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Supreme Court Will Not Decide Transgender Title IX Case This Term

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

The Supreme Court will not decide this term whether Title IX of the Education Amendments of 1972 and an Education Department regulation, 34 C.F.R. Section 106.33, require schools that receive federal money to allow transgender students to use restrooms consistent with their gender identity. Gloucester County School Board v. G.G., No. 16-273 (Summary Disposition, March 6, 2017).  Title IX states that schools may not discriminate because of sex if they get federal money, and the regulation allows schools to provide separate restroom and locker room facilities for boys and girls so long as they are “equal.”

Responding to a February 22 letter from the Trump Administration, advising the Court that the Education and Justice Departments had “withdrawn” two federal agency letters issued during the Obama Administration interpreting the statute and regulation to require allowing transgender students to use facilities consistent with their gender identity, the Court announced on March 6 that it was “vacating” the decision by the 4th Circuit Court of Appeals in the case of transgender high school student Gavin Grimm, which it had previously agreed to review, and sending the case back to the 4th Circuit for “further consideration in light of the guidance document issued by the Department of Education and Department of Justice.”  The case had been scheduled for argument on March 28.

This result was not unexpected, although both parties in the case, Grimm and the Gloucester County, Virginia, School District, had asked the Court to keep the case on the docket and decide whether Title IX and the bathroom regulation required the district to let Grimm use boys’ restrooms at the high school. Represented by the ACLU LGBT Rights Project, Grimm urged the Court to hold the previously scheduled hearing.  The school district urged the Court to delay the hearing, in order to give the Trump Administration an opportunity to weigh in formally, but then to hear and decide the case.  Had the Court granted the school district’s request, the case might have been argued before the end of the Court’s current term or delayed to next fall.

The case dates back to 2015, when Grimm and his mother had met with school administrators during the summer prior to his sophomore year to tell them about his gender transition and they had agreed to let him use the boys’ restrooms, which he did for several weeks with no problems. Complaints by parents led the school board to adopt a resolution requiring students to use restrooms consistent with the sex indicated on their birth certificates – so-called “biological sex” – regardless of their gender identity.  The school also provided an alternative, unacceptable to Grimm, of using a single-user restroom that he found inconvenient and stigmatizing.

Grimm sued the school district, alleging a violation of his rights under Title IX and the 14th Amendment. The Education Department sent a letter at the request of the ACLU informing the district court that the Department interpreted Title IX and the bathroom regulation as “generally” requiring schools to let transgender students use facilities consistent with their gender identity.  Following the lead of several federal courts and the Equal Employment Opportunity Commission interpreting other federal statutes that forbid sex discrimination, the Obama Administration took the position that laws against sex discrimination protect people from discrimination because of their gender identity.

The district judge, Robert Doumar, rejected the Obama Administration’s interpretation and granted the school district’s motion to dismiss the Title IX claim on September 17, 2015 (132 F. Supp. 3d 736), while reserving judgment on Grimm’s alternative claim that the policy violated his right to equal protection of the law guaranteed by the 14th Amendment.  Doumar opined that when adopting Title IX in 1972, Congress had not intended to forbid gender identity discrimination, notwithstanding the Obama Administration’s more recent interpretation of the statute.

The ACLU appealed Doumar’s ruling to the Richmond-based 4th Circuit, where a three-judge panel voted 2-1 on April 19, 2016 (822 F.3d 709), to reverse Judge Doumar’s decision.  The panel, applying a Supreme Court precedent called the Auer Doctrine, held that the district court should have deferred to the Obama Administration’s interpretation of the bathroom regulation because the regulation was ambiguous as to how transgender students should be accommodated and the court considered the Obama Administration’s interpretation to be “reasonable.”  A dissenting judge agreed with Judge Doumar that Title IX did not forbid the school district’s policy. The panel voted 2-1 to deny the school district’s motion for rehearing by the full 4th Circuit bench on May 31 (824 F.3d 450).

Shortly after the 4th Circuit issued its decision, the Education and Justice Departments sent a “Dear Colleague” letter to school administrators nationwide, advising them that the government would interpret Title IX to protect transgender students and providing detailed guidance on compliance with that requirement.  The letter informed recipients that failure to comply might subject them to Education Department investigations and possible loss of eligibility for federal funding.  This letter stirred up a storm of protest led by state officials in Texas, who filed a lawsuit joined by ten other states challenging the Obama Administration’s interpretation as inappropriate.  Subsequently another lawsuit was filed in Nebraska by state officials joined by several other states making the same argument.

Judge Doumar reacted quickly to the 4th Circuit’s reversal of his ruling, issuing a preliminary injunction on June 23 requiring the school district to allow Grimm to use boys’ restrooms while the case proceeded on the merits (2016 WL 3581852).  The 4th Circuit panel voted on July 12 to deny the school district’s motion to stay the preliminary injunction, but on August 3 the Supreme Court granted an emergency motion by the school district to stay the injunction while the district petitioned the Supreme Court to review the 4th Circuit’s decision (136 S. Ct. 2442).

It takes five votes on the Supreme Court to grant a stay of a lower court ruling pending appeal. Usually the Court issues no written opinion explaining why it is granting a stay.  In this case, however, Justice Stephen Breyer issued a one-paragraph statement explaining that he had voted for the stay as a “courtesy,” citing an earlier case in which the conservative justices (then numbering five) had refused to extend such a “courtesy” and grant a stay of execution to a death row inmate in a case presenting a serious 8th Amendment challenge to his death sentence.  Justices Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan indicated that they would have denied the motion, so all four of the conservative justices had voted for the stay.  Since it takes five votes to grant a stay but only four votes to grant a petition for certiorari (a request to the Court to review a lower court decision), it was clear to all the justices that the school district’s subsequent petition for review would be granted, and it was, in part, on October 28 (137 S. Ct. 369).

