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

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

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

The court summarized the evidence introduced at trial:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted on: October 4th, 2017 by Art Leonard No Comments

 

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

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

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

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

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

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

11th Circuit Rejects Tax Deductibility of Surrogacy Expenses

Posted on: October 3rd, 2017 by Art Leonard No Comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

N.Y. Appellate Division Upholds Vacating Adoption by Father’s New Boyfriend on Petition by Father’s Husband

Posted on: October 3rd, 2017 by Art Leonard No Comments

On September 28, 2017, a unanimous five-judge panel of the N.Y. Appellate Division, First Department, held that New York County Family Court Judge Stewart H. Weinstein had properly granted a motion by Han Ming T., the husband of Marco D., to vacate a May 2016 order that had granted an adoption petition by Carlos A., Marco’s boyfriend, to adopt a child conceived through gestational surrogacy using Marco’s sperm at a time when Marco and Han Ming were subsequently deemed to be married.  Ming, who had initiated a divorce proceeding in Florida in which he sought joint custody of the child, then unaware that the adoption petition had been filed in New York, showed that he was entitled to notice of the adoption petition and respect for his parental rights.  Carlos and Marco had failed to inform the Family Court that the status of the child in question was implicated in an ongoing divorce proceeding, so that court had originally granted the adoption unaware that there was a legal impediment as the consent of Ming was lacking. In re Maria-Irene D., 2017 N.Y. App. Div. LEXIS 6713, 2017 WL 4287334, 2017 N.Y. Slip Op 06716.

Marco and Ming, who are both British citizens, entered a formal civil partnership in the U.K. in 2008, which they converted into a legal marriage in 2015. Under British law, their marriage was treated as retroactive to the date of their civil partnership.  Between those two dates they had relocated to the U.S., living in Florida.  In 2013 they undertook to have a child through gestational surrogacy, a process by which an egg is extracted from a donor, fertilized in a petri dish, and then implanted in a surrogate.  Both men contributed sperm for several in vitro fertilization attempts; the one that “took,” using Marco’s sperm, was implanted in the surrogate.  This process was carried out in Missouri, where the child, who was named after the mothers of both men, was born in September 2014.  A Missouri court then terminated any parental rights of the egg donor and the surrogate and designated Marco, the genetic father, as having “sole and exclusive custody” of the child.  “Marco, Ming, and the child returned to Florida, where they lived as a family until October 2015, when Ming returned to the UK to seek employment,” wrote the court.

But evidently the relationship of the men was complicated during that time, because, the court reports, “At some point in or after 2013, Marco entered a relationship with petitioner Carlos A., and they moved to New York with the child after Ming went to the U.K.” Carlos petitioned the New York County Family Court to adopt the child in January 2016.  The adoption papers “disclosed that Marco and Ming were married in 2008, but alleged that they had not lived together continuously since 2012 and that Carlos and Marco have been caring for the child since her birth.  A home study report stated that Marco and Ming legally separated in 2014 and had no children together.”  That Ming had participated in the surrogacy process and that Marco, Ming and the child lived together as a family thereafter were not disclosed to the Family Court in the adoption proceeding.   Neither did Carlos and Marco disclose to that court prior to the adoption order being granted that Ming had filed a divorce action in Florida in March 2016, seeking joint custody of the child.

The Family Court granted the adoption in May 2016. When Ming learned of this, he filed a motion in the Family Court to vacate the adoption “on the ground that relevant facts had not been disclosed to the court and that he was entitled to notice of the adoption and an opportunity to be heard since he had parental rights.”  Judge Weinstein granted Ming’s motion and vacated the adoption, finding that Carlos and Marco made “material misrepresentations” to the court and that Ming was entitled to notice of the proceeding.  Weinstein did leave open the possibility that depending how the divorce proceedings were resolved in Florida, Carlos might later renew his petition to adopt the child.  Carlos moved for re-argument, but the motion was denied, and Carlos and Marco appealed.

