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Posts Tagged ‘ACLU LGBT Rights Project’

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.

Trump Changes Policy on Military Service by Transgender Individuals

Posted on: August 27th, 2017 by Art Leonard No Comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted on: August 15th, 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 case moot.  Grimm v. Gloucester County School Board, 2017 U.S. App. LEXIS 14158.  The three-judge panel had tentatively scheduled an oral argument for September to consider yet again whether U.S. District Judge Robert G. Doumar erred when he dismissed Grimm’s Title IX sex discrimination claim against the Gloucester County School Board. The circuit panel speculated that its jurisdiction to decide the case may have been ended by Grimm’s graduation, but that it was not clear from the record before the court and the supplemental briefs filed by the parties earlier this summer whether this is so, and the court concluded that more fact-finding is necessary before the issue of its jurisdiction can be decided.

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

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

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

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

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

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

Supreme Court May Consider Whether Federal Law Already Outlaws Sexual Orientation Discrimination

Posted on: July 12th, 2017 by Art Leonard No Comments

Lambda Legal has announced that it will petition the Supreme Court to decide whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination because of sex, also bans discrimination because of sexual orientation. Lambda made the announcement on July 6, when the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, announced that the full circuit court would not reconsider a decision by a three-judge panel that had ruled on March 10 against such a claim in a lawsuit by Jameka K. Evans, a lesbian security guard who was suing Georgia Regional Hospital for sexual orientation discrimination.

The question whether Title VII can be interpreted to cover sexual orientation claims got a big boost several months ago when the full Chicago-based 7th Circuit ruled that a lesbian academic, Kimberly Hively, could sue an Indiana community college for sexual orientation discrimination under the federal sex discrimination law, overruling prior panel decisions from that circuit.  The 7th Circuit was the first federal appeals court to rule in favor of such coverage.  Lambda Legal represented Hively in her appeal to the 7th Circuit.

Title VII, adopted in 1964 as part of the federal Civil Rights Act, did not even include sex as a prohibited ground of discrimination in the bill that came to the floor of the House of Representatives for debate. The primary focus of the debate was race discrimination. But a Virginia representative, Howard Smith, an opponent of the bill, introduced a floor amendment to add sex.  The amendment was approved by an odd coalition of liberals and conservatives, the former out of a desire to advance employment rights for women, many of the later hoping that adding sex to the bill would make it too controversial to pass. However, the amended bill was passed by the House and sent to the Senate, where a lengthy filibuster delayed a floor vote for months before it passed without much discussion about the meaning of the inclusion of sex as a prohibited ground for employment discrimination.  (The sex amendment did not apply to other parts of the bill, and the employment discrimination title is the only part of the 1964 Act that outlaws sex discrimination.)

Within a few years both the Equal Employment Opportunity Commission and federal courts had issued decisions rejecting discrimination claims from LGBT plaintiffs, holding that Congress did not intend to address homosexuality or transsexualism (as it was then called) in this law. The judicial consensus against coverage did not start to break down until after the Supreme Court’s 1989 decision on Ann Hopkin’s sex discrimination lawsuit against Price Waterhouse.  The accounting firm had denied her partnership application.  The Court accepted her argument that sex stereotyping had infected the process, based on sexist comments by partners of the firm concerning her failure to conform to their image of a proper “lady partner.”

Within a few years, litigators began to persuade federal judges that discrimination claims by transgender plaintiffs also involved sex stereotyping. By definition a transgender person does not conform to stereotypes about their sex as identified at birth, and by now a near consensus has emerged among the federal courts of appeals that discrimination because of gender identity or expression is a form of sex discrimination under the stereotype theory.  The Equal Employment Opportunity Commission changed its position as well, following the lead of some of the court decisions, in 2012.

Advocates for gay plaintiffs also raised the stereotype theory, but with mixed success. Most federal circuit courts were unwilling to accept it unless the plaintiff could show that he or she was gender-nonconforming in some obvious way, such as effeminacy in men or masculinity (akin to the drill sergeant demeanor of Ann Hopkins) in women.  The courts generally rejected the argument that to have a homosexual or bisexual orientation was itself a violation of employer’s stereotypes about how men and women were supposed to act, and some circuit courts, including the New York-based 2nd Circuit, had ruled that if sexual orientation was the “real reason” for discrimination, a Title VII claim must fail, even if the plaintiff was gender nonconforming.  Within the past few years, however, several district court and the EEOC have accepted the stereotype argument and other arguments insisting that discrimination because of sexual orientation is always, as a practical matter, about the sex of the plaintiff.  This year, for the first time, a federal appeals court, the Chicago-based 7th Circuit, did so in the Hively case.  A split among the circuits about the interpretation of a federal statute is listed by the Supreme Court in its practice rules as the kind of case it is likely to accept for review.

The Supreme Court has been asked in the past to consider whether Title VII could be interpreted to cover sexual orientation and gender identity claims, but it has always rejected the invitation, leaving in place the lower court rulings.

However, last year the Court signaled its interest in the question whether sex discrimination, as such, includes gender identity discrimination, when it agreed to review a ruling by the Richmond-based 4th Circuit Court of Appeals, which held that the district court should not have dismissed a sex-discrimination claim by Gavin Grimm, a transgender high school student, under Title IX of the Education Amendments of 1972, which bans sex discrimination by schools that get federal money.  The 4th Circuit held in Grimm’s case that the district court should have deferred to an interpretation of the Title IX regulations by the Obama Administration’s Department of Education, which had decided to follow the lead of the EEOC and federal courts in Title VII cases and accept the sex stereotyping theory for gender identity discrimination claims. Shortly before the Supreme Court was scheduled to hear arguments in this case, however, the Trump Administration “withdrew” the Obama Administration interpretation, pulling the rug out from under the 4th Circuit’s decision.  The Supreme Court then canceled the argument and sent the case back to the 4th Circuit, where an argument has been scheduled for this fall on the question whether Title IX applies in the absence of such an executive branch interpretation.

Meanwhile, the Title VII issue has been percolating in many courts around the country. Here in New York, the 2nd Circuit Court of Appeals has had several recent panel decisions in which the judges have refused to allow sexual orientation discrimination claims because they are bound by earlier decisions of the court to reject them, although in some cases they have said that the gay plaintiff could maintain their Title VII case if they could show gender nonconforming behavior sufficient to evoke the stereotype theory. In one of these cases, the chief judge of the circuit wrote a concurring opinion, suggesting that it was time for the Circuit to reconsider the issue by the full court.  In another of these cases, Zarda v. Altitude Express, the court recently granted a petition for reconsideration by the full bench, appellants’ briefs and amicus briefs were filed late in June, and oral argument has been scheduled for September 26.  The EEOC as well as many LGBT rights and civil liberties organizations and the attorneys general of the three states in the circuit have filed amicus briefs, calling on the 2nd Circuit to follow the 7th Circuit’s lead on this issue.

This sets up an interesting dynamic between the 11th Circuit case, Evans, and the 2nd Circuit case, Zarda.  Lambda’s petition for certiorari (the technical term for seeking Supreme Court review) is due to be filed by 90 days after the denial of its rehearing petition by the 11th Circuit, which would put it early in October, shortly after the 2nd Circuit’s scheduled argument in Zarda.  After Lambda files its petition, the Respondent, Georgia Regional Hospital (perhaps, as a public hospital, represented by the state attorney general’s office), will have up to 30 days to file a response, but this is uncertain, since the hospital failed to send an attorney to argue against Evans’ appeal before the 11th Circuit panel.  Other interested parties who want the Supreme Court to take or reject this case may filed amicus briefs as well.  If Lambda uses all or virtually all of its 90 days to prepare and file its petition, the Supreme Court would most likely not announce whether it will take the case until late October or November.  If it takes the case, oral argument would most likely be held early in 2018, with an opinion expected by the end of the Court’s term in June.

That leaves the question whether the 2nd Circuit will move expeditiously to decide the Zarda case?  Legal observers generally believe that the 2nd Circuit is poised to change its position and follow the 7th Circuit in holding that sexual orientation claims can be litigated under Title VII, but the circuit judges might deem it prudent to hold up until the Supreme Court rules on the Evans petition and, if that petition is granted, the 2nd Circuit might decide to put off a ruling until after the Supreme Court rules.  In that case, there will be no change in the 2nd Circuit’s position until sometime in the spring of 2018, which would be bad news for litigants in the 2nd Circuit.  Indeed, some district judges in the Circuit are clearly champing at the bit to be able to decide sexual orientation discrimination claims under Title VII, and two veteran judges have bucked the circuit precedent recently, refusing to dismiss sexual orientation cases, arguing that the 2nd Circuit’s precedents are outmoded.  A few years ago the 2nd Circuit accepted the argument in a race discrimination case that an employer violated Title VII by discriminating against a person for engaging in a mixed-race relationship, and some judges see this as supporting the analogous argument that discriminating against somebody because they are attracted to a person of the same-sex is sex discrimination.