Meanwhile, however, U.S. District Judge Reed O’Connor in Wichita Falls, Texas, had granted a “nationwide” preliminary injunction later in August in the Texas case challenging the Obama Administration guidance, blocking federal agencies from undertaking any new investigations or initiating any new cases involving gender identity discrimination claims under Title IX. Texas v. United States, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016).  The Obama Administration filed an appeal with the Houston-based 5th Circuit Court of Appeals, asking that court to cut down the scope of O’Connor’s injunction to cover just the states that had joined that lawsuit, pending litigation on the merits in that case.

The Gloucester school district’s petition for certiorari asked the Supreme Court to consider three questions: whether its doctrine of deferral to agency interpretations of regulations should be abandoned; whether, assuming the doctrine was retained, it should be applied in the case of an “unpublished” letter submitted by the agency in response to a particular lawsuit, and finally whether the Obama Administration’s interpretation of Title IX and the regulation were correct.  The Court agreed only to address the second and third questions.

Donald Trump was elected a week later. During the election campaign, he stated that he would be revoking Obama Administration executive orders and administrative actions, so the election quickly led to speculation that the Gloucester County case would be affected by the new administration’s actions, since the Guidance had been subjected to strong criticism by Republicans.  This seemed certain after Trump announced that he would nominate Senator Jeff Sessions of Alabama to be Attorney General, as Sessions has a long history of opposition to LGBT rights.  The announcement that Trump would nominate Betsy DeVos to be Secretary of Education fueled the speculation further, since her family was notorious for giving substantial financial support to anti-LGBT organizations.  It seemed unlikely that the Obama Administration’s Title IX Guidance would survive very long in a Trump Administration.

The other shoe dropped on February 22, just days before the deadline for submission of amicus curiae (“friend of the court”) briefs on behalf of Gavin Grimm.   The Solicitor General’s office had not filed a brief in support of the school district at the earlier deadline, and there had been hope that the government would file a brief on behalf of Grimm or just stay out of the case.  According to numerous press reports, Secretary DeVos, who reportedly does not share her family’s anti-gay sentiments, had not wanted to withdraw the Guidance, but Attorney General Sessions insisted that the Obama Administration letters should be withdrawn, and Trump sided with Sessions in a White House showdown over the issue.

The February 22 “Dear Colleagues” letter was curiously contradictory, however. While announcing that the prior letters were “withdrawn” and their interpretation would not be followed by the government, the letter did not take a position directly on whether Title IX applied to gender identity discrimination claims.  Instead, it said that further study was needed on the Title IX issue, while asserting that the question of bathroom access should be left to states and local school boards and that schools were still obligated by Title IX not to discriminate against any students, regardless of their sexual orientation or gender identity.  The letter was seemingly an attempt to compromise between DeVos’s position against bullying and discrimination and Sessions’ opposition to a broad reading of Title IX to encompass gender identity discrimination claims.  White House Press Secretary Sean Spicer said that the question of Title IX’s interpretation was still being considered by the administration.

In any event, the Obama Administration interpretation to which the 4th Circuit panel had deferred was clearly no longer operative, effectively rendering moot the first question on which the Supreme Court had granted review.  Although the parties urged the Court to continue with the case and address the second question, it was not surprising that the Court decided not to do so.

The usual role of the Supreme Court is to decide whether to affirm or reverse a ruling on the merits of a case by the lower court. In this case, however, the 4th Circuit had not issued a ruling on the merits as such, since the basis for its ruling was deference to an administrative interpretation.  The 4th Circuit held that the Obama Administration’s interpretation was “reasonable,” but not that it was the only correct interpretation of the regulation or the statute.  The only ruling on the merits in the case so far is Judge Doumar’s original 2015 ruling that Grimm’s complaint failed to state a valid claim under Title IX.  Thus, it was not particularly surprising that the Supreme Court would reject the parties’ request to hear and decide the issue of interpretation of Title IX, and instead to send it back to the 4th Circuit to reconsider in light of the February 22 letter.  The Court usually grants review because there are conflicting rulings in the courts of appeals that need to be resolved. Here there are no such conflicting rulings under Title IX and the bathroom regulation, since the only other decisions on this question are by federal trial courts.

After issuing its February 22 letter, the Justice Department abandoned its appeal of the scope of Judge O’Connor’s preliminary injunction in the Texas case and asked the 5th Circuit to cancel a scheduled argument, which it did.  Furthermore, withdrawal of the Obama Administration Guidance rendered the Texas v. U.S. case moot, since the relief sought by the plaintiffs was a declaration that the Guidance was invalid, so Judge O’Connor will dissolve his injunction and the case will be withdrawn, as will be the Nebraska case.