The Appellate Division found that the Family Court “providently exercised its discretion in vacating the adoption.” Since the Marco-Ming marriage was retroactive to 2008 under U.K. law, it would be recognized as such under New York law as a matter of comity.  Which meant that the child, born in 2014, was a child of the marriage, “giving rise to the presumption that the child is the legitimate child of both Marco and Ming.”  The court noted Ming’s allegation that they lived together as a family in Florida, and that “the couple took affirmative steps in the U.K. to establish Ming’s parental rights in accordance with U.K. law.”  The court doesn’t explain this further.  Perhaps it refers to their subsequent 2015 marriage, which had retroactive effect under U.K. law to 2008, thus establishing Ming’s parental status, regardless of the Missouri judgement awarding Marco sole and exclusive custody.  (One has to factor into the mix that in 2014 same-sex couples could not marry in Missouri and their U.K. legal status as civil partners when the child was born would have no recognition under Missouri law, so naturally a Missouri court at that time would not recognize Ming as having any legal relationship to the child.)

“The prevailing law at the time the adoption petition was granted does not compel a different result,” said the court. As far as this court was concerned, as a matter of New York law according comity to the retroactive effect of their U.K. marriage, “Marco and Ming were deemed legally married when they embarked on the surrogacy process to have a child together.  Accordingly, the child was born in wedlock, and Ming was entitled to notice of the adoption proceeding.  Under the Court of Appeals’ most recent decision concerning parental standing (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 [2016]), Ming’s claim to have standing as a parent is even stronger.”

The court also found the failure by Carlos and Marco to disclose the Florida divorce proceeding to the Family Court to be “another ground to vacate the adoption,” since an adoption petition requires the petitioner to disclose to the court whether the child is the subject of any other legal proceeding affecting his or her custody or status, and Ming had petitioned for joint custody of the child in the Florida proceeding. Carlos and Marco learned of that proceeding a few months after Carlos’s adoption petition was filed, while that petition was still pending before the Family Court, so they had a duty to bring it to the attention of that court.  Instead, they filed a supplemental affidavit claimed that there had been no change in the child’s circumstances “whatsoever” since the filing of the adoption petition.

Ming is represented by Nina E. Rumbold of Rumbold & Seidelman, LLP (Bronxville). Carlos and Marco are represented by Frederick J. Magovern of Magovern & Sclafani, Mineola.  There is no attorney appointed to represent the child’s interest, a point that Carlos and Marco raised in their appeal but as to which the Appellate Division declined to rule.  The court’s opinion does not report on the current status of Ming’s Florida divorce proceeding.  It is possible that Ming and Marco are still legally married, which perhaps explains why Carlos and Marco are not?

 

N.Y. Family Court Judge Uses Equitable Estoppel to Find Co-Parent Standing in the Absence of Pre-Conception Agreement

Posted on: October 3rd, 2017 by Art Leonard No Comments

Filling a gap in New York family law left open by the New York Court of Appeals’ 2016 decision In the Matter of Brooke S.B., 28 N.Y.3d 1, 61 N.E.3d 48839 N.Y.S.3d 89, Nassau County Family Court Judge Thomas Rademaker held in J.C. v. N.P., a decision published by the New York Law Journal on September 27, 2017, that the doctrine of equitable estoppel could be used to establish the standing of a lesbian co-parent who could not show that she and her former partner, the birth mother, had a written pre-conception agreement concerning parentage of the two children that were born during their relationship. (At the time of writing, the opinion had not yet appeared in the Lexis or Westlaw databases or been assigned a N.Y. Slip Opinion number, and the version of the opinion published on the Law Journal website did not include a docket number, but bore the date of publication of September 27.) In Brooke S.B., a similar case in other respects, the Court of Appeals had relied on the plaintiff’s allegation of the existence of a pre-conception agreement in determining the standing of an unmarried co-parent to seek custody, and stated “we do not opine on the proper test, if any, to be applied in situations in which a couple has not entered into a pre-conception agreement.”

