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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.

4th Circuit Panel Holds Oral Argument in Virginia Marriage Cases

Posted on: May 13th, 2014 by Art Leonard No Comments

A panel of three judges of the Richmond-based U.S. Court of Appeals for the 4th Circuit conducted oral arguments on May 13 in Bostic v. Schaefer, an appeal by two county clerks of a district court decision that held Virginia’s ban on same-sex marriage unconstitutional. The 4th Circuit had previously granted intervenor status on the appeal to the plaintiffs in another pending marriage case, Harris v. Rainey, so both pending federal court challenges to the Virginia ban were heard in this consolidated case.

However, since the state of Virginia has now lined up with the plaintiffs, agreeing that the ban is unconstitutional, the only parties appealing at this point are two county clerks, George E. Schaefer III and Michele McQuigg. They were represented in the arguments by David B. Oakley, a private attorney retained by Mr. Schaefer, and Austin Nimocks, an attorney from the anti-gay litigation firm “Alliance Defending Freedom,” representing Ms. McQuigg.

Former U.S. Solicitor General Ted Olson, who represented the challengers to California Proposition 8 in the case that went to the Supreme Court last year, represents the plaintiffs from the Eastern District of Virginia, Timothy Bostic and Tony London, seeking the right to marry, and Carol Schall and Mary Townley, seeking recognition of their out-of-state marriage. James Esseks, Director of the LGBT Rights Project of the ACLU, represented a class of all same-sex couples in Virginia as certified by the Western District of Virginia district court, but their class representatives are also two same-sex couples, Joanne Harris and Jessica Duff, and Christy Berghoff and Victoria Kidd, also one married seeking recognition and the other seeking to marry.

Since the change in administration in Virginia led to a change in the state’s position, Virginia’s Solicitor General, Stuart A. Raphael, appeared on behalf of the state to urge the court to affirm the ruling by District Judge Arenda L. Wright Allen that the Virginia ban violates the 14th Amendment.

Three-judge panels in the 4th Circuit are generated by a computer program to assure random selection, and this was a particularly diverse panel. Presiding as the most senior judge was Paul V. Niemeyer, appointed to the court by President George H.W. Bush. The circuit’s first African-American judge, Roger L. Gregory, was originally appointed to the court by Bill Clinton on a recess appointment late in his administration, and then was renominated by George W. Bush as part of a deal to break the deadlock on Bush’s first circuit court appointments. Finally, Judge Henry F. Floyd was appointed to the circuit court by President Barack Obama. Judge Floyd previously served on the district court by appointment of President George W. Bush, but before his judicial service had been a Democratic state legislator. Sorting out the political backgrounds of the appointees doesn’t get one very far with this panel.

One thing was sure from the outset, however, based on the questioning and comments from the bench. As much as he cautioned counsel and spectators from making assumptions based on his questions, it seemed very clear that Judge Niemeyer was extremely resistant to the idea that the Constitution might compel the state of Virginia to allow same-sex couples to marry. His questioning showed that he viewed the Supreme Court’s decision last June in U.S. v. Windsor, the DOMA case, as being heavily influenced by federalism. Even though Justice Anthony M. Kennedy’s decision stated explicitly that the Court was deciding the case based on the 5th Amendment Due Process and Equal Protection requirements and not specifically on federalism concerns, Kennedy’s opinion devoted several pages to discussing the traditional role of the states in deciding who can marry and the traditional approach of the federal government to accepting as legal for federal purposes those marriages allowed by the states. Attorneys Oakley and Nimocks both pressed this view repeatedly: that Windsor was really a federalism case, and that it was narrowly focused on the question whether the federal government could refuse to recognize a marriage that a state had decided to recognize.

In the Windsor case, Edie Windsor and Thea Spyer had married in Canada. By the time Spyer passed away in 2009, New York appellate courts were recognizing same-sex marriages from out of state, even though New York did not pass its own marriage equality law until 2011. Windsor was suing for an estate tax refund, arguing that the Internal Revenue Service should have honored New York’s recognition of her marriage, and treat her as a surviving spouse exempt from estate taxes on her inheritance from her wife.

Nimocks hammered the point home by referring to the last paragraph of Justice Kennedy’s opinion for the Supreme Court: “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.”

In other words, Nimocks argued, the Windsor case was specifically about the right of the states to decide who could marry and which marriages to recognize, and rejected the authority of the federal government to decree that certain marriages recognized by the state would not be recognized by the federal government. According to Nimocks, Windsor is essentially irrelevant to the question whether the 14th Amendment requires states to allow or recognize same-sex marriages.