In the meantime, there are several other relevant cases pending. The Cincinnati-based 6th Circuit and the Philadelphia-based 3rd Circuit will be considering appeals from district court rulings on transgender student rights from Ohio and Pennsylvania, there are cases pending before trial courts elsewhere, and there are multiple lawsuits pending challenging North Carolina’s H.B. 2, which among other things mandates that transgender people in that state use public restrooms consistent with their birth certificates.  One case challenging H.B. 2 was filed by the Obama Justice Department and may be abandoned by the Trump Administration.  But the 4th Circuit is shortly to hear arguments on an appeal filed by three transgender plaintiffs who are students or staff members at the University of North Carolina, who won a preliminary injunction when the trial judge in their case, filed by the ACLU and Lambda Legal, deferred to the Obama Administration Guidance as required by the 4th Circuit’s ruling in Grimm’s case, but declined to rule on the plaintiffs’ claim that H.B. 2 also violated their constitutional rights.  Carcano v. McCrory, 2016 WL 4508192 (M.D.N.C. Aug. 26, 2016). The appeal is focused on their constitutional claim and their argument that the preliminary injunction, which was narrowly focused on the three of them, should have been broadly applied to all transgender people affected by H.B. 2.  The case pending in the 3rd Circuit also focuses on the constitutional claim, as a trial judge in Pittsburgh ruled that a western Pennsylvania school district violated the 14th Amendment by adopting a resolution forbidding three transgender high school students from using restrooms consistent with their gender identity. Evancho v. Pine-Richland School District, 2017 U.S. Dist. LEXIS 26767, 2017 WL 770619 (W.D. Pa. Feb. 27, 2017).

Meanwhile, Gavin Grimm is scheduled to graduate at the end of this spring semester, which may moot his case since he was seeking injunctive relief to allow him to use the boys’ restrooms, unless the court is convinced that a live controversy still exists because the school district’s policy continues in effect and will still prevent Grimm from using the boys’ restrooms if he come to the school to attend alumni events.

It seems likely that whatever happens next in the Gavin Grimm case, the issue of transgender people and their access to gender-identity-consistent public facilities will continue to be litigated in many federal courts in the months ahead, and may be back to the Supreme Court soon, perhaps as early as its 2017-18 Term. By then, the Court is likely to be back to a five-member conservative majority, assuming the Senate either confirms Trump’s nomination of Judge Neil Gorsuch or, if that stalls, another conservative nominee.  It is even possible that Trump may have a second vacancy to fill before this issue gets back to the Court, in which case the plaintiffs may face very long odds against success.

 

 

Federal Court Awards Preliminary Restroom Access Relief to Transgender Students on Their Constitutional Claim

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

Switching the focus from Title IX of the Education Amendments of 1972 to the Equal Protection Clause of the federal Constitution, U.S. District Judge Mark R. Hornak of the Western District of Pennsylvania awarded a preliminary injunction on February 27 to three transgender high school students represented by Lambda Legal who are challenging a school board resolution that bars them from using sex-segregated restrooms that are consistent with their gender identities. Evancho v. Pine-Richland School District, Civil No. 2:16-01537.

Acknowledging the Trump Administration’s February 22 action withdrawing two letters sent by the U.S. Education Department during the Obama Administration on the subject of transgender restroom access under Title IX as well as the pending U.S. Supreme Court consideration of Gloucester County School Board v. G.G. (certiorari granted October 28, 2016), a Title IX claim by Gavin Grimm, a transgender boy from Virginia, against his school district, in which that Court granted the school district’s request to stay a preliminary injunction issued by the district court (see 136 S. Ct. 2442 (Aug. 3, 2016)), Judge Hornak wrote that he “cannot conclude that the path to relief sought by the Plaintiffs under Title IX is at the moment sufficiently clear that they have a reasonable likelihood of success on that claim.”  A “reasonable likelihood” finding is a prerequisite to issuing preliminary relief.

On the other hand, Hornak concluded that the plaintiffs did have such a path under the Equal Protection Clause and decided to blaze a new trail on this issue, in which prior courts have focused their attention almost exclusively on Title IX in line with the general preference of federal courts to rule based on statutes rather than resorting to constitutional rulings.

Hornak prefaced his constitutional analysis with a detailed set of factual findings and a sharp focus on the particular facts of this case, including that the three transgender students involved all began their transitions a few years ago and had been using restrooms consistent with their gender identities without any opposition from school administrators or any disturbance as early as the 2013-14 school year. In each case, they and their parents had met with school administrators, who had agreed to recognize and honor their gender identities in all respects.  Each of them has been living consistent with their gender identity for several years, although because of their ages only one of them has obtained a new birth certificate.  Administrators, teachers and fellow students have consistently used their preferred names and pronouns and treated them accordingly.  It wasn’t until a student mention the restroom use to her parents, who then contacted the school board together with other parents and turned it into an “issue,” that administrators even became aware that the transgender students were using the restrooms, since nobody had complained about it or made it an issue before then.  Ultimately the school board responded to noisy parental opposition at a series of public meetings, first rejecting a resolution allowing the transgender students to use the restrooms consistent with their gender identity by a tie vote, then adopting a contrary resolution by a slim margin.

The judge also pointed out that the boys’ and girls’ restrooms at the Pine-Richland high school were designed with individual privacy in mind, with dividers between the urinals in the boys’ rooms and privacy-protecting stalls with internal locks for the toilets in both rooms. Locker room access is not an issue at this point in the case, since all three plaintiffs have completed their physical education requirements and are not using the locker rooms.  The school also has established numerous single-user restrooms that are accessible to students.  The judge easily concluded, based on uncontested evidence that the restrictive Resolution was not necessary to protecting anybody’s privacy, thus rejecting one of the main justifications advanced by the school board.

Neither the Supreme Court nor the 3rd Circuit Court of Appeals, which has jurisdiction over federal trial courts in Pennsylvania, has ruled on what standard of judicial review applies to government policies that discriminate because of gender identity. The school board argued that this means the court should use the least demanding standard, rationality review, to evaluate its policy.  Judge Hornak rejected that argument, saying, “First, that means that applying an Equal Protection standard other than rational basis in such a setting is not contrary to settled law, and second, when an issue is fairly and squarely presented to a District Court, that Court must address it. Dodging the question is not an option.”  He also observed that an earlier decision by another trial judge in his district involving a transgender student, Johnston v. University of Pittsburgh, 97 F. Supp. 3d 557 (W.D. Pa. 2015), was not binding on him, and he found that case distinguishable on the facts and the law, not least because of the extended period in this case during which the plaintiffs used restrooms without incident and had full recognition of their gender identity by the school administration and staff.