The 2nd Circuit has in the past moved to rule quickly on an LGBT issue in a somewhat similar situation.  In 2012, cases were moving up through the federal courts challenging the Defense of Marriage Act (DOMA), which had been held unconstitutional by several district courts.  A race to the Supreme Court was emerging between cases from Boston (1st Circuit), New York (2nd Circuit), and San Francisco (9th Circuit).  The Supreme Court received a petition to review the 1st Circuit case, where GLAD represented the plaintiffs.  The ACLU, whose case on behalf of Edith Windsor was pending before the 2nd Circuit, filed a petition with the Supreme Court seeking to leapfrog the district court and bring the issue directly up to the highest court.  After the ACLU filed its petition, the 2nd Circuit moved quickly to issue a decision, and the Supreme Court granted the petition.  Meanwhile, Lambda Legal, representing the plaintiff whose case was pending in the 9th Circuit, had filed its own petition asking the Supreme Court to grant review before the 9th Circuit decided that appeal.  It was all a bit messy, but ultimately the Court granted the ACLU’s petition and held the other petitions pending its ultimate decision, announced on June 26, 2013, declaring DOMA unconstitutional.  If the 2nd Circuit moves quickly, it might be able to turn out an opinion before the Supreme Court has announced whether it will review the Evans case, as it did in 2012 in the DOMA case (although that was just a panel decision, not a ruling by the full circuit bench.)  The timing might be just right for that.

Another concern, of course, is the composition of the Supreme Court bench when this issue is to be decided. At present, the five justices who made up the majority in the DOMA and marriage equality cases are still on the Court, but three of them, Justices Anthony Kennedy (who wrote those opinions), Ruth Bader Ginsburg, and Stephen Breyer, are the three oldest justices, and there have been rumors about Kennedy considering retirement.  Donald Trump’s first appointee to the Court, Neil Gorsuch, filling the seat previously occupied by arch-homophobe Antonin Scalia, immediately showed his own anti-LGBT colors with a disingenuous dissenting opinion issued on June 26 in a case from Arkansas involving birth certificates for the children of lesbian couples, and it seems likely that when or if Trump gets another appointment, he will appoint a person of similar views.  Kennedy, who turns 81 this month, has not made a retirement announcement and has hired a full roster of court clerks for the October 2017 Term, so it seems likely he intends to serve at least one more year.  There is no indication that Ginsburg, 84, or Breyer, 79 in August, plan to retire, but given the ages of all three justices, nothing is certain.

Nebraska Supreme Court Ends State’s Anti-LGBT Adoption/Foster Policies

Posted on: April 12th, 2017 by Art Leonard No Comments

The seven-member Nebraska Supreme Court has unanimously affirmed a decision by Lancaster County District Judge John A. Colborn that a formal published policy adopted by the state in 1995 banning adoptions or foster placements into any household with a “homosexual” in residence was unconstitutional, as was an informal policy adopted more recently by chief executive officers of the state’s Department of Health and Human Services under which “exceptions” could be made in particular cases by personal order of the department’s director.

Ruling on a case brought by the ACLU on behalf of some same-sex couples who sought to foster or adopt children but were either discouraged by Department staff members or deterred by the formal policy posted on the Department’s website, Stewart v. Heineman, 296 Neb. 262, the Supreme Court focused mainly on technical issues, as the state apparently conceded that there was no good reason to single out gay and lesbian adults for discriminatory treatment and sought to persuade the court that the case was “moot” and should be dismissed, preferably without awarding costs and fees to the plaintiffs. The trial judge awarded costs and fees totaling more than $175,000, an amount that will increase if fees are later awarded to the plaintiffs for successfully defending their victory in the state supreme court.

The lengthy opinion by Justice John F. Wright is devoted almost entirely to refuting ridiculous arguments mounted by the state to try to convince the court that it lacked jurisdiction to decide the case, rather than to repeating in any detail the evidence presented to the district court about the parenting abilities of lesbians and gay men and the wholesome, well-adjusted children they have raised when given the opportunity to do so.

The complaint the ACLU filed centered on Memo 1-95, an administrative memorandum written by the director of the Department of Social Services (which later became the Department of Health and Human Services) in 1995. The memo stated: “It is my decision that effective immediately, it is the policy of the Department of Social Services that children will not be placed in the homes of persons who identify themselves as homosexuals.  This policy also applies to the area of foster home licensure in that, effective immediately, no foster home license shall be issued to persons who identify themselves as homosexuals.”  The memo adopted a similar policy regarding “unmarried heterosexual couples.”  The memo “directed staff not to specifically ask about an individual’s sexual orientation or marital status beyond those inquiries already included in the licensing application and home study,” wrote Justice Wright.  “The stated reason for the policy was this State’s intent to place children in the most ‘family-like setting’ when out-of-home care is necessary,” Wright continued.  The memo contemplated that a formal regulation incorporating its policy decisions would be adopted, but this did not happen.

In fact, there is no formal statutory or regulatory ban on gay people being foster or adoptive parents in Nebraska, as such. Thus, the entire focus of the lawsuit and the court opinions was on the “policy” expressed in Memo 1-95 and subsequent “practices” adopted by the director of the department.

The Memo was posted on the Department’s website as a formal policy statement, and was not removed from the website until after this lawsuit began and motions for summary judgment had been filed with Judge Colborn. The Memo was used in training new staff members, and was referred to specifically by staff members when they discouraged one of the couples from formally applying to get a foster child, which is a prerequisite in Nebraska to legal adoption.

Part of the state’s defense in this case was that although Memo 1-95 continued to appear on the website, it was no longer the actual policy of the Department, as recent chief executive officers had determined that lesbian and gay applicants otherwise qualified to serve as foster or adoptive parents should be allowed to do so. However, this informal policy was not well publicized throughout the department, formal instructions were not issued at the line staff level, and no mechanism for appealing denials based on an applicant’s sexual orientation was created.

Under this “practice,” which was referred to throughout the opinion as the Pristow Procedure, after Thomas Pristow, director of the Division beginning in March 2012, if gay applicants were approved at the line staff level, the approval had to go through four layers of sign-offs, including by Pristow himself. No other potentially controversial placements, such as those with unmarried heterosexual parents or with former prison inmates, had to go through so many layers of approval, and only placements with “homosexuals” had to be personally approved by the director.

An earlier form of this policy “exception” was first adopted by Todd Reckling when he was director in June 2010, expressed in a letter to two gay men, Todd Vesely and Joel Busch, who had begun the process of qualifying to be foster and adoptive parents in 2008, completing the training program. Reckling wrote them that the division’s policy was to bar licensing unrelated adults living together, referring to Memo 1-95, but that the division’s policy “allows for an exception” under which one member of an unmarried couple might be licensed, but Reckling’s letter “gave no indication that such an exception would be made in their case” because, as Reckling explained, “second parent adoptions” were not permitted in Nebraska involving unmarried couples, and Todd and Joel could not marry because of Nebraska’s anti-gay marriage constitutional amendment.   Neither would their marriage be recognized if contracted out of state.

One of the state’s incredible arguments was that the plaintiffs did not have standing to bring the lawsuit because none of the couples had formally applied and been turned down. This was a nonsensical argument, since it was clear that any gay couple applying had to be rejected under the formal policy posted on the website and taught to staff members.  In reviewing the deposition testimony of the various directors of the division and other staff members, as well as their internal written communications, the court uncovered the entire history of developments within the department as this issue unfolded.  When pressed about why Memo 1-95 remained for so long on the website despite insistence by some of the witnesses that it was no longer the “practice” of the division, witnesses intimated that they wanted to prevent the possibility that a formal withdrawal of the memo would provoke the state legislature to pass an explicit ban on “homosexuals” serving as foster or adoptive parents, as had happened in some other states when the issue aroused public attention.

The defense witnesses struggled to define the difference between a “policy” and a “practice,” and to argue that because the complaint filed in this case only explicitly attacked 1-95 as a “policy,” the court should not consider whether the “practice” actually followed was constitutional. Of course, since the “practice” was never formally published, it turns out that the plaintiffs did not learn of it until after filing their complaint and conducting discovery.  The court turned aside formalistic objections to extending the lawsuit to consider the “practice,” and agreed with Judge Colborn that the “practice” as variously described in depositions and internal division communications was itself discriminatory.

The defense witnesses could advance no good reason why approval of gay people to be foster or adoptive parents should require five layers of approval culminating in personal approval by the CEO, a degree of internal scrutiny that was not demanded of any other class of applicants.