Arguing on behalf of the plaintiff couples from Virginia, Olson, Esseks and Raphael emphasized how constitutional doctrine has developed over the course of Supreme Court decisions to the point where the district court’s conclusion in this case was, in Raphael’s words, “ineluctable.” Olson’s argument devolved into rapid back-and-forth statements with Judge Niemeyer, who seemed particularly combative in rejecting the idea that the union of a same-sex couple could be seen as “the same” as a different-sex couple. He insisted that the word “marriage” should not be used for such a couple, because same-sex couples have a “different relationship.” He conceded that the state might want to confer the rights and benefits long associated with marriage on same-sex couples, but stated that this was a decision for the state to make. Although Oakley had focused in his remarks on the significance of Virginia voters having supported the marriage amendment by a clear majority (56%, which is not all that impressive considering the margins by which such amendments were passed in some other states), Niemeyer’s comments didn’t seem to place particular weight on that. He insisted that it was not “particularly useful” to compare the “new relationship” of same-sex unions with heterosexual unions.

The other judge on the panel who gave rather clear signals of his sympathies was Judge Gregory, who particularly hammered Nimocks when he got up to make a rebuttal argument at the end of the allotted hour. Gregory continued questioning well past the flashing red light on the podium, although Judge Niemeyer good-humoredly said they could keep going as long as Gregory had questions.

Nimocks kept coming back to the argument that Virginia had an interest in ensuring that children benefited from “diverse parenting” from a father and a mother, and argued that some right to “genderless” marriage was not entitled to due process protection because it was not historically deeply rooted. Indeed, he appeared to be avoiding referring to a “right to marry,” instead saying over and over again that the right identified by the Supreme Court in the numerous decisions that Olson referred to was the “right to enter into the union of a husband and a wife.” Gregory asked Nimocks about how his concern for the welfare of children played out with the children being raised by same-sex couples, pointing out that same-sex couples can have children and raise children, and he characterized as “disingenuous” Nimock’s purported concern for the welfare of children. There seemed little doubt that Gregory was for affirmance.

So the swing vote on this panel will come from Judge Floyd, and he was relatively silent during the argument by comparison to his two colleagues. However, during Oakley’s opening argument, Floyd made a point of asking about whether the right to marry is an individual right of choice of a marital partner as opposed to a right of couples, and he also particularly focused in during Nimock’s argument about the justification for Virginia refusing to recognize same-sex marriages contracted out of state, especially when children were involved.

Esseks focused on the question of what level of scrutiny the court should use in evaluating Virginia’s ban, arguing that some form of heightened scrutiny should apply, requiring Virginia to justify its discriminatory ban. Niemeyer pushed back on this, pointing out that the Supreme Court has never specifically held that sexual orientation discrimination merits heightened scrutiny, and opining that Windsor is a “difficult opinion to read,” circling back to his opening depiction of it as a federalism case. Esseks responded with a description of the “triggers” for heightened review that the Supreme Court has responded to in various cases, and arguied that several of them applied to the Virginia marriage ban. Perhaps tipping his hand on where his thinking is going, Judge Floyd asked about the approach taken by the Boston-based U.S. Court of Appeals in its DOMA ruling, which involved “careful review” as opposed to “heightened scrutiny.” Ultimately, Esseks argued, the marriage ban would have to fall even under traditional rational basis review, because excluding same-sex couples from marriage didn’t advance any of the policy goals identified by the state.

Solicitor General Raphael provide a strong doctrinal argument, showing how the Supreme Court’s decision over the past several decades had rendered Baker v. Nelson, the Supreme Court’s 1972 dismissal of a same-sex marriage appeal, irrelevant. He also argued, as Olson had argued, that the marriage ban discriminated not only on the basis of sexual orientation but also on the basis of gender, and thus merited heightened scrutiny on that ground. “This is an explicit gender classification,” he said, and cited a prior opinion by Judge Niemeyer for the point that laws using gender classifications should be subjected to heightened scrutiny, which puts the burden on the state to prove that the classification substantially advances an important state interest. But, as Olson had argued, there is no evidence that banning same-sex marriage makes it more likely that different-sex couples will marry and have children.

Raphael also took on the federalism argument. Acknowledging that the Windsor decision devoted substantial attention to the traditional role of the states in defining marriage, he pointed out that the States remain bound by federal constitutional requirements. “The Bill of Rights trumps federalism,” he stated. Of course, this case is about the 14th Amendment, not the Bill of Rights, but his reference was, in the context of the Windsor case, to a provision of the Bill of Rights, the 5th Amendment, which places the same substantive limitations on the federal government that the 14th Amendment, adopted after the Civil War to assure full citizenship to the recently-freed slaves, places on the states.