Reviewing the various criteria that the Supreme Court has discussed in cases about the appropriate level of equal protection review, Hornak concluded that the “intermediate standard” used in sex discrimination cases should apply in this case. “The record before the Court reflects that transgender people as a class have historically been subject to discrimination or differentiation; that they have a defining characteristic that frequently bears no relation to an ability to perform or contribute to society; that as a class they exhibit immutable or distinguishing characteristics that define them as a discrete group; and that as a class, they are a minority with relatively little political power.”  Focusing on this particular case, he wrote, “As to these Plaintiffs, their transgender characteristics are inherent in who they are as people, which is not factually contested by the District.  As to these Plaintiffs, and more generally as to transgender individuals as a class, that characteristic bears no relationship to their ability to contribute to our society.  More precisely, the record reveals that the Plaintiffs are in all respects productive, engaged, contributing members of the student body at the High School.  Thus, all of the indicia for the application of the heightened intermediate scrutiny standard are present there.”

That means that the defendants have the burden to justify their discriminatory policy, and the judge concluded they were likely to fall short in that. “Specifically, what is missing from the record here are facts that demonstrate the ‘exceedingly persuasive justification” for the enforcement of Resolution 2 as to restroom use by these Plaintiffs that is substantially related to an important governmental interest,” wrote Hornak.  The Resolution was not shown to be “necessary to quell any actual or incipient threat, disturbance or other disruption of school activity by the Plaintiffs,” he found, and there was no evidence that it was necessary to “address any such threat or disturbance by anyone else in the High School restrooms.” Furthermore, it did not address any privacy concern “that is not already well addressed by the physical layout of the bathrooms,” he found, continuing, “it would appear to the Court that anyone using the toilets or  urinals at the High School is afforded actual physical privacy from others viewing their external sex organs and excretory functions.  Conversely, others in the restrooms are shielded from such views.”  And the school’s existing code of conduct as well as state laws already exist to deal with any “unlawful malicious ‘peeping Tom’ activity by anyone pretending to be transgender,” he wrote, dismissing a concern raised by the defendants as a hypothetical justification for the policy.

The school board argued that some parents had threatened to withdraw their students from school if the Board did not keep transgender students out of the restrooms, but the court was not willing to countenance this as a justification for the policy. “If adopting and implementing a school policy or practice based on those individual determinations or preferences of parents – no matter how sincerely held – runs counter to the legal obligations of the District,” he wrote, “then the District’s and the Board’s legal obligations must prevail. Those obligations to the law take precedence over responding to constituent desires,” because the 14th Amendment’s Equal Protection Clause “is neither applied nor construed by popular vote.”

Furthermore, rejecting the Board’s argument that enjoining the Resolution while the case proceeds was an improper change of the “status quo,” the court found that for several years the plaintiffs freely using the restrooms consistent with their gender identity was the “status quo,” even if school officials claimed they were unaware of it. This was a “persistently-applied custom or practice” which had the same weight as a written policy and, of course, until the Resolution was adopted, the District had no written policy on this issue.  The court rejected the defendants’ argument that the availability of single-user restrooms “sprinkled around the High School” provided a sufficient “safety valve” for the plaintiffs, making an injunction unnecessary.  “Given that settled precedent provides that impermissible distinctions by official edict cause tangible Constitutional harm,” he wrote, “the law does not impose on the Plaintiffs the obligation to use single-user facilities in order to ‘solve the problem.’” He found that this was “no answer under the Equal Protection Clause that those impermissibly singled out for different treatment can, and therefore must, themselves ‘solve the problem’ by further separating themselves from their peers.”

He easily concluded that the differential treatment inflicted irreparable harm on the plaintiffs, and that ordering the District to allow them to use gender-appropriate restrooms would “cause relatively little ‘harm’ in the preliminary injunction sense – if any harm at all – to the District and the High School community.” It was crucial to this conclusion, of course, that the plaintiffs had been using the restrooms without incident for years until some parents made an issue out of it.  He also found that issuing the injunction would serve the public interest by vindicating the constitutional rights of the plaintiffs.

In case a second-guessing court of appeals should disagree with his determination that heightened scrutiny applied to this case, Judge Hornak also stated that the Resolution probably would not even survive rationality review, since he found that it was not necessary to achieve any of the goals suggested by the defendants.

Judge Hornak’s decision not to grant the injunction based on Title IX seems prudent in light of the unsettled situation he describes. The 4th Circuit Court of Appeals ruling in the Gavin Grimm case depended on deference to the Obama Administration’s interpretation of the Education Department’s bathroom regulation.  With that interpretation being “withdrawn” by the Trump Administration in a letter that did not substitute any new interpretation in its place, there is nothing to defer to and the construction of the statute and regulation is now pending before the Supreme Court, which voted 5-3 last summer to stay the district court’s preliminary injunction in the Grimm case.  Hornak noted that the criteria for the Supreme Court issuing a stay in a case like that include the Court’s judgment that the case presents a serious possibility of being reversed by the Court on the merits.  What he omits to mention is that the stay was issued only because Justice Stephen Breyer, who would in other circumstances have likely voted against granting the stay, released an explanation that he was voting for the stay as a “courtesy” to the four more conservative justices, undoubtedly because they had the four votes to grant a petition to review the 4th Circuit’s ruling.  Under the Supreme Court’s procedures, five votes are needed to take an action, such as issuing a stay or reversing a lower court ruling, but only four votes are needed to grant a petition to review a lower court decision.  It was clear in that case that the Gloucester County School Board would be filing a petition for review and that there were four justices ready to grant it.  Judge Hornak interpreted that, as Justice Breyer clearly did, as a signal that the interpretation of Title IX in this context is up for grabs.  If Neil Gorsuch is confirmed by the Senate in time to participate in deciding that case, the outcome will probably turn on Justice Anthony Kennedy, who voted for the stay.  (Justices Ginsburg, Sotomayor and Kagan announced that they would have denied the stay.)