The court also rejected the defendants’ argument that the case was not “ripe” for decision because nobody had been turned down under the “practice”, now that the Memo has been removed from the website. Interestingly, however, the opinion does not mention any evidence that any gay foster or adoptive parents have actually been approved.  The defendants argued that none of the plaintiffs have yet incurred the injury of formally being denied, so it was premature for the court to rule on the merits.  But the court noted plentiful U.S. Supreme Court precedents adopting the view that a denial of equal treatment was itself an injury, even if it was in the form of an official policy that had deterred individuals from applying and thus had not resulted in any formal denials.

Approving the district court’s decision to issue an injunction against the “policy” and the “practice,” Justice Wright quoted from U.S. Supreme Court opinions, that the Court had “repeatedly emphasized” that “discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community, can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.”

As to the “ripeness” issue in the context of a “reverse-discrimination” attack on a governmental affirmative action contracting policy, the Supreme Court has said “that the plaintiffs seeking to prevent future deprivation of the equal opportunity to compete need only demonstrate they will ‘sometime in the relatively near future’ bid on a contracted governed by such race-based financial incentives.”

The court also rejected the state’s contention that the case was “moot” because Memo 1-95 had been removed from the website. The court noted that the Memo had not been formally withdrawn, since it was not included on a website list of withdrawn memoranda, presumably so as not to call the legislature’s attention to its withdrawal.

“If a discriminatory policy is openly declared,” wrote Wright, “then it is unnecessary for a plaintiff to demonstrate it is followed in order to obtain injunctive or declaratory relief. We thus find immaterial any dispute in the record as to whether the Pristow Procedure was a policy versus a practice, whether it ‘replaced’ Memo 1-95, or the level of confusion within DHHS and its contractors concerning DHHS’ policy and practice when this action was filed.  A secret change in policy or procedure cannot moot an action based on a published policy statement that has been cited by the agency as excluding the plaintiffs from eligibility.”

Furthermore, the court said that a party cannot “moot” a case “simply by ending its unlawful conduct once sued,” because if such “voluntary cessation” rendered the case “moot”, causing its dismissal, “a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.”

In the final section of his opinion, Justice Wright’s discussion intimated what this appeal is really all about. The state is not actually contesting Judge Colborn’s conclusion that the policy or practice is unconstitutional.  Rather, hoping to get the case dismissed as moot, the state wants to be in a position to argue that it should not have to pay court costs and attorney’s fees to the plaintiffs!  They argued that the trial court abused its discretion in awarding costs and fees, and should have declared the case moot and dismissed it when the state removed 1-95 from its website.  The court wasn’t falling for this sophistry, however.

The April 7 opinion is a total rejection of all the arguments the state raised on appeal, and a total endorsement of Judge Colborn’s summary judgment order of August 5, 2015, which ordered the defendants to “refrain from adopting or applying policies, procedures, or review processes that treat gay and lesbian individuals and couples differently from similarly situated heterosexual individuals and couples when evaluating foster care or adoption applications under the ‘best interests of the child’ standard set forth in DHHS’ regulations.” The district court issued an order on December 15, 2015, awarding $28,849.25 in costs and $145,111.30 in attorney fees.

Lead attorneys for the plaintiffs are Amy Miller of the ACLU of Nebraska, Leslie Cooper of the national ACLU’s LGBT Rights Project, and cooperating attorneys Garrard R. Beeney and W. Rudolph Kleysteuber of Sullivan & Cromwell LLP. Amicus briefs in support of plaintiffs were filed by Nebraska Appleseed Center for Law in the Public Interest and the Child Welfare League of America.

4th Circuit Revives Transgender Teen’s Title IX Claim Against Virginia School Board

Posted on: April 19th, 2016 by Art Leonard No Comments

A three-judge panel of the Richmond-based U.S. 4th Circuit Court of Appeals voted 2-1 on April 19 that U.S. District Judge Robert G. Doumar erred by not deferring to the U.S. Department of Education’s interpretation of its regulations to require schools to let transgender students use restrooms consistent with their gender identity.  Judge Doumar had dismissed a claim by G.G., a teenage transgender boy attending high school in Gloucester County, Virginia, that the school violated his statutory right under Title IX of the Education Amendments Act by adopting a rule that he could use only restrooms designated for girls or unisex single-user restrooms.  The court referred to the plaintiff by his initials throughout the opinion to guard his privacy, but the ACLU’s press releases about the case identify him as Gavin Grimm.  G.G. v. Gloucester County School Board, 2016 U.S. App. LEXIS 7026 (April 19, 2016).

The high school had accommodated G.G. when, at the beginning of his sophomore year in August 2014, he informed school officials that he was transitioning, had gotten a legal name change, and would be expressing his male gender identity, by letting him use the boys’ restroom. After several weeks without serious incident,  some parents alerted to the situation by their children objected and pushed the school board to adopt its resolution after two public meetings in which indignant parents threatened the board members with political retribution if they did not adopt the restrictive policy.  G.G., now 16, has not undergone reassignment surgery, which is not available to minors under the prevailing medical standards for treating gender dysphoria, but has transitioned in all other respects and identifies fully as male.

The 4th Circuit is the first federal appeals court to rule that the Education Department’s interpretation of Title IX, as expressed in an opinion letter by the Department’s Office of Civil Rights on January 7, 2015, in response to this controversy, should be followed by the federal courts.  Since North Carolina is also within the 4th Circuit, this ruling, as it now stands, suggests that the “bathroom” provisions of the notorious H.B. 2, at least as they apply to public educational institutions, violate federal law, as the ACLU and Lambda Legal have argued in a lawsuit challenging that statute pending in the U.S. District Court in North Carolina.

Writing for the majority of the panel, Circuit Judge Henry F. Floyd observed that the court’s role in a case involving an administrative agency’s interpretation of a statute is most deferential when the statute and the official regulations that have been adopted by the agency are ambiguous regarding the particular issue in dispute. Title IX says that educational institutions that receive federal funds may not discriminate because of sex.  The regulations, adopted decades ago, provide that educational institutions may designate separate facilities for use by males and females, so long as the facilities are equal in quality, but never directly address how to deal with transgender individuals whose “biological sex” differs from their gender identity.  In this respect, concluded a majority of the court, the regulations are “ambiguous.”  As such, the Department’s interpretation of the regulations should be deferred to by the court when they are a reasonable interpretation of the statute.  Indeed, wrote Floyd, the Department’s interpretation is entitled to deference “unless the [school] board demonstrates that the interpretation is plainly erroneous or inconsistent with the regulation or statute.”

District Judge Doumar had concluded that the regulations were not ambiguous, and refused to defer to the Department interpretation. Judge Floyd devoted a section of his opinion to explaining why the regulations are ambiguous.  “We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading – determining maleness or femaleness with reference exclusively to genitalia – and the Department’s interpretation – determining maleness or femaleness with reference to gender identity.”  When language can support alternative readings, there is ambiguity.  “The Department’s interpretation resolves the ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.”

Protesting against this conclusion, dissenting Circuit Judge Paul Niemeyer (who was, incidentally, also a dissenter in the 4th Circuit’s Virginia marriage equality decision in 2014), found that it would produce unacceptable results by violating the “physiological privacy interest” of students who did not want to share restroom facilities with students whose biological sex differed from theirs.  Judge Niemeyer essentially articulated, in more elevated terms, the arguments that North Carolina Governor Pat McCrory has been making in defense of the “bathroom” provisions in H.B. 2: that the privacy concerns of students who object to sharing facilities with transgender students should take priority over the interests of the transgender students.

But Judge Niemeyer doesn’t put it quite so crudely. Indeed, he suggests that the opinion letter from the Department authorized just what the school board did, by opining that schools could accommodate the needs of transgender students by providing unisex single-occupancy facilities for them to use.  Judge Floyd points out, however, that the Department’s advice was to provide such facilities for students who did not want to use multiple-use facilities.  In this case, G.G. wants to use the male-designated multiple-use facility as being congruent with his gender identity.  As to the privacy concerns, the court noted that the school board has made physical modifications in the boys’ restrooms by adding partitions between urinals and taping over visual gaps in the toilet stalls so as to enhance the privacy of all users.

Judge Floyd emphasized that because G.G. was only contesting the school board’s policy on restrooms, the court did not have to deal with the question whether other single-sex facilities, such as locker rooms and shower rooms, would have to be open to transgender students as well. Judge Niemeyer observed that discrimination “because of sex” had to mean the same thing throughout the statute and regulations, so he argued that the majority opinion opened up the door to allowing transgender students to claim a right of access to all such sex-designated facilities.