The Court of Appeals’ statement left an ambiguity for lower courts confronted by cases such as J.C. v. N.P.. Does “if any” mean that co-parents who lack evidence of a pre-conception agreement are categorically barred from establishing standing to seek custody and visitation after their relationship with the child’s birth mother ends, as would be the case under the older precedents overruled in Brooke?  Or, to the contrary, could it just mean that lower courts have room to consider other legal doctrines that would enable them to reach what should be the overriding question in such custody/visitation disputes: what is in the best interest of the children?

Judge Rademaker opted for the second approach. “It is doubtful that the Court of Appeals meant that no test should apply and it is beyond doubt that the Court of Appeals carefully tailored their holding to the fact specific case before them.  Simply put, the holding in Brooke applies to situations when a pre-conception agreement is proven to exist by clear and convincing evidence.”  Further, the “if any” comment struck Rademaker as showing that the Court of Appeals felt it was premature to take the next step of allowing a co-parent to establish standing based on events that occurred upon and after the birth of the child until an appropriate case arose that required determination of that question.  While finding that relying solely on a “best interest of the child” test would provide “far too amorphous a standard” to determine co-parent standing, wrote Rademaker, “Given precedent, the social and legal acknowledgement of same sex marital status, parentage, and the like, this Court looks to the doctrine of equitable estoppel for guidance in the instant matter.”  Rademaker explained that this doctrine has been frequently pressed into service by New York courts in determining that a man without a biological/genetic relationship to a child can be deemed a parent in certain circumstances, and he noted that those opinions emphasized that the overriding factor in such cases should be the best interest of the child.

“To prevail on the grounds of estoppel, the moving party bears the burden of proving, by clear and convincing evidence, that she has the right to the relief being sought,” the judge wrote, disclaiming any intent to create rigid guidelines or lists of factors that must be proven, while taking note of the factors that had been cited by the courts in cases determining men’s status as fathers.

In this case, the court found, J.C. and N.P. began their relationship around January 10, 2014, at which time N.P. was still married to, but separated from, another woman. Within days, N.P. became pregnant through donor insemination, and J.C. participated fully during the pregnancy, accompanying N.P. on doctor visits.  “Throughout their relationship,” Rademaker found, “including the pregnancies, the parties lived together in each other’s homes which they separately owned, dividing time between the two homes depending upon the season and work schedules.”  When their first child, C.C., was born on September 29, 2014, they brought him to J.C.’s house, where a nursery room had been prepared for the child.  Through the women’s subsequent relationship, including the birth to N.P. of a second child conceived through donor insemination who was born in May 2016, the women both functioned as parents, were regarded as a family by the children’s pediatrician, neighbors, and their other family members.  The two children are described by the court as “biological siblings,” presumably because the same man served as sperm donor for both children.

There was also documentary evidence, in the form of an email N.P. sent to her parents on October 16, 2015, as she and J.C. were going to the airport for N.P. to travel, in which she stated: “Since I have a child, don’t have a legal will and [JC] and I aren’t married yet, I figured I would put my wishes in writing just in case of an unfortunate event and I don’t return from Miami safely. Since [JC] is [CC]’s co-parent and other mommy, my wish is for her to have full custody and raise [CC] as her own in the instance I’m not on this earth to raise her myself.  Thank you!”  Although N.P. testified that this was sent to assuage J.C.’s concerns, the court found no reason to believe the statement was sincerely meant.

In a footnote, Judge Rademaker specifically rejected N.P.’s argument that J.C.’s standing claim was barred by the fact that N.P. was married to another woman at the time of C.C.’s conception. “It has been held that the presumption of legitimacy is a presumption of a biological relationship, not a legal relationship,” he wrote, “and therefore has no application to same-gender married couples,” citing Matter of Paczkowski v. Paczkowski, 128 App. Div. 3d 968 (2nd Dept. 2001).  “Moreover,” he wrote, “respondent’s judgment of divorce from her prior spouse clearly rebuts any presumption that C.C. is a child of that marriage, and respondent is bound by that determination under the doctrine of collateral estoppel.”  He also rejected N.P.’s argument that the failure of J.C. to adopt the children due to N.P.’s negative response to J.C.’s suggestions should carry more weight than the tangible evidence of N.P. treating J.C. as a parent and sharing parenting responsibilities with her.  “Simply stated,” wrote the judge, “respondent may have been apprehensive at times about the course of the relationship and perhaps even embarrassed by comments made by petitioner at particular family events but respondent’s daily words and actions with and toward petitioner, as well as CC and AJ [the second child], throughout the relationships were, in fact, quite different.”