The bottom line? As with last month’s 10th Circuit arguments in the Utah and Oklahoma cases, it appears that at least one member of the panel is predisposed to reverse the district court’s opinion, one member seems clearly disposed to affirm it, and the last is harder to read. However, as with the 10th Circuit, it appeared possible, from reading the tea leaves of questions and comments, that the “swing” voter might swing in favor of invalidating the ban.

However, as Judge Neimeyer said early on, the 4th Circuit is just a “way station” on the way to the Supreme Court. With the Supreme Court’s Utah stay and the subsequent stays placed by district courts and circuit courts on the pro-marriage equality rulings rendered thus far, it is clear that further extension of same-sex marriage rights through the courts will depend, ultimately, not on what the courts of appeals say, but what the Supreme Court says, probably sometime in 2015.

Marriage Equality Case Developments Come Hot and Heavy

Posted on: April 8th, 2014 by Art Leonard No Comments

As anticipation builds for the first federal appellate arguments on marriage equality since the Supreme Court’s decision last June striking down the Defense of Marriage Act’s anti-gay federal marriage definition, new developments in marriage equality litigation continue to pile up in various parts of the country.

On Thursday, April 10, a panel of three judges of the Denver-based U.S. Court of Appeals for the 10th Circuit will hear the state of Utah’s appeal of last December’s federal district court order, Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013), requiring that the state allow same-sex couples to marry and recognize same-sex marriages contracted out of state. That order was stayed by the Supreme Court on January 6 after a panel of the 10th Circuit had refused to stay it, and only after more than a thousand same-sex couples had married. A week later, on April 17, the same three-judge panel will hear the state of Oklahoma’s appeal from a narrower order by the federal court there, Bishop v. United States, 962 F.Supp.2d 1252 (N.D. Okla. 2014), requiring the state to allow same-sex couples to marry but avoiding the issue of recognition of out-of-state marriages. Then, on May 13, the 4th Circuit Court of Appeals, based in Richmond, Virginia, will hear oral arguments in an appeal by two county court clerks of another federal district court ruling, Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19110 (E.D. Va., Feb. 13, 2014), requiring the state to allow same-sex couples to marry and to recognize out-of-state same-sex marriages. Arguments have yet to be scheduled for similar appeals in the 5th, 6th and 9th Circuits, but there have been developments in some of those cases as well.

First, turning to Virginia, where marriage equality lawsuits were filed in both the Eastern and Western federal district courts. . . The Western District case, Harris v. Rainey, the second to be filed, was brought as a classic test-case by the ACLU and Lambda Legal, which put out a call after the Windsor decision to identify suitable plaintiffs to challenge the Virginia ban. While these public interest law firms were carefully assembling their case, a same-sex couple living in the Eastern District found an attorney and went ahead with their own lawsuit.

News reports brought that case to the attention of the American Foundation for Equal Rights (AFER), which had been formed in 2009 to challenge the constitutionality of California Proposition 8, having recruited star appellate attorneys Ted Olson (former U.S. Solicitor General) and David Boies to litigate that case to the Supreme Court. Olson and Boies won Perry V. Schwarzenegger in the district court, but fell short of achieving a Supreme Court nation-wide victory because the state decided not to appeal and the Supreme Court held, in Hollingsworth v. Perry, 131 S. Ct. 2652 (2013), that the proponents of Proposition 8, who had tried to appeal, lacked the qualifications to represent the state’s interest in the case. The district court decision stood, and same-sex marriages resumed in California.

Then AFER was looking about for a new opportunity to get this issue to the Supreme Court and suddenly Virginia presented itself as a lively possibility. AFER contacted Bostic’s attorney and offered its services, which were readily accepted. The Olson-Boies team pushed the case forward faster than the ACLU/Lambda team, which filed their case shortly after the Bostic case was filed. The Bostic case moved forward much more quickly, and the federal district court granted summary judgment to the plaintiffs on February 13 in Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19110 (E.D. Va.), after the newly-elected governor and attorney general of Virginia announced that they agreed with plaintiffs that the state’s marriage amendment and statutory ban were unconstitutional. As these officials (and subsequently the state’s registrar of vital records) were no longer defending the ban, the case was being pushed forward on appeal by two county court clerks.