In a somewhat unintentionally humorous footnote, Judge Floyd noted the school board’s argument, reiterated in Judge Niemeyer’s dissent, that allowing biological males into the girls’ restrooms and biological females into the boys’ restrooms could produce “danger caused by ‘sexual responses prompted by students’ exposure to the private body parts of students of the other biological sex.’” Floyd observed, perhaps tongue in cheek, “The same safety concern would seem to require segregated restrooms for gay boys and girls who would, under the dissent’s formulation, present a safety risk because of the ‘sexual responses prompted’ by their exposure to the private body parts of other students of the same sex in sex-segregated restrooms.”  Yes!  Here is a federal judge with real empathy for hormone-infused teenagers of every sexual orientation and gender identity!

In addition to appealing Judge Doumar’s dismissal of his Title IX claim, G.G. was also appealing the Judge Doumar’s refusal to issue a preliminary injunction that would require the school board to let him use the boys’ restroom facilities while the case proceeded. Judge Doumar had refrained from ruling on G.G.’s constitutional equal protection claim, so his case was still alive before the district court even though his Title IX claim was dismissed.  Judge Doumar had focused his refusal of injunctive relief on his determination that G.G. failed to show that he would suffer irreparable harm if he was excluded from the boys’ restrooms while the case was pending.

The majority of the panel concluded that Doumar had wrongly refused to give appropriate consideration to the evidence presented by G.G. and his medical expert on this point, applying too strict a standard for considering evidence in the context of a motion for a preliminary injunction. The majority concluded that the appropriate step was to reverse the dismissal of the Title IX claim and send the case back to the district court for reconsideration of the motion for preliminary injunction, applying the correct evidentiary standard.  This means that G.G. will be back to square one before the district court, but with the wind of the court of appeals decision behind his back on key issues in the case.

G.G. had asked the court of appeals to reassign the case to another district judge. Judge Doumar made various comments in court that suggested bias, or at least a refusal to believe in the validity of the concept of gender identity, with references to G.G. as a girl who wanted to be a boy.  However, Judge Floyd pointed out, none of that objectionable language appeared in the written opinion that Judge Doumar released to explain his ruling, and the court was not going to conclude at this point that Doumar would not give appropriate consideration to the evidence when called upon by the court of appeals to reconsider his ruling, so the court denied G.G.’s request and the case will return to Judge Doumar.

The third member of the panel, Senior Circuit Judge Andre M. Davis, agreed with Judge Floyd that the Title IX claim should be revived, but would have gone further, contending that G.G. had satisfied the requirements for a preliminary injunction. However, since the grant of such an injunction is a matter within the discretion of the trial judge, he ultimately agreed to “defer to the district court in this instance.  It is to be hoped,” he continued, “that the district court will turn its attention to this matter with the urgency the case poses.  Under the circumstances here, the appropriateness and necessity of such prompt action is plain.  By the time the district court issues its decision, G.G. will have suffered the psychological harm the injunction sought to prevent for an entire school year.”

Judge Niemeyer’s dissent, reminiscent of his dissent in the Virginia marriage equality case, harps on the “unprecedented” nature of the ruling, asserting that the court’s “holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect.” He also accused the majority of misconstruing the language of Title IX and its regulations, and concluded that “it reaches an unworkable and illogical result.”

G.G. is represented by the ACLU of Virginia and the ACLU’s national LGBT rights project. Joshua Block argued the appeal on his behalf on January 27.

North Carolina H.B. 2 Draws ACLU/Lambda Lawsuit and Numerous Protest Actions

Posted on: March 31st, 2016 by Art Leonard No Comments

 

Within days of Governor Pat McCrory, a Republican, signing into law H.B. 2, an “emergency measure” that passed with unanimous support of the Republicans in the North Carolina legislature to restrict public restroom access for transgender people and preempt localities from legislating on LGBT rights, the ACLU’s national LGBT Rights Project and its North Carolina affiliate in collaboration with the Atlanta office of Lambda Legal filed a lawsuit in the U.S. District Court for the Middle District of North Carolina, attacking the constitutionality of the measure. %Caracano v. McCrory%, No. 1:16-cv-236 (filed March 28, 2016).  The case was assigned to District Judge Thomas D. Schroeder.  North Carolina’s attorney general, Roy Cooper III, one of the named defendants in his official capacity, soon announced that he agreed with the plaintiffs that H.B. 2 was unconstitutional and so his office would not defend it.  Cooper is planning to run for governor against McCrory.

Social and political fallout responding to the new statute was swift. Governors from three states and mayors from several major cities had banned official travel by their employees to North Carolina within a week after the bill was signed, scores of corporate executives, including many from the state’s largest employers, signed letters to the governor deploring the measure, and talk had begun about professional sports leagues possibly shifting championship games out of the state.  Particular attention was focused on a large furniture trade fair held annually in North Carolina, organized by a gay couple, with the organizers reporting that many of the usual participants had indicated that they would not come this year due to passage of the law.  Efforts to put pressure on the state legislature through a tourism and business boycott were soon well under way. Governor McCrory dug in his heels, claiming that the law was not “discriminatory” and was intended to protect the private of public restroom users, charging that Attorney General Cooper’s announced refusal to defend the measure was a violation of his oath of office, a point that Cooper hotly disputed.  McCrory’s position was quickly undermined as Governor Nathan Deal, a fellow Republican, vetoed an anti-gay “religious freedom” measure in Georgia just days later, to be followed shortly by Virginia Governor Terry McAuliffe.

Passage of H.B. 2 was provoked by a majority vote of the Charlotte City Council to add sexual orientation and gender identity to its local civil rights ordinance effective April 1, over protests by opponents that this would allow men pretending to be women to invade women’s restroom facilities, thus violating the privacy of their female users and posing a danger of sexual assaults. The claim was bizarre on its face, since scores of municipalities and counties, and many states, have banned gender identity discrimination in places of public accommodation, some for a decade or more, without any such incidents being reported.  Furthermore, somebody identified as male at birth but asserting a female gender identity would not likely attempt to use a woman’s restroom or locker room facility if they were not expressing their gender identity as female through dress and grooming and taking female hormones through a prescription written by a doctor who has diagnosed gender dysphoria, and such is the experience under such laws in other jurisdictions.  But Governor McCrory, running for re-election and seeking to energize his conservative (and presumably transphobic) base, had warned even before the Council voted that passage of the measure in the city where he had previously served as mayor would require a response from the state government.  Although McCrory did not call for the special session, which was initiated by Republican leaders in both houses, he signed the resulting bill with alacrity, probably setting speed records for a controversial measure being introduced, passing both houses, and being signed into law in a single legislative day.  Some state legislators protested that they did not even receive the text of the bill prior to the day’s floor debates.

Although the “provocation” focused on restrooms, the legislative response ran far beyond a simple overturning of the gender identity provision of the local ordinance as it pertains to public accommodations or more narrowly to specific kinds of facilities. Instead, the legislature affirmatively enacted a %requirement% that the public schools and other government facilities throughout the state restrict access to any “multiple occupancy bathroom or changing facility” by designating each such facility as being for the exclusive use of males or females and providing that only persons identified on their birth certificates as male could use male-designated facilities and analogously  for women.  Since North Carolina requires proof of sex reassignment surgery before issuing new birth certificates to applicants seeking a change to reflect their gender identity, and many transgender people don’t undergo complete reassignment surgery for a variety of reasons, including the expense of a procedure not covered by their health insurance, many transgender people would be left in effect without ready access to appropriate restroom facilities.  Use of facilities consistent with their birth certificates could subject them to violent reactions, especially noting the gun culture of southern states like North Carolina.  (Imagine the danger to a transgender man coming into a female-designated restroom occupied by women with pistols!)  The legislature apparently gave no thought to how its restroom restrictions would be enforced in practice, an issue not addressed in the statute.  Indeed, the statute directs its mandate to “local boards of education” and government “agencies” to “establish” single-sex facilities and restrict their use, but does not explicitly impose penalties for failure to do so, and says nothing specifically about penalties, if any, imposed on persons apprehended using the “wrong” restrooms.  We are waiting for somebody to confront Gov. McCrory in a men’s restroom in the state capitol to demand that he prove his “biological sex,” presumably by exposing his penis to inspection.  But we digress. . . .

The legislature went even further. Not contenting itself with addressing the “bathroom” issue, it also passed a provision preempting local governments from forbidding discrimination in employment and public accommodations by declaring such issues as properly reserved to statewide resolution.  Just to drive the point home and to avoid arguments about broadly defining bans on sex discrimination, the preempting statute bans discrimination on the basis of “biological sex,” which is defined according to the individual’s sex as designated on their birth certificate.  The measure also eschews creating any private right of action for discrimination in employment or public accommodations, instead limiting enforcement to complaints to the Human Relations Commission, which is authorized to “investigate and conciliate” but not to legislate, the goal being to resolve all complaints from “amicable resolution.”  This effectively preempted and wiped out all local civil rights laws, and because of the limited list of categories covered in H.B. 2, incidentally eliminated some local protections for veterans.  While they were at it, the legislators threw into the bill a totally unrelated prohibition on local governments legislating on public contracting, wages and hours, child labor, and other subjects dealt with by the state’s wage and hours law, including prohibiting localities from establishing a minimum wage higher than the state’s rather low minimum.  The thread tying these provisions together was a purported bid for “statewide consistency” in employment regulation, contracting, and anti-discrimination policies, the “theory” being that allowing localities to legislate would make life too difficult for businesses and confusing for everybody else.

