided no supplies or other material support.  His most significant efforts on behalf of the campaign occurred within Uganda itself, when he appeared at conferences, meetings, and media events.  The emails sent from the United States providing advice, guidance, and rhetorical support for the campaign on the part of others in Uganda simply do not rise to the level of ‘force’ sufficient to displace the presumption against extraterritorial application.”

Indeed, he pointed out, with the world now “wrapped in a vast network of internet communications,” allowing jurisdiction in a case like this would render the presumption against extraterritoriality a “fiction.” The judge was also concerned about the foreign policy implications of letting foreign nationals sue in a U.S. court in a case like this, which involved “highly placed members of the Ugandan legislative and executive branches in complicity with Defendant.”  He also pointed out that the Ugandan judicial system “has weighed in vigorously on the local issues that Plaintiff wishes to have this court adjudicate here in the United States,” noting that the country’s supreme court had invalidated the anti-statute, concluding that there was not a legal quorum of legislators present when it was sneakily put through the voting process without sufficient advance notice.

The differences between this case and the oil companies case, and the particular factor of Lively being a U.S. citizen, suggest that this need not necessarily be the end of the case. The court noted that CCR had also asserted state law claims against Lively, and that those could be filed in state court.  CCR might also file an appeal in the U.S. Court of Appeals for the 1st Circuit, arguing that the trial judge took too narrow a view of ATS jurisdiction.  But this dismissal is a definite setback in a case that has been pending for several years.

7th Circuit Says Federal Law Protects Transgender Students

Posted on: May 31st, 2017 by Art Leonard No Comments

A unanimous three-judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit upheld a trial court’s preliminary injunction that requires a Wisconsin school district to allow Ashton Whitaker, a transgender boy, to use the boys’ restroom facilities at his high school during his senior year.   Whitaker v. Kenosha Unified School District No. 1 Board of Education, 2017 U.S. App. LEXIS 9362, 2017 WL 2331751.  Circuit Judge Ann Claire Williams wrote the court’s opinion, joined by Circuit Judges Diane Pamela Wood and Ilana Rovner.  This May 30 decision is a landmark ruling: For the first time, a federal appeals court has ruled that Title IX of the Education Amendments Act of 1972, which bans sex discrimination by educational institutions that get federal money, prohibits discrimination against transgender students. The court also ruled that a transgender student subjected to discriminatory treatment by a public school could sue under the Constitution’s Equal Protection Clause.

In a prior ruling involving Gavin Grimm, a transgender boy who is about to graduate from a Virginia high school, the Richmond-based 4th Circuit Court of Appeals ruled that the federal courts should defer to the Obama Administration’s “reasonable” interpretation of Title IX providing protection to transgender students, but that ruling was vacated by the U.S. Supreme Court recently after the Trump Administration withdrew the Obama Administration’s interpretation after the Court had agreed to review the 4th Circuit’s decision.  Gavin Grimm’s appeal from a district court’s denial of his Title IX claim is still pending before the 4th Circuit, although the case may be mooted by his graduation.

Judges Williams and Wood were appointed to the court by President Bill Clinton. Judge Rovner was appointed by President George H. W. Bush. Throughout the opinion, Williams refers to the plaintiff as “Ash,” using the name he prefers and used throughout the papers filed in this lawsuit.

Judge Williams succinctly summarized what the case is about in her matter-of-fact opening sentence: “Ashton (‘Ash’) Whitaker is a 17 year-old high school senior boy who has what would seem like a simple request: to use the boys’ restroom while at school.” The request did not seem simple to Kenosha school authorities, however, because Whitaker is a transgender boy and, as far as the school district is concerned, should be treated as a girl unless or until Ash presents documentation of a completed surgical gender transition resulting in a new birth certificate designating him as male.  However, under the recognized standard of care for gender dysphoria, genital surgery may not be performed until the individual reaches age 18, and his birth state of Wisconsin will not issue such a birth certificate without proof of surgical sex reassignment, so there is no way that Ash Whitaker can satisfy the district’s unwritten policy for being treated as a boy while he is a student there.