Judge Hornak’s ruling confirms that for the overwhelming majority of educational institutions subject to Title IX because they receive federal funds, it does not really matter whether Title IX requires them to afford gender-consistent restroom access to transgender students (or staff, for that matter), because as government-operated institutions they are bound to respect the Equal Protection rights of their students and employees. However, for non-governmental educational institutions that receive federal funds, either through work-study programs, loan assistance, or research grants in the case of the major private universities, their federal obligations towards transgender students depend on Title IX and whatever state or local laws might apply to them as places of public accommodation, which vary from state to state, only a minority of states and localities protecting transgender people from discrimination.

In light of the lack of 3rd Circuit appellate precedent on the constitutional issue, it would not be surprising if the defendants seek a stay of this injunction from the court of appeals, and there is no predicting how that court would rule, although the likelihood that the Supreme Court will issue a ruling of some sort in the Grimm case by the end of June might lead them to err on the side of caution to give the school district temporary relief.

Lambda Legal’s attorneys representing the plaintiffs are Omar Gonzalez-Pagan, Christopher Clark and Kara Ingelhart, who are joined by local counsel in Pennsylvania, Tracie Palmer and David C. Williams of Kline & Specter, P.C..

Arkansas Supreme Court Rules Fayetteville Anti-Discrimination Measure Violates State Law

Posted on: February 23rd, 2017 by Art Leonard No Comments

Fayetteville has been a hotbed of LGBT rights advocacy, but on February 23 the Arkansas Supreme Court, reversing a ruling by Washington County Circuit Court Judge Doug Martin, found that the city and its voters had violated state law by adding “sexual orientation” and “gender identity” to their antidiscrimination ordinance. Protect Fayetteville & State of Arkansas v. City of Fayetteville, 2017 Ark. 49.  Justice Josephine Linker Hart wrote the opinion for the unanimous court.

Responding to earlier attempts to enact LGBT rights protections in Fayetteville, the Arkansas legislature passed Act 137 in 2015. Titled the Intrastate Commerce Improvement Act, Ark. Code Ann. Sec. 14-1-401 to 403, the measure was intended, according to its purpose section, “to improve intrastate commerce by ensuring that businesses, organizations, and employers doing business in the state are subject to uniform nondiscrimination laws and obligations, regardless of the counties, municipalities, or other political subdivisions in which the businesses, organizations, and employers are located or engage in business or commercial activities.”  To that end, the measure bars local governments from adopting or enforcing “an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.”  The Act recognizes one exception: local governments are left free to legislate on their own employment policies.  Thus, a city can adopt an ordinance banning discrimination in its own workforce on grounds “not contained in state law.”

Arkansas, in common with the entire southeastern United States, does not forbid sexual orientation or gender identity discrimination in its state antidiscrimination statute. The clear intent of the legislators was to preempt local governments from adding those two characteristics to their local antidiscrimination ordinances. Or at least that’s what the court held in this decision.

Local LGBT rights advocates and city officials took a different view, however, seizing upon the literal meaning of “not contained in state law” and finding that Arkansas laws existed mentioning sexual orientation or gender identity. For example, an anti-bullying law protects public school students and employees from bullying because of gender identity or sexual orientation, among a list of 13 characteristics.  There is also a provision in the state’s domestic violence law requiring domestic violence shelters to adopt nondiscrimination policies that include “sexual preference.”  And the state’s vital statistics act provides a mechanism for an individual to get a new birth certificate after sex reassignment surgery.  Taken together, the advocates argued that “sexual orientation” and “gender identity” are classifications that exist in Arkansas law, their inclusion in the city’s anti-discrimination ordinance would not be prohibited by Act 137.

The city council approved a new ordinance, Ordinance 5781, to add those categories to the local law, subject to an affirmative referendum vote. Opponents of the measure (plaintiffs in this case) tried to get the local court to stall the referendum while they contested the legality of the proposed ordinance, but the local court refused and the public voted to approve the measure.  Ultimately, Judge Martin agreed with the argument that “sexual orientation” and “gender identity” could be added to the local ordinance, as they were categories that were mentioned in state law.

The Supreme Court’s reversal was premised on legislative intent. “In this case,” wrote Justice Hart, “the General Assembly expressly stated the intent.”  The operative language could not be construed in isolation from the prefatory provision explaining why the legislature had adopted Act 137.  They wanted nondiscrimination laws to be uniform through the state, and did not want localities to outlaw discrimination based on classifications that were not included in the state’s own antidiscrimination law.  “The express purpose of Act 137 is to subject entities to ‘uniform nondiscrimination laws and obligations,’” wrote Justice Hart.  She also noted that the Fayetteville ordinance, in a provision explaining the city council’s purpose, stated that “its purpose is to ‘extend’ discrimination to include ‘sexual orientation and gender identity.”  Explained Justice Hart, “In essence, Ordinance 5781 is a municipal decision to expand the provisions of the Arkansas Civil Rights Act to include persons of a particular sexual orientation and gender identity.”  She’s incorrect, of course, as to this statement, since by its plain meaning the ordinance would protect anybody from discrimination because of their sexual orientation or gender identity, including “straight” and “cisgender” people.