The lawsuit was brought in the name of two state university employees, Joaquin Carcano (a transgender man at UNC Chapel Hill) and Angela Gilmore (a lesbian at Northern Carolina Central University Law School) and a current student, Payton Grey McGarry (a transgender man at UNC Greensboro), as well as the ACLU of North Carolina (a legal membership organization) and Equality North Carolina (a political membership organization). The named defendants are Governor Patrick McCrory, Attorney General Roy Cooper III, the University of North Carolina and its Board of Governors, and the UNC Board’s chair, W. Louis Bissette, Jr.

The complaint proceeds along several lines, constitutional and statutory. The constitutional claim was that H.B. 2 violates the 14th Amendment’s Due Process and Equal Protection Clauses, by imposing harms on transgender and lesbian/gay/bisexual residents of the state without sufficient justification to meet constitutional requirements.  The complaint asserts that heightened scrutiny judicial review applies to these sorts of discrimination, a point not yet expressly embraced by the Supreme Court but starting to make its way in the lower federal courts.  (For example, the 11th Circuit, in %Glenn v. Brumby%, 663 F.3d 1312 (2011), found that gender identity discrimination by a public employer was sex discrimination subject to heightened scrutiny.  The Obama Administration argued in the %Windsor% case that sexual orientation discrimination was subject to heightened scrutiny, a point embraced by the 2nd Circuit in that litigation.)  The Due Process Clause claim includes a privacy claim, arguing that the bathroom restrictions will require transgender people to “out” themselves, thus exposing themselves to danger, and that in light of the state’s demanding criteria for issuing new birth certificates, in effect dictating to transgender people that they must undergo surgical procedures to attain equal access to appropriate public facilities for their gender, another imposition upon individual choice and autonomy.  The complaint also asserts violations of Title IX of the federal Education Act Amendments, which forbid sex discrimination by educational institutions that get federal money.  This relies on recent decisions by the U.S. Department of Education that this provision requires educational institutions to allow transgender people to access restroom and locker room facilities consistent with their gender identity.

The complaint also attacks the preemption of local laws protective of LGBT rights, summoning an argument based on the Supreme Court’s 1996 decision in %Romer v. Evans%, which struck down a Colorado constitutional amendment prohibiting the state or its political subdivisions from outlawing anti-gay discrimination.  Unlike the Colorado amendment, H.B. 2 does not single out LGBT people for exclusion from protection on its face, excluding them instead by %not% mentioning them sexual orientation or gender identity as prohibited grounds of discrimination and preempting local governments from legislating on discrimination.  But the rationale of %Romer% seems to apply, in that the measure was adopted for the proclaimed purpose of excluding LGBT people from the protections afforded to other groups that suffer discrimination, with no rational basis articulated other than a desire to exclude.  Another argument that seems relevant here would be derived from the U.S. Supreme Court’s ruling in %U.S. v. Windsor% striking down Section 3 of the Defense of Marriage Act.  The government sought to defend the refusal to recognize same-sex marriages contracted under state law by advancing the need for a national unified definition of marriage for purposes of federal rights and programs, similar to North Carolina’s argument for “statewide consistency” in anti-discrimination law.  The Supreme Court did not even find that justification significant enough to dignify it with discussion.

Since Title VII of the Civil Rights Act of 1964, which bans sex discrimination in employment, applies to state and local government workplaces, the restroom provisions likely violate Title VII consistent with the views of the EEOC, as expressed in %Lusardi v. McHugh%, Appeal No. 0120133395, 2015 WL 1607756 (EEOC, April 1, 2015, holding that the Department of the Army violated Title VII by refusing by restricting restroom access of a transgender civilian employee.  Title VII claims must be filed initially with the EEOC or designated state civil rights agencies, subject to an “exhaustion of administrative remedies requirement,” before they can be brought in federal court, so no Title VII claim was asserted in this challenge to H.B. 2.  However, it is possible that transgender state and local government employees will file such complaints, generating additional litigation as the %Carcano% case works its way through the federal courts. EEOC is busy litigating, directly and through amicus briefs in private litigation, to establish its position on the interpretation of “sex” under Title VII in non-federal employment cases in the courts, and a private “bathroom” case under Title IX is pending before the 4th Circuit Court of Appeals, %G.G. v. Gloucester County School Board%, 2015 U.S. Dist. LEXIS 124905, 2015 WL 5560190 (E.D. Va. September 17, 2015). (Federal courts generally consider Title VII sex discrimination and Title IX cases under the same doctrinal rubric and freely refer to court decisions under both statutes.)  Indeed, the %G.G.% appeal has been argued before a circuit panel and a ruling is imminent. Such a ruling would be direct binding precedent on the district court in the case challenging H.B. 2.

The legal team representing plaintiffs includes Christopher A. Brook for the North Carolina Legal Foundation of the ACLU, Elizabeth O. Gill and Chase B. Strangio of the ACLU’s national LGBT Rights Project, and Tara L. Borelli, Peter C. Renn, and Kyle A. Palazzolo of Lambda Legal’s Atlanta office.

[Government officials from other states taking official action to ban state-funded employee trips to North Carolina included New York Governor Andrew Cuomo (Executive Order No. 155), New York City Mayor Bill DeBlasio, Vermont Governor Peter Shumlin, Washington State Governor Jay Inslee, Seattle Mayor Edward Murray (Executive Order 2016-03), San Francisco Mayor Ed Lee, and Chicago Mayor Rahm Emanuel.]

Federal Court Explains Pretrial Motion Rulings Against Transgender Student in Restroom Lawsuit

Posted on: September 26th, 2015 by Art Leonard No Comments

U.S. District Judge Robert G. Doumar issued an opinion on September 17 in G. G. v. Gloucester County School Board, 2015 U.S. Dist. LEXIS 124905, 2015 WL 5560190 (E.D. Va.), explaining his earlier bench decision in July dismissing the plaintiff’s Title IX count and his September 4 denial of the plaintiff’s request for a preliminary injunction in a dispute over restroom usage at the Gloucester, Virginia, High School. The plaintiff, a transgender boy, is being denied use of the restrooms designated for boys at the school. Judge Doumar found that Title IX does not require public schools to allow transgender students to use the restrooms that conform to their gender identity, so long as they are provided with “comparable” restroom facilities, and that the plaintiff had not presented evidence sufficient to support his request to be allowed to use the boys’ restrooms pending a final ruling on the merits of his constitutional equal protection claim.

According to G.G.’s complaint, although designated female at birth he began to feel like a boy at “a very young age.” By age 12, he had acknowledged his male identity to himself and by the time he was a high school freshman “most of his friends were aware that he identified as male” and “away from home and school, G.G. presented himself as male.” During his freshman year, starting in September 2013, he experienced “severe depression and anxiety related to the stress of concealing his gender identity from his family.” He alleges that this led him to avoid school during the spring semester and to take classes “through a home-bound program.” In April of that 2014 spring semester, he finally told his parents that he was a transgender male and at his request began to see a psychologist, who diagnosed him with gender dysphoria. The psychologist recommended that G.G. “begin living in accordance with his male gender identity in all respects” including restroom usage, and gave him a “Treatment Documentation Letter” confirming the diagnosis and these directions, stating that he was under treatment. The psychologist also recommended that he begin hormone treatment. In July 2014, G.G. petitioned the local court for a legal name change, which was granted, and G.G. requested that his friends and family use his new name and refer to him using male pronouns. In public settings, G.G. began using restrooms designated for males.

In August 2014, prior to the beginning of fall semester, G.G. and his mother notified officials at Gloucester High School about his gender dysphoria and his name change. The high school officials were very accommodating, agreeing to change school records to record his new name. G.G. and his mother met with the principal and guidance counselor to discuss his transition. They allowed him to notify all his teachers about his preferences. “Being unsure how students would react to his transition,” wrote Doumar, “G.G. initially agreed to use a separate bathroom in the nurse’s office” and he was allowed to fulfill his physical education requirement through the home school program to avoid use of a locker room at school. But after the semester began G.G. “found it stigmatizing to use a separate restroom” and requested permission to use the male restrooms, which was granted by the principal. G.G. used the male restrooms for seven weeks, during which the School Board received protests from parents on behalf of their sons about G.G.’s use of the male restrooms.