According to the court’s opinion, Ash was in the 8th grade when he told his parents that “he is transgender and a boy.”  When he entered Tremper High School as a freshman in the fall of 2013, he identified himself as a boy, cutting his hair short, wearing masculine clothing, and using the name Ashton and male pronouns to refer to himself.  “In the fall of 2014, the beginning of his sophomore year, he told his teachers and his classmates that he is a boy and asked them to refer to him as Ashton or Ash and to use male pronouns,” wrote Williams.  He also began to see a therapist, who formally diagnosed him with gender dysphoria.  After his junior year, he began hormone replacement therapy under the supervision of an endocrinologist and petitioned a local court for a legal name change, which was granted in September 2016.

Ash and his mother began to meet with school authorities in the spring of his sophomore year to request that he be permitted to use the boys’ restrooms at school, but the authorities were resistant. Although the school district has no written policy on the matter, the administration informed him that he was not allowed to use the boys’ restroom, and that they would make an exception to the usual rules and allow him to use a gender-neutral restroom in the school’s main office.  This was not particularly helpful to him, since the main office was “quite a distance from his classrooms.”  Using that restroom between classes would make him late for class.  And, explained Judge Williams, “because Ash had publicly transitioned, he believed that using the girls’ restrooms would undermine his transition.”  And since he was the only student authorized to use the gender-neutral bathroom in the office, “he feared that using it would draw further attention to his transition and status as a transgender student at Tremper.”

There was also a medical complication. Ash has been diagnosed with vasovagal syncope, a condition that makes him susceptible to fainting or seizures if he becomes dehydrated, so he has to drink liquids frequently, which means he needs those bathroom breaks between classes and he can’t easily get by with “holding his water” throughout the day.  In an attempt to avoid having to use bathrooms during the day, he did attempt to restrict his water intake, but with predictable results: fainting and dizziness. In addition, the restrictions placed on him led him to suffer stress-related migraines, depression, and anxiety.  “He even began to contemplate suicide,” wrote Williams.

When he began his junior year in the fall of 2015, he decided to take a risk and use the boys’ restrooms, hoping not to be caught or disciplined. “For six months, he exclusively used the boys’ restrooms at school without incident,” wrote Williams, “but, in February 2016, a teacher saw him washing his hands at a sink in the boys’ restroom and reported it to the school’s administration.”  A guidance counselor contacted his mother and reiterated the restrictive restroom policy.  Ash and his mother met with the assistant principal, who stood firm, pointing out that Ash was listed on the school’s official records as female and any change would require “legal or medical documentation.”  Subsequent correspondence eventually clarified that written certification of his gender dysphoria and of his name change would not be sufficient for the school.  They wanted a male-designated birth certificate before they would make any change.

Despite this incident, Ash continued to use the boys’ restrooms, causing him anxiousness and depression. From the court’s description, it sounds like a “cat and mouse game” was going on at the high school, as security guards were “instructed to monitor Ash’s restroom use” and he sought to evade their gaze.  He was caught a few times and removed from classes to get dressed down by administrators, however, leading classmates and teachers to ask about what was going on.  In April 2016, the school expanded Ash’s restroom access to include two single-user, gender-neutral locked restrooms on the opposite side of the campus from where his classes were held.  He was the only student issued a key to these restrooms.  But again, due to their location they were of little use to him if he wanted to avoid being late for classes, and he felt further stigmatized, avoiding these restrooms entirely.  “In addition,” wrote Williams, “Ash began to fear for his safety as more attention was drawn to his restroom use and transgender status.”  He also began to suffer various other kinds of discrimination connected with the school’s insistence on treating him as a girl, but when he decided to take legal action he restricted his complaint to the bathroom issue.