The parties’ relationship ended early in 2017 and they separated, but J.C. continued “to see, care for, and tend to the children,” and they all went together on a ski weekend trip in February “together with the children sharing the same room together with the children after the relationship purportedly ended.”

Rademaker found that J.C. had “established by clear and convincing evidence that respondent created, fostered, furthered, and nurtured a parent-like relationship between the children and petitioner. Commencing just a few days after the older child’s conception, and continuing well after the demise of the parties’ relationship, respondent acted as if petitioner was a parent and acknowledged to petitioner, the children, and others that petition was essentially a parent, to wit, a “Mommy,” and both respondent and the children benefitted from this parent-like relationship on a daily basis for years.  Petitioner is adjudicated to be a parent of the subject children and therefore, has standing to seek visitation and custody.”

The next step will be for the court to determine whether it is in the best interest of the children for J.C. to be granted custody and visitation rights.

The Law Journal article reporting on the decision suggested that this was the “first” New York court decision to “offer an answer” to the question whether a co-parent could be adjudicated to be a parent in the absence of a pre-conception agreement. Neither the article nor the opinion identified counsel for the parties.  In a footnote, Judge Rademaker acknowledged the “invaluable assistance of Court Attorney Jeremy Jorgensen in the preparation of this decision.”

 

Federal Court Ruling on “Religious Exemptions” from Anti-Discrimination Laws on Same-Sex Weddings May Preview Supreme Court Decision

Posted on: September 25th, 2017 by Art Leonard No Comments

 

Chief Judge John R. Tunheim of the U.S. District Court in Minnesota ruled in Telescope Media Group v. Lindsey, 2017 WL 4179899, 2017 U.S. Dist. LEXIS 153014 (D. Minn., Sept. 20, 2017), that for-profit businesses do not enjoy a constitutional right to refuse to provide their services for same-sex weddings on the same basis that they provide services for different-sex weddings.  Turning back a case brought by the anti-gay religious litigation organization, Alliance Defending Freedom (ADF), Judge Tunheim issued a comprehensive ruling that may provide a preview of what the U.S. Supreme Court will say in the Masterpiece Cakeshop case from Colorado during its forthcoming term, at least regarding the 1st Amendment issues common to both of the cases.

ADF immediately announced that it will appeal the court’s ruling to the U.S. Court of Appeals for the 8th Circuit, based in St. Louis, Missouri.

Judge Tunheim’s ruling is particularly significant because it is the first by a federal court to address this issue. Since 2013, several state appellate courts have ruling against such exemptions from compliance with state anti-discrimination laws, rejecting appeals by defendants who sought to overturn rulings against them by state human rights agencies in cases involving wedding photographers, florists, bakers, and wedding venues.  In this case, however, a videography business that claimed to be planning to expand into the wedding video business sought an advance declaration from the federal court that they would be constitutionally protected if they were threatened with prosecution under Minnesota’s ban on public accommodations discrimination because of sexual orientation.

This issue has previously avoided litigation in the federal courts because there is no federal law prohibiting discrimination because of sex or sexual orientation by businesses providing goods or services to the public. When “sex” was added as a prohibited ground of discrimination through a floor amendment to the pending Civil Rights Act in Congress in 1964, the amendment was directed solely to the employment discrimination section of the bill.  The public accommodations section was not amended to include “sex”.  The Equality Act bill first introduced in Congress two years ago would add both “sex” and “sexual orientation” to that part of the Civil Rights Act.

The state rulings all came in cases where businesses were being prosecuted under a state law. Because these are local businesses operating in the same jurisdiction where the plaintiffs live, there was no basis for the defendants to remove them to federal court, since the federal constitutional arguments were raised as defenses, and federal “removal” jurisdiction is based either on diversity of citizenship of the parties or a federal question being raised by the plaintiff in the complaint.