A member of the School Board introduced a resolution that would limit use of restroom facilities to “the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.” A majority of speakers at the November School Board meeting supported the resolution, contending that G.G.’s use of a male restroom violated the privacy rights of male students and might “lead to sexual assault in the bathrooms.” At least one parent suggested that a non-transgender boy could come to school wearing a dress and demand to use the girl’s restroom based on the precedent of letting G.G. use the men’s room. G.G. testified, speaking against the proposed resolution and “outing” himself to the entire community as transgender. The School Board voted 4-3 to defer a vote on the resolution to its next meeting, but prior to that meeting issued a news release indicating that steps were being taken to increase the privacy of all students by modifying the restrooms to expand partitions between urinals in the male restrooms and “adding privacy strips to the doors of stalls in all restrooms.” In addition, the school designated three single-stall unisex restrooms, “similar to what’s in many other public spaces.” At its December 9 meeting, the Board approved the resolution restricting restroom use by a vote of 6-1. The next day, the principal instructed G.G. not to use the boys’ restroom, threatening him with discipline if he violated the rule. He was allowed only to use the restroom in the nurse’s office, the girls’ restrooms, and the newly-designated unisex restrooms.

G.G. began receiving hormone treatments shortly after that School Board meeting, deepening his voice, increasing his facial hair and giving him a “more masculine appearance.” He claimed that as he was presenting as male, he was unwelcome on the girls’ restrooms; and that girls had actually asked him to leave when he tried to use those restrooms before this controversy arose. He also alleged that the unisex restrooms were not convenient to the rooms where his classes met,=, and that using them would be stigmatizing to him, causing psychological damage.

On June 11, 2015, G.G. filed suit alleging a violation of Title IX’s ban on sex discrimination in public schools and the equal protection clause, and requested a preliminary injunction to allow him to use the boys’ restrooms pending a final ruling on the merits of his claim. The School Board moved to dismiss the case. The U.S. Justice Department filed a statement of interest in the case, arguing that the Board’s resolution violated Title IX. The court heard initial arguments on the motions on July 27, and promptly dismissed the Title IX claim. In a subsequent hearing on September 4, the court denied the motion for preliminary injunction, promising to issue an explanatory opinion for both rulings at a later date.

Turning first to the Title IX claim, the court found that an existing Title IX regulation appeared to authorize the School Board’s restroom use policy. 34 C.F.R. Sec. 106.33 “expressly allows schools to provide separate bathroom facilities based upon sex, so long as the bathrooms are comparable,” Judge Doumar wrote, and he found that the regulation is not “arbitrary, capricious, or manifestly contrary to the statute.” Rather, he found, it “seems to effectuate Title IX’s provision allowing separate living facilities based on sex,” so he gave it controlling weight. Rejecting G.G.’s argument that Title IX should be construed to prohibit only gender identity discrimination as such, he said, “under any fair reading, ‘sex’ in Section 106.33 clearly includes biological sex. Because the School Board’s policy of providing separate bathrooms on the basis of biological sex is permissible under the regulation, the Court need not decide whether ‘sex’ in Section 106.33 also includes ‘gender identity’.” Judge Doumar found that G.G. had not alleged that the unisex facilities or the nurse’s restroom failed to satisfy the requirement of “comparable facilities” under the regulation, so no Title IX claim was stated.

The court had to deal as well with the Justice Department’s argument that the court should defer to a more recent interpretation by the Department of Education, which was issued in a January 7, 2015 “Guidance Letter” stating that students should be allowed to use restroom facilities consistent with their gender identity, which itself was based on an interpretive bulletin issued by DOE in December 2014. “The Department of Education’s interpretation does not stand up to scrutiny,” wrote the judge. “Unlike regulations, interpretations in opinion letters, policy statements, agency manuals, and enforcement guidelines do not warrant” the deference that courts normally pay to agency regulations that are adopted under statutes pursuant to the Administrative Procedure Act through a process of publication, public comment and, sometimes, public hearings before final official publication.

“An agency’s interpretation of its own regulation, even one contained in an opinion letter or a guidance document, is given controlling weight if (1) the regulation is ambiguous and (2) the interpretation is not plainly erroneous or inconsistent with the regulation,” wrote Judge Doumar. Using this standard, he concluded that the recent guidance letter did not stand up, because “even under the most liberal reading, ‘on the basis of sex’ in Section 106.33 means both ‘on the basis of gender’ and ‘on the basis of biological sex,’” so the school was authorized to segregate restrooms based on the biological sex of students. “To defer to the Department of Education’s newfound interpretation would be nothing less than to allow the Department of Education to ‘create de facto a new regulation’ through the use of a mere letter and guidance document,” he continued. “If the Department of Education wishes to amend its regulation, it is of course entitled to do so. However, it must go through notice and comment rulemaking, as required by the Administrative Procedure Act.”

Turning to the motion for preliminary injunction, the court found that G.G. failed to meet the most important test: to show that he was likely to prevail on the merits. Unlike the motion to dismiss the Title IX claim, as to which the court had to accept as true all of G.G.’s factual allegations, on the motion for preliminary injunction Judge Doumar said that G.G. had to submit evidence tending to prove his allegations, and as to this he had fallen short, merely repeating the allegations of the complaint and failing to flesh them out with the kind of factual details that would show he was likely to win on his equal protection claim. Among other things, Judge Doumar faulted G.G. for failing to present an affidavit from the psychologist who had diagnosed his gender dysphoria. The judge pointed out that the expert psychological evidence submitted with the motion was by another psychologist apparently hired for purposes of the litigation who had only met briefly with G.G. once, and whose testimony was generalized and not specific to G.G. Thus, there was no evidence beyond G.G.’s own assertions that being banned from using the boys’ restrooms was psychologically harmful to G.G. G.G. also failed to provide factual evidence to demonstrate his contention that the unisex restrooms were so inconveniently located as to present a hardship. He claimed that because of the proximity problem he had to hold his urine and suffered urinary infections, but offered no medical testimony to support this claim.

Most importantly, however, Judge Doumar accepted the School Board’s argument that allowing G.G. to use the boys’ restrooms would intrude on the constitutional privacy rights of male students. He observed that courts have generally found that individuals have a constitutional right of privacy with regard to exposure of their bodies to the opposite sex. The underlying, albeit unspoken, aspect of this analysis was that the complaining boys regard G.G. as a girl and object to a girl being present and observing them in the boys’ room. The court cited a recent decision by a federal court in Pittsburgh, rejecting a transgender man’s restroom suit against the University of Pittsburgh, and observed that the privacy concerns are even greater in the context of high school students. To the court, when the clash is between the constitutional right of privacy of the male students and the alleged psychological harm to G.G. of having to use a unisex restroom, the balance clearly favored the other male students, at least for purposes of preliminary relief pending trial. Doumar emphasized that G.G. was raising a “novel” claim, that it was unclear that he could prevail on the merits, and that he had presented no factual evidence on the issue of any irreparable injury that he might suffer if denied the use of the boys’ restrooms while this case proceeds on his equal protection claim.

G.G. is represented by attorneys from the ACLU of Virginia and the ACLU’s national LGBT Rights Project, who might seek to appeal these rulings to the 4th Circuit Court of Appeals. Although the 4th Circuit was traditionally a very conservative bench, President Obama’s appointments have turned it around, resulting in the circuit’s Virginia marriage equality decision in 2014, followed by a refusal to stay that opinion pending appeal. Thus, it is hard to predict how the 4th Circuit might react in light of the Justice Department’s intervention on behalf of G.G. in this case, but an appeal might not be hopeless.

Federal Judge Enjoins Nebraska Ban on Same-Sex Marriage; 8th Circuit Stays Pending Appeal

Posted on: March 2nd, 2015 by Art Leonard No Comments

Finding that Nebraska’s constitutional amendment banning same-sex marriages violates the 14th Amendment’s Equal Protection Clause, Senior U.S. District Judge Joseph F. Bataillon granted a motion by seven same-sex couples to issue a preliminary injunction against its enforcement.  [The case is Waters v. Ricketts, 2015 WL 852603, 2015 U.S. Dist. LEXIS 25869 (D. Neb., March 2, 2015).] While denying the state’s request to stay his order pending appeal, Judge Bataillon agreed to delay his ruling taking effect until 8 am on March 9 to give the state a chance to ask the 8th Circuit Court of Appeals for a stay.  Nebraska Attorney General Doug Peterson filed a notice of appeal with the 8th Circuit shortly after the ruling was announced, indicating that the defendants (who include as well Governor Pete Ricketts, two cabinet members and a county clerk) would be asking the circuit court to issue a stay before March 9.  The 8th Circuit responded on March 5, granting the stay without explanation.