“This violates the plain wording of Act 137 by extending discrimination laws in the City of Fayetteville to include two classifications not previously included under state law,” wrote Hart. “This necessarily creates a nonuniform nondiscrimination law and obligation in the City of Fayetteville that does not exist under state law. It is clear from the statutory language and the Ordinance’s language that there is a direct inconsistency between state and municipal law and that the Ordinance is an obstacle to the objectives and purposes set forth in the General Assembly’s Act and therefore it cannot stand.”  She noted that the statutes relied upon by the city and Judge Martin to argue that these categories were covered in state law were not antidiscrimination statutes, and thus could not be relied upon as a basis for adding them to the local antidiscrimination ordinance.

As a co-plaintiff in the case the State had intervened to protect the constitutionality of Act 137, which had been questioned by the city, but that issue had not been addressed by the circuit court, and the Supreme Court held it thus had not been preserved for appeal. The case was reversed and remanded.  On remand, the city could pursue the question of the constitutionality of Act 137.  It is strikingly similar, despite its euphemistic wording, to Colorado Amendment 2, which was declared unconstitutional under the 14th Amendment by the Supreme Court in Romer v. Evans (1996).  Amendment 2 prohibited the state or any political subdivision from prohibiting discrimination because of sexual orientation.  The Supreme Court, focusing on the legislative history of the measure, condemned it as intended to make gay people unequal to everybody else in the state out of moral disapproval.  The state had advanced a desire for uniformity of state laws as one of many justifications for Amendment 2, but Justice Anthony Kennedy, writing for the Court, did not specifically reject any of the state’s justifications, merely stating that none of them were sufficient to justify the law, which did not even clear rational basis scrutiny.

Trump Administration Withdraws Title IX Guidance in Contradictory “Dear Colleague” Letter

Posted on: February 23rd, 2017 by Art Leonard No Comments

 

The Trump Administration, keeping a promise made by Donald Trump during his campaign to leave the issue of restroom and locker room access by transgender students up to state and local officials, issued a letter to all the nation’s school districts on February 22, withdrawing a letter that the Obama Administration Education Department submitted in the Gavin Grimm transgender rights case on January 7, 2015, and a “Dear Colleague” letter sent jointly by the Education and Justice Departments to the nation’s school districts on May 13, 2016.

 

The Obama Administration letters had communicated an interpretation of Title IX of the Education Amendments of 1972, a statute banning sex discrimination by educational institutions that receive federal money, as well as a DOE regulation issued under Title IX, 34 C.F.R. Section 106.33, governing sex-segregated facilities in educational institutions, to require those institutions to allow transgender students and staff to use facilities consistent with their gender identity. The regulation says that educational facilities may have sex-segregated facilities, so long as they are “equal.”

 

The February 22 letter states that the Departments “have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Department thus will not rely on the views expressed within them.”  It also states that the departments “believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy,” embodying Trump’s articulated campaign position on this issue.

 

At the same time, however, the February 22 letter stated: “All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment,” and insisted that the withdrawal of the earlier guidance documents “does not leave students without protections from discrimination, bullying, or harassment” and that the Education Department’s Office of Civil Rights “will continue its duty under law to hear all claims of discrimination and will explore every opportunity to protect all students and to encourage civility in our classrooms.” It asserts that the two departments “are committed to the application of Title IX and other federal laws to ensure such protection.”

 

However, Press Secretary Sean Spicer said on February 22 that the administration was analyzing its overall position on Title IX, which could result in parting ways from the Obama Administration’s view that Title IX prohibits gender identity discrimination in schools.

 

Thus, an internal contradiction appears. The letter at least implies that sexual orientation and gender identity discrimination do violate Title IX, but that the question whether transgender students should be allowed access to sex-segregated facilities consistent with their gender identity needs further study and perhaps needs to be addressed in a new regulation accompanied by detailed analysis that is put through the Administrative Procedure Act process of publication of proposed rules, public comment and hearing, and final publication in the Federal Register, with Congress having a period of several months during which it can intervene to block a new regulation.

 

The Solicitor General’s office, which represents the government in Supreme Court cases, also informed the Court on February 22 that the Obama Administration guidance documents had been withdrawn, that the views expressed in them would no longer be relied upon by those executive branch agencies, and that, instead, the administration would “consider further and more completely the legal issues involved.”

 

This development comes just six weeks before the Supreme Court argument scheduled for March 28 in Gloucester County School District v. G.G. (the Gavin Grimm case), and just before the due date for the Solicitor General to file an amicus brief presenting the government’s position on the issues before the Court.

 

The Court might react to this development in a variety of ways. Since the government is not a party in the case, the Court might just ignore the letter and go ahead with the argument.  Or it might consider that this development renders moot one or both of the questions on which it granted review, which could lead to a reshaping of the case to focus solely on the appropriate interpretation of Title IX and the facilities regulation.  It might even decide that the entire case should be sent back to the 4th Circuit for reconsideration in light of these developments.

 

The new Dear Colleague letter, sent over the signatures of Acting Assistant Secretary for Civil Rights Sandra Battle (Education Department) and Acting Assistant Attorney General for Civil Rights T.E. Wheeler, II (Justice Department), shows the signs of compromise reflecting the reported battle between Betsy DeVos, the recently-confirmed Secretary of Education, and Jeff Sessions, the recently-confirmed Attorney General. Several media sources reported that DeVos did not want to withdraw the earlier Guidance, but that Sessions was determined to do so.