This case was brought by ADF on behalf of Carl and Angel Larsen and their company, Telescope Media Group, which specializes in producing videos for a fee. They are interested in expanding their business to include wedding videos.  They strongly oppose same-sex marriage, and one of their goals in expanding their business is to propagate their view that only a marriage between a man and a woman is appropriate by including in every contract they make a provision by which the couple purchasing the video gives Telescope Media the right to provide public access to the video through their website and postings on social media.  Thus, their mission in expanding into the wedding video business is not just to make money but also to promote different-sex marriage, which they consider to be an institution that is endangered by social changes such as the marriage equality movement.  They also want to be able to include a notice on their website that they do not provide video services for same-sex marriages.

The Minnesota public accommodations law was amended in 1993 to add “sexual orientation” to the prohibited grounds of discrimination. After Minnesota’s legislature enacted a marriage equality law in 2013, the Minnesota Department of Human Rights (MDHR) published an “interpretive guidance” for businesses covered by the law, stating clearly that the state law “does not exempt individuals, businesses, nonprofits, or the secular business activities of religious entities from non-discrimination laws based on religious beliefs regarding same-sex marriage.”  The guidance makes clear that people denied services by such businesses could file discrimination charges with the agency, which could result in penalties for violation of the law.

ADF alleged in its complaint that Telescope Media has already been contacted by at least one same-sex couple seeking video services for their wedding, but they were told that Telescope Media does not do wedding videos. This is legal, since they are not discriminating between same-sex and different-sex couples.  They claim they want to get into this potentially lucrative business, but are concerned about exposing themselves to legal liability, and seek the shelter of a declaratory judgment that they are privileged to turn down same-sex wedding business.

ADF came up with seven legal theories in support of their claim to constitutional protection, based on the 1st and 14th Amendments. They claimed that any legal requirement that they must provide services to same-sex couples would violate their rights to freedom of speech, expressive association, free exercise of religion, equal protection of the laws, and both procedural and substantive due process.  Their freedom of speech argument subdivides into the freedom to advertise their wedding video business as available only to different-sex couples, and their freedom not to be compelled to produce wedding videos that celebrate same-sex marriages and thus communicate a message of approval that contradicts their religious-inspired views.  The court rejected their argument that under the Minnesota law they could be compelled to display publicly any same-sex marriage videos that they might produce.

Judge Tunheim carefully and systematically rejected all of their arguments, citing extensively to U.S. Supreme Court decisions dealing with comparable situations. Before tackling the substantive issues, he had to deal with whether this lawsuit was an attempt to get an advisory opinion, which is beyond the jurisdiction of federal courts.  In this case, the fact that the MDHR has announced in advance its view that declining same-sex marriage business would violate the Human Rights Act helped to convince the court that prosecution of Telescope Media if it implemented its business plan was not merely theoretical.  If they have a constitutional right, the existence of the law and the agency’s intention to enforce it back their claim that they are being deterred from potentially exercising a constitutional right by expanding their business.  Thus, Tunheim rejected the argument by the state’s attorneys that the court had no jurisdiction over the case, since there is a real “case or controversy,” not a purely hypothetical case.

Turning to the merits, however, Judge Tunheim agreed with the growing body of state court appellate decisions that have rejected these constitutional arguments, for all the reasons that have been cited in those cases.

The court found that the MDHR is not a content-based regulation of speech, does not target religion, is subject only to intermediate scrutiny under 1st and 14th Amendment principles, and is sustained by the state’s important interest in preventing discrimination by businesses providing goods and services to the public.

Judge Tunheim rejected ADF’s argument that requiring a business to make wedding videos for same-sex couples if they make them for different-sex couples would violate the prohibition against government-compelled speech.   “Where a business provides a ‘conduit’ that allows others to pay for speech,” as in the case where the business makes an expressive product like a video for monetary compensation, “strict scrutiny is usually unnecessary because there is ‘little risk’ of compelled speech or that the public will attribute the message to that of the speaker,” he wrote.  “Further, courts generally do not find compelled speech where the speaker may easily disclaim the message of its customers.”