Meanwhile, the Harris case was still at the pre-trial stage, with the trial judge having certified it as a class action on behalf of all same-sex couples interested in marrying or having their marriages recognized in Virginia, except for the plaintiff couple in Bostic v. Schaefer (as the case was now called). This prompted ACLU/Lambda to petition the 4th Circuit to be allowed to participate in the appeal on behalf of their plaintiff class, and the 4th Circuit granted the motion on March 10. This left the judge in Harris v. Rainey, Michael F. Urbanski, in a rather odd position. He was facing a summary judgment motion from the plaintiffs, but nobody was actually opposing the motion, since all defendants in the case had dropped any support for the marriage ban. (The local clerk in this case, Thomas E. Roberts of the Staunton Circuit Court, officially takes no position on the constitutionality of the ban.) And, of course, whatever the 4th Circuit decides will be binding on Judge Urbanski, so it made little sense for him to issue a decision on the pending motion before that happened. He took the prudent step of issuing an opinion on March 31, see 2014 Westlaw 1292803, announcing that he would “stay this case” pending the 4th Circuit’s decision. Of course, if the 4th Circuit rules against marriage equality in Bostic, the plaintiffs will either apply for en banc rehearing or petition the Supreme Court for certiorari. But they may not be the first to get there, depending what happens in the 10th Circuit.

There has also been an interesting development in the 6th Circuit, which now has the distinction of being the only circuit to have marriage equality appeals pending from every state in the circuit: Michigan, Ohio, Kentucky, and Tennessee. Michigan Attorney General Bill Schuette filed a petition with the court on April 4, asking that Michigan’s appeal of a federal court order in DeBoer v. Snyder, 2014 U.S. Dist. LEXIS 37274 (E.D. Mich., March 21, 2014), requiring the state to allow and recognize same-sex marriages, by-pass the usual three-judge panel stage and go directly to en banc review, which in the 6th Circuit would mean review before the full bench of 15 active judges.

The 6th Circuit had already issued an expedited briefing schedule after issuing a stay of the district court’s ruling, mirroring the schedules issued in the Kentucky and Tennessee cases, and following shortly on the schedule for the earlier-filed Ohio death certificate case. Commented Schuette, “Accordingly, all four cases are proceeding swiftly in parallel and will have briefing completed within weeks of each other.” Referencing Federal Rules of Appellate Procedure 35, which recognizes that some cases are “so significant that they warrant initial hearing en banc,” Schuette asserted, “This is such a case. It presents the question whether one of our most fundamental rights — the right to vote — matters, or whether a judge can take an important social issue out of the hands of the voters by concluding it is not something about which reasonable citizens can disagree.” This is a very loaded way of stating the question. For one thing, the Supreme Court has not recognized voting as a fundamental right; if it had, recent decisions upholding voter ID laws would certainly have come out differently. For another, it mischaracterizes the “rational basis test” as applied by the district court in this and other cases.

At any event, Schuette is undoubtedly correct that an early resolution of this case would be helpful. No matter how it turns out, it is likely headed to the Supreme Court. On the other hand, Schuette may be playing a numbers game here. The 6th Circuit now has 10 active judges appointed by either George H.W. or George W. Bush, three judges appointed by Clinton and two by Obama, with one vacancy. The en banc court has a 10-5 Republican-appointed majority. A three-judge panel, on the other hand, depending on the luck of the draw (and assuming random panel compositions) might even have a majority of Democratic appointees. On the other hand, several of the marriage equality decisions rendered since Windsor have been issued by Republican appointees, so it looks like pre-judicial political affiliations of the judges are not playing a big role in these post-Windsor cases. Be that as it may, this issue is not going to be finally decided in any federal court of appeals; only a Supreme Court resolution will be accepted by any of the states that are actively defending their bans in court. (The one major looming exception is Oregon, where state officials have informed the federal district judge in a pending marriage equality case that if he rules in favor of plaintiffs after a summary judgment hearing scheduled soon, the state will comply and not appeal, and no objecting county clerks have moved to intervene as defendants to take the case on appeal.) So, stay tuned for possible interesting developments in the 6th Circuit. What might be most efficient, of course, would be for the court to consolidate the pending appeals from the four states into one grand proceeding, hear it en banc, and issue an opinion dealing with all the cases simultaneously. That would be something special, no matter how it turned out!