 

In light of his record on LGBT issues as a Senator and former Attorney General of Alabama, Sessions is reportedly bent on reversing the numerous Obama Administration regulations and policy statements extending protection to LGBT people under existing laws. It was probably a big disappointment to him that the President decided not to rescind Obama’s Executive Order imposing on federal contractors an obligation not to discriminate because of sexual orientation or gender identity, and we may not have heard the last on that issue.

 

DeVos, by contrast, is reportedly pro-LGBT, despite the political views of her family, who are major donors to anti-LGBT organizations. According to press accounts, for example, in Michigan she intervened on behalf of a gay Republican Party official whose position was endangered when he married his partner.

 

Several newspapers and websites have reported that DeVos and Session brought their dispute to the President, who resolved it in favor of Sessions, leaving it to them to work out the details. Trump was undoubtedly responding to the charge by many Republicans that the Obama Administration had “overreached” in its executive orders and less formal policy statements, going beyond the bounds of existing legislation to make “new law” in areas where Congress had refused to act and overriding state and local officials on a sensitive issue.  In this case, Republicans in both houses had bottled up the Equality Act, a bill that would have added sexual orientation and gender identity as explicitly forbidden grounds for discrimination in a variety of federal statutes, including Title IX.

 

While withdrawing the Obama Guidance documents, the February 22 the letter does not state a firm position on how Title IX should be interpreted, either generally in terms of gender identity discrimination or specifically in terms of access to sex-segregated facilities, such as restrooms and locker rooms. It criticizes the withdrawn documents as failing to “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX,” and points out that they did not “undergo any formal public process,” a reference to the Administrative Procedure Act steps that are necessary to issue formal regulations that have the force of law.

 

While the withdrawn guidance documents did not have the force of law, they communicated to schools that the Education Department believed that Title IX bars gender identity discrimination and requires access to facilities consistent with a person’s gender identity, which meant that the Education Department or the Justice Department might initiate litigation or seek suspension of federal funding against districts which failed to comply. In the end, it would be up to courts to decide whether to follow this interpretation.  Furthermore, federal courts have found an “implied right of action” by individuals to bring suit to enforce their rights under Title IX, and that is not changed by withdrawal of the guidance documents.

 

The 4th Circuit’s decision of May 2016, up for review by the Supreme Court, came in a lawsuit initiated by an individual high school student, Gavin Grimm, a transgender boy who was barred from using the boys’ restrooms at his high school by a resolution of the Gloucester County, Virginia, School Board after it received complaints from members of the community. District Judge Robert Doumar had dismissed Grimm’s Title IX complaint, even though the Obama Administration sent its January 7, 2015, letter, informing the court that the Education Department believed that Title IX required the school district to let Grimm use the boys’ restrooms.  The 4th Circuit ruled that Judge Doumar should have deferred to the Education Department’s interpretation, as the regulation governing sex-segregated facilities was ambiguous on the question and the Department’s interpretation, which relied on federal appeals court and administrative agency decisions under other sex discrimination statutes finding that gender identity discrimination was a form of sex discrimination, was “reasonable.”  The School District petitioned the Supreme Court to review this ruling.

 

The Supreme Court agreed to consider two questions: (1) Whether deference to an informal letter from the Education Department was appropriate, and (2) whether the Department’s interpretation of Title IX and the regulation was correct. With the letter having been withdrawn, the question of deferring to it may be considered a moot point, but some commentators on administrative law had been hoping the Court would use this case as a vehicle to abandon its past ruling that courts should give broad deference to agency interpretations of ambiguous regulations, and the Court could decide that this issue has not really been rendered moot since it is a recurring one. Indeed, the February 22 letter implicitly raises the new question of whether the courts should defer to it in place of the withdrawn Guidance.

 

The Supreme Court’s agreement to consider whether the Education Department’s interpretation was correct might also be considered moot, since the Education Department has abandoned that interpretation, but certainly the underlying question of how Title IX and the regulation should be interpreted is very much alive, as several courts around the country are considering the question in cases filed by individual transgender students, states, and the Obama Administration (in its challenge to North Carolina’s H.B. 2, which is based on Title IX, Title VII of the Civil Rights Act, and the Equal Protection Clause of the Constitution).

 

Two groups of states filed suit in federal courts challenging the Dear Colleague letter of May 13, 2016. In one of those lawsuits, with Texas as the lead plaintiff, Judge Reed O’Connor of the Northern District of Texas ruled that the plaintiffs were likely to succeed in their challenge, and issued a nationwide preliminary injunction last August forbidding the government from enforcing this interpretation of Title IX in any new investigation or case.  The DOE/DOJ February 22 letter points out that this nationwide injunction is still in effect, so the departments were not able to investigate new charges or initiate new lawsuits in any event.  What it doesn’t mention is that the Obama Administration filed an appeal to the 5th Circuit, challenging the nationwide scope of the injunction, but the Trump Administration recently withdrew that appeal, getting the 5th Circuit to cancel a scheduled oral argument.  Of course, these lawsuits specifically challenging the Obama Administrative Guidance documents are now moot with those documents having been withdrawn by the Trump Administration, since the plaintiffs in those cases sought only prospective relief which is now unnecessary from their point of view.  Presumably a motion to dismiss as moot would be granted by Judge O’Connor, dissolving the preliminary injunction.  O’Connor’s order never had any effect on the ability of non-governmental plaintiffs, such as Gavin Grimm, to file suit under Title IX.