“The law does not compel the Larsens to speak a specific government message,” he continued, “unlike the message on the license plate in Wooley or the words of the pledge of allegiance in Barnette,” referring to cases where the Supreme Court held that a state cannot compel a person to display a political message on his license plate or to speak the flag salute against his will.  “The law does not dictate how the Larsens carry out any of their creative decisions regarding filming and editing.  While the law does incidentally require wedding videographers to make videos they might not want to make, the concerns undergirding the application of the compelled speech doctrine to instances of hosting another’s message are immaterial.”

At the heart of his analysis was the simple proposition that “speech-for-hire is commonly understood to reflect the views of the customer. Weddings are expressive events showcasing the messages and preference of the people getting married and attendees, who do things like speak, dress, and decorate in certain ways.  A video of a wedding depicts this expressive event, and while videographers may exercise creative license to fashion such a video, the videographer is a ‘conduit’ for communication of the speech and expression taking place at the wedding.”

Further, he pointed out, the Larsens can always post an announcement on their website stating that they are complying with the law by making videos of same-sex weddings, but that they are opposed to same-sex marriage. This sets their case apart from Hurley, the Supreme Court case holding that Massachusetts could not compel parade organizers to include a gay group if the organizers did not want to send a gay rights message through their parade.  Finally, he pointed out, making wedding videos for same-sex couples would not impede the Larsens’ ability to propagate their own message.  They would not be required to exhibit these videos on their website or place them on social media, as the court found that the MDHR would not be interpreted to impose such a requirement.

The court held that the ability of the MDHR to decide whom to prosecute under the statute did not destroy its content-neutral character, and that requiring Telescope Media to afford equal access to its services for same-sex weddings did not violate its right of expressive association. Indeed, ADF’s argument on this issue would undermine all anti-discrimination laws, were a court to accept the argument that every interaction with a potential customer could be avoided on grounds of “forced association.”  Historically-mind people may recall that then-Professor Robert Bork opposed the public accommodations provisions of the proposed Civil Rights Act in 1964 by describing the proposition that forcing businesses to provide services to people of color as one of “surpassing ugliness” because it would force people into unwanted personal associations.  These sorts of views led to the defeat of Bork’s nomination by President Reagan to the Supreme Court in 1987.

Because the judge found the Minnesota Human Rights Act to be content-neutral as far as religion goes, it easily rejected the idea that evenhanded application of the law would constitute a violation of free exercise, and it similarly rejected the argument that the law imposed an “unconstitutional condition” on the Larsen’s ability to conduct business in Minnesota. Because the law applied to all videography businesses, there was no viable Equal Protection claim.  Similarly, there was no viable procedural due process claim since the law’s prohibition was not unduly vague, and its use of the phrase “legitimate business purposes” to describe circumstances under which a business could refuse to provide a service to a consumer had a well-established legal meaning that would not leave reasonable people guessing as to the scope of their legal obligations.

Finally, having found that the law did not unconstitutionally abridge any of the Larsen’s substantive constitutional rights, the court easily concluded that it did not violate the 14th Amendment’s substantive due process protection for individual liberty. The court found that there is no recognized “fundamental right to work or operate a business free from regulations that one dislikes.  Absent some authority to the contrary, the Court declines to expand the reach of substantive due process to these facts, as the doctrine is ‘reserved for truly egregious and extraordinary cases,’” citing several U.S. Supreme Court decisions limiting the scope of substantive due process doctrine.

Judge Tunheim found that the state’s attorneys had “met their burden to demonstrate that Counts I-VII in the Amended Complaint all fail as a matter of law,” so there is nothing left to litigate and the court granted the state’s motion to dismiss the complaint.