Ash found a lawyer, who sent a demand letter to the school district, which declined to change its position. Then Ash filed a complaint with the U.S. Education Department’s Office of Civil Rights, alleging a violation of Title IX.  But when it became clear that the administrative process would take too much time to provide relief for him before his senior year began, he withdrew the complaint and filed his lawsuit, seeking a preliminary injunction that would get him restroom access for his senior year.

The school district filed a motion to dismiss the lawsuit, claiming that neither Title IX nor the Constitution provided a legal cause of action for Ash. District Judge Pamela Pepper denied the motion to dismiss and granted Ash’s motion for a preliminary injunction that would allow him to use the boys’ restrooms at school while the case was pending.  A prerequisite for issuing the injunction was Judge Pepper’s determination that Title IX and the Equal Protection Clause both gave Ash legal claims on which he had a “better than negligible” chance of succeeding and that he would suffer irreparable injury, greater than any injury suffered by the school district, if he was denied this relief.

The school district attempted to appeal Judge Pepper’s denial of its motion to dismiss, but the 7th Circuit refused to consider that appeal last year.  A denial of a motion to dismiss a lawsuit is not a final judgment, because it just means that the lawsuit will continue, and if the defendant loses, then the defendant can appeal the final judgment.  Although there is a narrow set of circumstances in which a court of appeals will consider an appeal by a defendant whose motion to dismiss has been denied, this case did not fit within them, a point the court reiterated in its May 30 ruling.  The school district also appealed from Judge Pepper’s preliminary injunction, but the 7th Circuit panel unanimously affirmed Judge Pepper.

The court easily rejected the school district’s argument that Ash would not suffer irreparable harm because the district had made available to him gender-neutral restrooms. The school district also contested the expert testimony offered by a psychologist about the harm that its policies were inflicting on Ash.  Judge Williams quoted Dr. Stephanie Budge’s testimony that the district’s treatment of Ash “significantly and negatively impacted his mental health and overall well-being.”  Clearly, such an effect could not be compensated by an award of monetary damages at a later date, and was thus “irreparable” as that term is used by the courts.  Dr. Budge testified that the school district’s actions, including its bathroom policy, which identified Ash as transgender and therefore, “different,” were “directly causing significant psychological distress and place him at risk for experiencing life-long diminished well-being and life-functioning.”  The court of appeals found no clear error in Judge Pepper’s reliance on this expert testimony, which was not effectively rebutted by the school district.   Furthermore, his experience of using the boys’ restrooms for six months without any incident or complaints from students or teachers belied the school district’s argument that it would suffer serious injury if he were allowed to use those restrooms.

As to the likelihood that Ash would prevail on the merits of his claim at trial, the court did not have to strain much to reach that conclusion. Judge Williams noted that the 7th Circuit, like other courts of appeals, has looked to cases decided under Title VII of the Civil Rights Act of 1964 to determine the scope of the ban on sex discrimination.  On April 4, the 7th Circuit ruled in Hively v. Ivy Tech Community College, 853 F.3d 339, an employment discrimination case, that a lesbian who was denied a faculty position because of her sexual orientation could bring a sex discrimination claim under Title VII.  That ruling was heavily based on a line of federal cases under Title VII that had adopted a broad interpretation of “discrimination because of sex,” and Judge Williams found that the logic of those cases had clearly overruled the 7th Circuit’s decision in Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984), in which it had denied a Title VII claim by a transgender airline pilot.  The Ulane case predated the Supreme Court’s ruling in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the Court found that discrimination against a person because of their failure to conform to sex stereotypes could be found to violate Title VII.  In effect, the Court said that Title VII applied to discrimination because of gender, not just because of biological sex.

“By definition,” wrote Williams, “a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.” The judge cited a long list of federal court rulings that have reached this conclusion and applied Title VII to cases of gender identity discrimination.  The court rejected the school district’s argument that Congress’s failure to amend Title IX or Title VII to expressly protect people based on their transgender status required a different conclusion, and held that “Ash can demonstrate a likelihood of success on the merits of his claim because he has alleged that the School District has denied him access to the boys’ restroom because he is transgender.”  She also pointed out that the school district was misrepresenting Ash’s claim when it argued that he may not “unilaterally declare” his gender, ignoring the medical diagnosis of gender dysphoria.