It had seemed likely that the 8th Circuit would grant the state’s request.  Appeals of marriage equality rulings from South Dakota, Missouri and Arkansas are now pending before the 8th Circuit, which set an expedited briefing schedule and will hear arguments on May 12.  The district courts in those cases all stayed their rulings pending appeal.  Unlike the 11th Circuit, which has announced that it will take no action on pending appeals of marriage equality rulings by Florida and Alabama until after the Supreme Court rules on the plaintiffs’ appeals of the adverse ruling by the 6th Circuit affecting the states of Michigan, Ohio, Kentucky and Tennessee, the 8th Circuit appears poised to move ahead on the marriage issue.  Recently, that court rejected a request by counsel for the Missouri plaintiffs to lift the Missouri district court’s stay.  In its March 5 Order, the court added the Nebraska case to the May 12 argument, setting a very tight briefing schedule for the parties.

Judge Bataillon, a former public defender who was appointed to the district court by President Bill Clinton in 1997 and took senior status in 2014, has a history with the marriage issue.  He was the trial judge a decade ago when gay Nebraskans challenged the constitutionality of the state’s initiative marriage amendment the first time around, and he then ruled that it was unconstitutional, only to be rebuffed by the 8th Circuit in 2006, in a case titled Citizens for Equal Protection v. Bruning.  The plaintiffs in that case were not claiming a constitutional right to marry under the 14th Amendment, however.  Instead, they were challenging the idea that the people of Nebraska could amend their constitution specifically to prevent gay Nebraskans from seeking the right to marry through the ordinary political process of lobbying the legislature.  They argued that this improperly excluded gay people from participation in the ordinary political process.  The 8th Circuit, rejecting this argument, took note of the limited scope of their claim.   That has persuaded district judges in Missouri, Arkansas and South Dakota that the 2006 ruling did not prevent them from addressing the 14th Amendment right to marry claim presented in the new marriage equality lawsuits filed after the Supreme Court’s 2013 ruling in U.S. v. Windsor.

Bataillon took the same view, and also joined with the dozens of district courts and four federal circuit courts that have rejected the argument that a 35-year-old refusal by the Supreme Court to review a marriage equality case from Minnesota, Baker v. Nelson, would now block a lower federal court from ruling for the plaintiffs on this issue.

Some recent marriage equality rulings have been grounded in the theory of a fundamental right to marry protected as a liberty interest by the Due Process Clause.  Others have preferred to base their holding on the Equal Protection Clause, finding that the exclusion of same-sex couples is a form of unjustified discrimination, either based on sexual orientation, sex, or both.  Bataillon preferred the equal protection route, although his opinion also discussed the due process argument.

Because he was deciding a motion for a preliminary injunction rather than issuing a final ruling on the merits, the judge’s discussion of the constitutional issues was focused on predicting what an eventual ruling on the merits might be.  At this stage, the burden on the plaintiffs was to persuade him that they are likely to prevail when he makes a final ruling on the merits in response to a summary judgment motion.  As to that, a simple process of counting decisions by other courts pro or con would easily suffice to meet the burden.  Bataillon pointed out that the Supreme Court in U.S. v. Windsor (2013), striking down part of the federal Defense of Marriage Act, subsequent rulings by four U.S. Circuit Courts of Appeals, and the overwhelming majority of dozens of federal district court opinions, have all rejected the justifications that states have advanced for refusing to allow same sex couples to marry and refusing to recognize their out of state marriages.  Stacked up against that, a mere handful of federal trial judges and one court of appeals (by a divided vote) have rejected plaintiffs’ claims. For purposes of prediction, that is sufficient to hold for the plaintiffs.

The court easily found that the other prerequisites for preliminary injunction relief were met, finding that the harms to plaintiffs massively outweigh potential harms to the state of ordering it to cease enforcing its ban.

Judge Bataillon drew heavily on the forceful marriage equality opinion by Judge Richard Posner of the 7th Circuit Court of Appeals in Baskin v. Bogan, which had focused particularly on the harms to children imposed by denying same-sex couples the right to marry.  “In Baskin,” he wrote, “the Seventh Circuit rejected the rationale that same-sex couples and their children do not need marriage because same-sex couples cannot produce children, whether intended or unintended, as an argument ‘so full of holes that it cannot be taken seriously.'”  He continued, “The Seventh Circuit found prohibitions on same-sex adoption particularly troubling.  The refusal to allow same-sex couples to adopt ‘harms the children, by telling them they don’t have two parents, like other children, and harms the parent who is not the adoptive parent by depriving him or her of the legal status of a parent.'”

“An asserted preference for opposite sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation,” wrote Bataillon.  Furthermore, he embraced the view, previously adopted by a minority of the district court judges and by one concurring judge in the 9th Circuit, that the ban on same-sex marriage is a form of sex discrimination, meriting heightened scrutiny, without any need to find that sexual orientation discrimination claims also merit heightened scrutiny.  “Under existing precedent,” he wrote, “Nebraska’s same-sex marriage ban is at least deserving of heightened scrutiny because the challenged amendment proceeds ‘along suspect lines,’ as either gender-based or gender-stereotype-based discrimination.  The court finds it unnecessary, in light of this conclusion, to address the issue of whether the fundamental right to marry extends to same-sex relationships.”

In support of its argument that the same-sex marriage ban serves a legitimate state interest, Nebraska relied upon several widely-discredited “studies,” including two articles published by University of Texas Professor Mark Regnerus, disparaging the parenting skills of same-sex couples.  Bataillon dispatched them in a footnote, observing that the federal district court in Michigan found them to be “unbelievable and not worthy of consideration,” characterizing them as a “fringe viewpoint that is rejected by the vast majority of [the studies’ authors’] colleagues across a variety of social science fields.”  Why are state attorneys general continuing to cite such unreliable and vigorously disparaged publications? Aren’t they embarrassed to do so?

In common with many of the other district judges who have ruled on this issue over the past year and a half, Judge Bataillon rose to a vigorously stated conclusion.  “Nebraska’s ‘Defense of Marriage’ Constitutional Amendment, Section 29, is an unabashedly gender-specific infringement of the equal rights of its citizens,” he wrote.  “The State primarily offers as its rational basis for this gender-specific discrimination the encouragement of biological family units.  The essence of this rationale has been rejected by most courts and by no less than the Supreme Court [in Windsor].  With the advent of modern science and modern adoption laws, same sex couples can and do responsibly raise children.  Unfortunately, this law inhibits their commendable efforts.  For the majority of married couples, those without children in the home, marriage is a legal and emotional commitment to the welfare of their partner.  The State clearly has the right to encourage couples to marry and provide support for one another.  However, those laws must be enforced equally and without respect to gender.  It is time to bring this unequal provision to an end.”

The plaintiffs are represented by the ACLU of Nebraska Foundation and the ACLU Foundation’s Lesbian and Gay Rights Project, with Omaha divorce attorneys Susan Koenig and Angela Dunn as local counsel.  The ACLU attorneys working on the case include Amy Miller of the Nebraska affiliate, and Leslie Cooper and Joshua Block with the national organization.

4th Circuit Votes to Strike Down Virginia’s Ban on Same-Sex Marriages

Posted on: July 28th, 2014 by Art Leonard 1 Comment

A three-judge panel of the U.S. Court of Appeals for the 4th Circuit voted 2-1 to declare Virginia’s ban on same-sex marriage unconstitutional.  The opinion for the court issued on July 28 in Bostic v. Schaefer, 2014 U.S. App. LEXIS 14298, 2014 WL 3702493, did not go into immediate effect.  The court’s rules give the defendants up to two weeks to file a motion for rehearing or en banc review, or to file a notice to all parties that they are seeking review in the Supreme Court.  If the defendants don’t take any of those steps, the mandate must be issued within seven days, so the earliest date this ruling would go into effect would most likely be August 18.  However, since the two county court clerks who are the appellants are represented by Alliance Defending Freedom, a right-wing litigation group strongly dedicated to opposing same-sex marriage, it seems likely that a motion for en banc review or a petition to the Supreme Court will be filed, which would stay the ruling until the Supreme Court disposes of the case.

The circuit court’s decision will dictate the result of pending litigation in North and South Carolina and West Virginia, where pending cases have been “on hold” while the district judges waited to see what the 4th Circuit would do.  Those district judges might decide to wait to see whether there is further review before issuing their rulings, however.  One state in the 4th Circuit, Maryland, already has marriage equality as a result of state legislation ratified by the voters in 2012.