ADF’s appeal to the 8th Circuit is unlikely to result in a quick decision, because the Supreme Court will soon schedule oral arguments in the Masterpiece Cakeshop case, which presents many of the same issues.  This is an appeal of a ruling by the Colorado Court of Appeals that the Cakeshop and its proprietor, Jack Philips, violated the state’s human rights law by refusing to make a wedding cake for a same-sex couple because of his religious objections to same-sex marriages.  The hearing will probably take place later this year, with a decision expected in the spring of 2018.

The 8th Circuit may decide to follow the same procedure it followed in 2014 and 2015 when it received state appeals from district court marriage equality rulings while a similar case from the 6th Circuit was pending in the Supreme Court. The 8th Circuit put the appeals “on hold” to see what the Supreme Court would do, and then after the Obergefell ruling it simply followed the Supreme Court’s lead, as it would be required to do by precedent.

However, because ADF has alleged various legal theories that were not advanced in the Masterpiece Cakeshop case, a Supreme Court ruling in that case may not definitively answer all the questions raised in Telescope Media, so it is possible that the 8th Circuit will find this case different enough to justify going forward without waiting for the Supreme Court’s ruling.

 

Former Texas Supreme Court Chief Justice Seeks Reversal of His Old Court’s Opinion

Posted on: September 25th, 2017 by Art Leonard No Comments

On June 30, the Texas Supreme Court issued a ruling claiming that the U.S. Supreme Court’s Obergefell marriage equality decision from June 2015 did not necessarily require state and local governments to treat same-sex and different-sex marriages the same for government employee benefits purposes. On September 15, asserting that his old court’s decision was clearly wrong, retired Texas Supreme Court Justice Wallace B. Jefferson and lawyers from his Austin firm, Alexander Dubose Jefferson & Townsend LLP, asked the U.S. Supreme Court to reverse the ruling.

Jefferson, an African-American Republican, was appointed to the court in 2001 by Governor Rick Perry, who then elevated him in 2004 to the Chief Justice position, where he served until retirement in October 2013. Justice Jefferson was the first African-American to serve on Texas’s highest court.  His law firm was retained by Houston Mayor Sylvester Turner to represent the City in petitioning the Supreme Court for review.

The case arose in 2013 when then-Mayor Annise Parker, an out lesbian and longtime LGBT rights activist, reacted to the Supreme Court’s decision to strike down the federal Defense of Marriage Act by asking her City Attorney whether the reasoning of that case would require the City of Houston to recognize same-sex marriages of City employees. Although Texas did not allow same-sex marriages then, some City employees had gone out of state to marry and were seeking health care benefits for their spouses under the City’s employee benefits plan.  Parker got the answer she was seeking and ordered an extension of benefits to City employees’ same-sex spouses.

Two local Republican activists, Jack Pidgeon and Larry Hicks, sued the City and Mayor Parker, seeking an injunction against extension of the benefits. They persuaded a state trial judge to issue a preliminary injunction, barring the benefits from going into effect pending the outcome of the litigation.  The court relied on the Texas constitutional and statutory bans on same-sex marriage, which had not yet been challenged in court as of that time.  The City appealed the preliminary injunction.

While the appeal was pending before the Texas Court of Appeals, the U.S. Supreme Court decided the Obergefell case, and the U.S. Court of Appeals for the 5th Circuit, which is based in Houston, promptly affirmed a 2014 marriage equality ruling by the federal district court in San Antonio, DeLeon v. Abbott, declaring unconstitutional the Texas same-sex marriage bans that had been the basis for the trial court’s injunction. Then the Texas Court of Appeals issued a ruling reversing the trial court’s preliminary injunction and instructing that court to decide the case consistent with the DeLeon decision.  Pidgeon and Hicks appealed that ruling to the Texas Supreme Court.

 

After extensively considering the matter, the Texas Supreme Court announced that it would deny review of the Court of Appeals ruling. This outraged Texas Republican leaders, including Governor Abbott, and the state Republican Party went to work encouraging people to bombard the court with communications urging it to reconsider and grant review, and then to reverse the court of appeals.  Perhaps it is not surprising, considering the very political nature of that court, made up entirely of Republican justices (since Texas has not had a Democratic governor since George W. Bush defeated Ann Richards in 1994), that the court succumbed to these demands, reconsidered, and granted review.