There are also interesting developments in the 9th Circuit, where an appeal is pending by Lambda Legal of an adverse decision from the federal district court in Nevada that predates Windsor, Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). The state was actively defending this case on appeal, but abruptly altered its position after a three-judge panel of the 9th Circuit ruled on January 21 in SmithKline Beecham v. Abbott Laboratories, 2014 U.S. App. LEXIS 1128, that sexual orientation discrimination claims are subject to “heightened scrutiny” under the 14th Amendment. That case is an antitrust lawsuit between competing pharmaceutical companies about HIV-related drugs, and Abbott, the defendant, used a peremptory challenge to keep a gay man off the jury. The 9th Circuit panel held that a peremptory challenge could not be used for that purpose; after Windsor, held the panel, prior 9th Circuit cases on point were no longer valid and the heightened scrutiny standard meant that in order to remove a juror because he was gay, the defendant would have to show that there was cause to question the particular juror’s ability to decide the case fairly. When Abbott announced it was not seeking en banc review or planning to appeal this to the Supreme Court, Nevada’s governor and attorney general announced their conclusion that the Nevada ban was not defensible in the 9th Circuit. They didn’t withdraw their appeal, however, as amicus parties would step up to argue in support of the ban and, presumably, if the case got to the Supreme Court, state officials might again take up the argument.

The 9th Circuit had scheduled oral argument to take place on April 9, a day before the 10th Circuit Utah argument, but then, mysteriously, cancelled that hearing date without announcing a new one. Word was that a judge of the circuit asked for more time to prepare for the hearing. But it eventually appeared that there was some sentiment within the Circuit to reconsider the panel decision in SmithKline before proceeding with the Nevada marriage case, as the court issued a notice to the parties informing them that a judge of the circuit had asked to consider going en banc, and the parties were directed to submit briefs on the question whether the case should be reconsidered en banc. This effectively puts off the Nevada case for a while, since it is unlikely the Circuit would scheduled a new hearing until it has decided whether to reconsider SmithKline, and how such reconsideration turns out would affect whether Nevada officials reconsider their decision not to defend their ban before the 9th Circuit. Complicated, what? In addition, of course, what happens in this case affects the marriage equality lawsuits pending in several other states in the 9th Circuit: Arizona, Idaho, and Oregon. So here is some real legal suspense playing itself out.

Finally, turning back again to the 6th Circuit, and specifically to Ohio, there was a new development on April 4 when District Judge Timothy Black, in Cincinnati, held a hearing on a more recently filed marriage equality case, Henry v. Wymsylo, brought by some married lesbian couples seeking an order that Ohio recognize their marriages. Plaintiffs had filed a motion for permanent injunction and declaratory relief. Judge Black, who had previously issued a ruling that the state must recognize out-of-state same-sex marriages for purposes of recording death certificates in Obergefell v.Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013), announced at this hearing that he “anticipates striking down as unconstitutional under all circumstances Ohio’s bans on recognizing legal same-sex marriages from other states,” and would issue an opinion to that effect “on or before April 14, 2014.” This order would go beyond the Obergefell case, since it would extend beyond recognition for a specific purpose (death certificates, birth certificates) to a more general recognition requirement, similar to those issued by other trial judges in the 6th Circuit in Kentucky, Bourke v. Beshear, 2014 U.S. Dist. LEXIS 17457 (W.D. Ky., Feb. 12, 2014), and Tennessee, Tanco v. Haslam, 2014 U.S. Dist. LEXIS 33463 (M.D. Tenn., March 14, 2014). Presumably, the state would quickly file its appeal and this could be consolidated with the pending appeal of the Obergefell decision and perhaps, as noted above, consolidated by the 6th Circuit with its hearings in the Michigan, Tennessee and Kentucky cases. It would certainly make sense to do so, as the legal issues are identical in all these cases.

So, things are quickly coming to a boil at the appellate level, even as new marriage equality cases have been filed in recent weeks in other states, and the count of marriage equality cases on file nationwide is rapidly approaching litigation in every state that does not already allow same-sex couples to marry. As of now, same-sex couples can marry in 17 states and the District of Columbia, and a majority of those states, as well as D.C., achieved marriage equality through the legislature, not through judicial action. In addition, of course, as a result of the Windsor decision, the federal government now recognizes same-sex marriages validly concluded under state law for most purposes, providing at least partial recognition for same-sex couples who marry in states other than where they reside. The tide toward marriage equality appears irresistible, as public opinion polls show majority support in the electorate (and even, when things are broken down demographically, by residents of many non-marriage-equality states and by young Republicans). This will likely end up in the Supreme Court next term, so spring 2015 may be when the marriage equality issue is resolved in the United States.