The consolidated cases decided by the 4th Circuit, Bostic v. Schaefer and Harris v. Rainey, took a circuitous route to get to the appeals court.  After the Supreme Court issued its decision on June 26, 2013, striking down Section 3 of the Defense of Marriage Act, the ACLU’s LGBT Rights Project announced that it was seeking plaintiffs for a lawsuit to challenge Virginia’s marriage ban, which is contained in statutes and a constitutional amendment.  While the ACLU was preparing its case, to be filed in the U.S. District Court for the Western District of Virginia, a same-sex couple in Norfolk, which is in the Eastern District of Virginia, decided to go forward on their own with their own private attorney.  Timothy Bostic and Tony London filed their lawsuit and the ensuing publicity brought an offer by the American Foundation for Equal Rights (AFER), which had litigated against California Proposition 8, to provide representation by Ted Olson and David Boies.  AFER’s offer was accepted, and the new legal team expanded the lawsuit by adding another couple as plaintiffs, Carol Schall and Mary Townley, who had married in California in 2008 and were seeking recognition of their marriage.

Olson and Boies pushed their case ahead more quickly than the ACLU, which filed its lawsuit shortly after the Bostic case was filed.  The ACLU focused on getting the trial judge in the Western District, Michael Urbanski, to certify their case as a class action, seeking to ensure that a win would be binding throughout the state.  Olson and Boies focused on pushing forward quickly to a summary judgment that would get their case up to the court of appeals, and District Judge Arenda L. Wright Allen accommodated them with a grant of summary judgment on Feburary 13, which she stayed pending appeal.  When the appeal was filed, the ACLU moved to intervene on behalf of their plaintiff class, as Judge Urbanski had put their case on hold pending a ruling by the 4th Circuit, and it was agreed that the ACLU would participate in the briefing and argument.

Things were also complicated on the defense side of the case.  Bostic and London had originally sued the governor and attorney general, as well as the local clerk in Norfolk who would not take their marriage application.  After the Schall-Townley plaintiffs were added, the amended complaint added Virginia State Registrar Janet Rainey, whose office plays a role in recognizing out-of-state marriages, as a defendant. The 2013 election in November turned out the Republicans and brought in the Democrats, and the new state leadership, Governor Terry McAuliffe and Attorney General Mark Herring, are marriage equality supporters who were not inclined to defend the ban.  Herring filed notices with the courts that the state would not provide a defense, which left that role to the clerks:  Norfolk Clerk George E. Schaefer, III, and Michele McQuigg, the Prince William County Clerk whose motion to intervene had been granted shortly before Herring, who was representing Rainey, notified the court that he would not offer a defense.  David Oakley, a local attorney from Chesapeake, Virginia, and Austin Nimocks, an attorney from Alliance Defending Freedom, a right-wing religious litigation group opposed to same-sex marriage, ended up representing the clerks in appealing Judge Wright Allen’s ruling.

At the oral argument before the three-judge panel in Richmond on May 13, Oakley and Nimocks argued for the clerks, Virginia Solicitor General Stuart Raphael argued on behalf of Rainey (now representing the Virginia executive branch’s position that the ban was unconstitutional), Olson argued for the AFER plaintiffs, and James Esseks, Director of the ACLU’s LGBT Rights Project, argued for the class action plaintiffs.

The three-judge panel selected for the argument was suitably diverse.  The senior member of the panel, Paul V. Neimeyer, was appointed to the court by George H.W. Bush in 1990.  Roger L. Gregory was appointed by Bill Clinton toward the end of his second term, was blocked in the Senate, and then was reappointed by George W. Bush as part of a deal to break a deadlock over Bush’s first group of appellate appointees.  Gregory is the first African-American to serve on the 4th Circuit.  Finally, the junior member of the panel, who ended up writing the opinion for the court, was Henry F. Floyd, appointed by Barack Obama in 2011.

Floyd’s opinion followed closely on the path set by the 10th Circuit Court of Appeals in June when it struck down the Utah marriage ban.  Both courts, faced with prior circuit precedent holding that sexual orientation discrimination claims were subject to deferential rational basis review, avoided that route entirely, instead basing their decisions on the conclusion that the plaintiffs were being denied a fundamental right, which required the court to subject the state marriage ban to strict scrutiny.  Under the strict scrutiny test, a challenged law can only survive if it is narrowly tailored to achieve a compelling state interest.  Most laws subjected to strict scrutiny are held unconstitutional.

Before getting to the main issue, however, Floyd contended briefly with the defendants’ contention that the plaintiffs lacked standing to bring the case, a make-weight argument of virtually no substance in these lawsuits, and that the Supreme Court had foreclosed this challenge by its 1972 ruling in Baker v. Nelson, a Minnesota case, that same-sex marriage did not present a “substantial federal question.”  Floyd pointed out that “every federal court to consider this issue since the Supreme Court decided U.S. v. Windsor [the DOMA case] has reached the same conclusion,” that the old case is no longer relevant.  He then cited the 10th Circuit’s ruling and ten U.S. District Court rulings.  He also quoted Justice Ruth Bader Ginsburg’s comment when this issue was raised during the oral argument in the Proposition 8 case: “Baker v. Nelson was 1971.  The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny. . .  Same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.”

Turning to the main issue, Floyd asserted that the plaintiffs in this case were not seeking a new constitutional right – a right of same-sex marriage – but rather an individual right to get married to the partner of their choice.  As such, the majority of the court saw this case as falling into the same category as Loving v. Virginia, the Supreme Court ruling from 1967 that struck down Virginia’s ban on interracial marriages.  Floyd went through the various Supreme Court right-to-marry cases, finding a common thread supporting the plaintiffs’ contention.  “Over the decades,” he wrote, “the Supreme Court has demonstrated that the right to marry is an expansive liberty interest that may stretch to accommodate changing societal norms.”  After briefly describing the most important marriage precedents, he wrote, “These cases do not define the rights in question as ‘the right to interracial marriage,’ ‘the right of people owing child support to marry,’ and ‘the right of prison inmates to marry.’  Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.  The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of ‘freedom of choice’ that ‘resides with the individual.’  If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.”

Dissenting, Judge Niemeyer vehemently disagreed.  “In reaching this conclusion,” he argued, “the majority has failed to conduct the necessary constitutional analysis.  Rather, it has simply declared syllogistically that because ‘marriage’ is a fundamental right protected by the Due Process Clause and ‘same-sex marriage’ is a form of marriage, Virginia’s laws declining to recognize same-sex marriage infringe the fundamental right to marry and are therefore unconstitutional. . .  This analysis is fundamentally flawed because it fails to take into account that the ‘marriage’ that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly-proposed relationship of a ‘same-sex marriage.’  And this failure is even more pronounced by the majority’s acknowledgement that same-sex marriage is a new notion that has not been recognized ‘for most of our country’s history.’  Moreover, the majority fails to explain how this new notion became incorporated into the traditional definition of marriage except by linguistic manipulation.”  Niemeyer also suggested that the majority’s approach would lead to the argument that polygamous and incestuous marriages came within the fundamental right to marry.

The difference between the majority and the dissent over whether a fundamental right was involved was determinative of their outcomes.  Judge Floyd examined the five rationales advanced by the county clerks for maintaining a ban on same-sex marriage and found that none of them met the test of strict scrutiny.  Judge Niemeyer asserted confidently that several of these rationales would suffice to uphold the ban under the rational basis approach.  While disclaiming any view about whether same-sex couples should be allowed to marry as a matter of public policy, Niemeyer asserted that this was a decision for the state to make, and its voters had made the decision by adopting their marriage amendment.

Judge Floyd’s discussion of the various state rationales followed now-familiar paths after two dozen prior marriage equality rulings by federal courts.  There was the usual quotation from Justice Scalia’s dissent in Windsor, the usual invocation of an amicus brief from various learned professional association’s pointing out the consensus of reputable authority on the parenting abilities of same-sex couples, and the usual observation that denying marriage to same-sex couples disadvantaged their children without in any way increasing the likelihood that different-sex couples would forgo procreating outside of marriage.

“We recognize that same-sex marriage makes some people deeply uncomfortable,” wrote Judge Floyd.  “However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.  Civil marriage is one of the cornerstones of our way of life.  It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security.  The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life.  Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”

With his dissent, Judge Niemeyer became only the second federal judge to rule against a marriage equality claim since the ruling last December by U.S. District Judge Robert Shelby that the Utah marriage ban was unconstitutional.  The first, of course, was the dissenting 10th Circuit judge, Paul Joseph Kelly, also appointed by the first President Bush a quarter century ago.  Every other federal judge to rule in a marriage equality case, regardless the party of the president who appointed her or him, has ruled for marriage equality.

There are fourteen active judges serving on the 4th Circuit, nine of whom were appointed either by Bill Clinton (counting Judge Gregory) or Barack Obama.  Faced with that line-up, it seems most likely that the clerks’ attorneys would by-pass a motion for en banc review and petition the Supreme Court directly, as the state of Utah has indicated that it will do in response to the 10th Circuit’s ruling.