On June 26, 2017, the U.S. Supreme Court issued its decision in Pavan v. Smith, a challenge to the refusal by Arkansas officials to list both members of married lesbian couples on birth certificates when one of them gave birth to a child through donor insemination. In that ruling, the Supreme Court made abundantly clear that the Obergefell decision had effectively decided the Pavan case by holding that same-sex couples had the same constitutional rights regarding marriage as different sex couples, extending to the entire “constellation of rights” that went with marriage.  The Supreme Court did not even bother to hold oral argument in the Pavan case, simultaneously granting the petition to review an adverse decision by the Arkansas Supreme Court and issuing a brief memorandum opinion, from which three members of the Court dissented in an argumentative and disingenuous memorandum attributed to recently-appointed Justice Neil Gorsuch and signed by Clarence Thomas and Samuel Alito.  The Pavan opinion left no doubt that same-sex and different-sex married couples must be treated the same by government entities under the 14th Amendment.

But it was evidently not clear to a majority of the Texas Supreme Court, which just days later issued its ruling, reversing the court of appeals and sending the case back to the trial court in Houston, with instructions to give Pidgeon and Hicks an opportunity to try to convince the court that the City of Houston was still required to refuse recognition to the marriages of same-sex couples under its benefits plan, relying on the Texas constitutional and statutory ban that was declared unconstitutional by the 5th Circuit. A majority of the Texas Supreme Court clings to the idea that constitutional rulings by the lower federal courts are not binding on the Texas state courts.    The Texas court suggested that the U.S. Supreme Court’s opinion in Obergefell could be interpreted narrowly to address solely the question whether states must allow same-sex couples to marry and must recognize same-sex marriages contracted from out of state, but that the Obergefell opinion said nothing directly about what rights must be accorded to same-sex married couples.  This is, as Justice Jefferson’s Petition to the Supreme Court makes clear, blatantly untrue.  It treats the Pavan ruling as if Justice Gorsuch’s dissent was speaking for the Court.

Justice Jefferson’s Petition on behalf of Mayor Turner and the City of Houston makes mincemeat out of the work product of his former colleagues, quoting clear language from Obergefell which, among other things, specifically mentioned health insurance as an example of how the denial of marriage to same-sex couples violated their fundamental right to marry and to be treated equally with different-sex couples.

This case is just as clear as Pavan was, and is likely to receive the same treatment from the U.S. Supreme Court, unless that Court finds some procedural or jurisdictional reason to dismiss the Petition without deciding the question presented by the petitioners: “Did the Supreme Court of Texas correctly decide that Obergefell v. Hodges and Pavan v. Smith ‘did not hold that states must provide the same publicly funded benefits to all married persons,’ regardless of whether their marriages are same-sex or opposite-sex?” Some have suggested that because the Texas Supreme Court was ruling only on the validity of a preliminary injunction, the matter is not procedurally ripe for U.S. Supreme Court review, but any attempt to reinstate the preliminary injunction would directly violate the constitutional rights of Houston City employees in clear violation of the Obergefell ruling.

On a parallel track, Lambda Legal filed a federal district court lawsuit in Houston over the summer on behalf of some married LGBT City employees, seeking a declaratory judgment that they are entitled to the same benefits for their spouses that their straight colleagues get. If the Supreme Court does not grant Justice Jefferson’s Petition, it is likely that the matter can be resolved relatively quickly through Lambda’s case, since the City would eagerly comply with an order by the U.S. District Court to provide equal benefits.  This is, at heart, a dispute between the pro-LGBT Houston Democratic city government and the anti-LGBT Republican state government.

 

 

Arizona Supreme Court Holds Parental Presumption Applies to Lesbian Married Couples

Posted on: September 19th, 2017 by Art Leonard No Comments

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ACLU Reboots Gavin Grimm Challenge to Gloucester School Board Policy

Posted on: September 2nd, 2017 by Art Leonard No Comments

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

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

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

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

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

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

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

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

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

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

Posted on: September 1st, 2017 by Art Leonard No Comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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