“Since his diagnosis,” wrote Judge Williams, “he has consistently lived in accordance with his gender identity. This lawsuit demonstrates that the decision to do so was not without cost or pain.  Therefore, we find that Ash has sufficiently established a probability of success on the merits of his Title IX claim.”  The court held similarly regarding Ash’s alternative constitutional equal protection claim, rejecting the school district’s argument that because it has a “rational basis” for adopting its restroom access rule – protecting the privacy of male students who did not want to use a restroom with a girl – it could prevail over Ash on the constitutional claim.  Because the court had concluded that a gender identity discrimination claim is in actuality a sex discrimination claim, it followed that the level of judicial review would be the same that courts use for sex discrimination claims: heightened scrutiny.  Under this standard, the discriminatory policy is presumed to be unconstitutional and the school district has the burden to show that it has an “exceedingly persuasive” justification for adopting the policy.

Such a justification cannot rely on “sheer conjecture and abstraction,” but that’s all the school district had. Judge Williams observed that the administration had never received any complaint from other students about Ash using the boys’ restrooms.  “This policy does nothing to protection the privacy rights of each individual student vis-à-vis students who share similar anatomy and it ignores the practical reality of how Ash, as a transgender boy, uses the bathroom: by entering a stall and closing the door.”  Indeed, Williams might have gone on to write, it would be ludicrous to suggest that a transgender boy is going to expose himself at a urinal, or stand at a urinal and glance over at other boys using the adjacent facilities.

“A transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions,” wrote the judge. “Or for that matter, any other student who uses the bathroom at the same time.  Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns are able to utilize a stall.”

In an interesting excursion into the hotly contested science of sexual identity, Williams added that the school administration’s insistence on treating people in accord with sex markers on birth certificates would not necessarily address their concerns. “The marker does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex,” she wrote.  “Therefore, one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another.  It is also unclear what would happen if an individual is born with the external genitalia of two sexes, or genitalia that are ambiguous in nature.  In those cases, it is clear that the marker on the birth certificate would not adequately account for or reflect one’s biological sex, which would have to be determined by considering more than what was listed on the paper.”

She also noted the lack of consistency among the various states in what they require to change birth certificates. Depending where a transgender student was born, they might be able to get a new certificate without a surgical sex reassignment procedure, thus defeating the school’s underlying purpose in relying on the birth certificate.  She also pointed out that the school district did not have a policy requiring newly registering students to present birth certificates, allowing them to present passports as identification as an alternative. The U.S. State Department no longer requires proof of sex-reassignment surgery for a transgender man to get a passport correctly identifying his gender, so a transgender boy who had obtained an appropriate passport could register in the Kenosha School District as a boy.

Thus, having found that Ash’s allegations fulfilled all the tests required for obtaining a preliminary injunction, the court denied the school district’s appeal and affirmed the injunctive relief. There were no immediate indications that the school district would seek en banc review or petition the Supreme Court for a stay.

Ash is represented by Robert Theine Pledl of Pledl & Cohn, Milwaukee; Joseph John Wardenski and Sasha M. Samberg-Champion, of Relman, Dane & Colfax PLLC, Washington D.C.; and Shawn Thomas Meerkamper, Alison Pennington and Ilona M. Turner, with the Transgender Law Center of Oakland, California. Amicus briefs in support of Ash’s case were received from a variety of groups representing school administrators, parents, students, and LGBT rights organizations.  Among those joining in were Lambda Legal, PFLAG, Gay-Straight Alliances, and women’s rights groups, with several major law firms stepping up to author the amicus briefs.  The only amicus support for the school district came from Alliance Defending Freedom (ADF), the anti-gay religious litigation group that has championed lawsuits attacking school districts for allowing transgender students to use facilities consistent with their gender identity.