 

In North Carolina, the Obama Administration, former governor Pat McCrory, Republican state legislative leaders, a group representing parents and students opposed to transgender restroom access, and transgender people represented by public interest lawyers had all filed lawsuits challenging or defending H.B.2. The Trump Administration’s February 22 actions may signal that at least the federal government is likely either to abandon or cut down on the scope of its lawsuit challenging H.B.2.  Since North Carolina is in the 4th Circuit, all of these cases were likely to be affected by a reconsideration by the 4th Circuit in light of these new developments.  Around the country, several pending lawsuits have been put “on hold” by federal district judges as well, while awaiting Supreme Court action on the Gavin Grimm case.  If the Supreme Court were to reject the argument that “sex discrimination” in a statute can be broadly construed to encompass gender identity, these cases, arising under either Title IX or Title VII, may be dismissed.

 

Since the confirmation hearing for 10th Circuit Judge Neil Gorsuch, nominated by Trump for the Supreme Court vacancy, is scheduled to take place on March 20, and Democratic opposition may stretch out the confirmation process, it seems likely that there will be only eight members on the Supreme Court to consider the Grimm case. In that event, it was widely predicted that the result would be either a tie affirming the 4th Circuit without opinion and avoiding a national precedent, or a 5-3 vote with an opinion most likely by Justice Anthony Kennedy, joining with the more liberal justices to adopt the more expansive reading of Title IX.  However, this will be the first time the Supreme Court has tackled directly a gender identity issue under sex discrimination laws, so predicting how any member of the Court may vote is completely speculative.

 

 

Federal Court Lets Transgender Employee Sue Employer for Transition Benefits Denial Under Title VII

Posted on: January 17th, 2017 by Art Leonard No Comments

Does a transgender employee who seeks coverage under her employer’s benefits plans for breast augmentation surgery have a legal remedy if her claims are denied? U.S. District Judge Sidney A. Fitzwater ruled on January 13 that a transgender woman employed by L-3 Communications Integrated Systems (L-3) may pursue a sex discrimination claim under Title VII of the Civil Rights Act of 1964, having alleged that she was denied such benefits because of her gender, but not under the anti-discrimination provision of the Affordable Care Act (ACA). Baker v. Aetna Life Insurance Company, 2017 U.S. Dist. LEXIS 5665, 2017 WL 131658 (N.D. Tex.).

Judge Fitzwater rejected discrimination claims against the insurance company that provides the coverage and administers the plans on behalf of the employer, finding that the ACA and President Obama’s Executive Order governing gender identity discrimination by federal contractors do not apply to this situation, and that the insurance company cannot be sued under Title VII because it is not the plaintiff’s employer. Judge Fitzwater declined to grant motions for summary judgment by either the employee or by the insurer of her claim that denial of health and short-term disability benefits violates her rights under the terms of the employee benefits plan, setting that claim down for further proceedings.

According to her Complaint filed in the U.S. District Court for the Northern District of Texas in Dallas, Charlize Marie Baker is an employee of L-3 and a participant in the company’s Health Plan and its Short-Term-Disability (STD) Plan, both of which are administered by Aetna Life Insurance Company. She began the process of transitioning in 2011, obtained a legal name change, and had her gender designation changed from male to female on all government-issued documents.  She scheduled breast implant surgery in 2015 after her doctor determined that it was medically necessary to treat her gender dysphoria.

Baker filed claims for coverage of the surgery under the Health Plan and coverage of her recovery period under the STD Plan.  She alleges that the Health Plan denied her claim to cover the surgery, because “the plan does not cover breast implants for individuals with a male birth gender designation who are transitioning to the female gender, although the plan covers individuals with a female birth designation who are transitioning to the male gender and seeking a mastectomy.”  Presumably the mastectomy would be routinely covered because the Health Plan is accustomed to covering mastectomies for female employees when their doctors state that the procedure is medically necessary.   Baker was denied STD benefits because the Plan administrator decided that surgery to treat Gender Dysphoria does not qualify as “treatment of an illness.”

In his January 13 ruling, Judge Fitzwater focused on motions by L-3 and Aetna to dismiss discrimination claims brought under Section 1557 of the ACA, the Employee Retirement Income Security Act (ERISA), and Title VII of the Civil Rights Act of 1964. Section 1557 of the ACA incorporates by reference Title IX of the Education Amendments Act of 1972, which prohibits discrimination “because of sex.”  ERISA has its own non-discrimination provision, but does not specifically ban discrimination “because of sex.”  The ERISA provision broadly prohibits discriminating against an employee to prevent them from getting benefits to which they are entitled under an employee benefit plan.  ERISA provides a vehicle for employees to sue plan administrators for the wrongful denial of benefits to which they are entitled under employee benefit plans.

None of the statutes under which Baker filed her claims explicitly prohibits discrimination because of gender identity. In resisting the motions to dismiss, she relied heavily on a regulation published by the Department of Health and Human Services last spring, providing that Section 1557 of the ACA bans discrimination because of gender identity by insurers and health care providers, tracking interpretations of Title IX by the Department of Education and the Justice Department, which in turn relied on interpretations of Title VII by some federal courts and the Equal Employment Opportunity Commission (EEOC).

Baker also relied on President Obama’s Executive Order 13672, which bans gender identity discrimination by federal contractors. Noting that L-3 is a federal contractor, Baker’s attorneys, Michael J. Hindman and Kasey Cathryn Krummel of Hindman/Bynum PC, urged the court to make “a good faith extension of existing law that the discrimination by Defendants based on her Gender Identity is also discrimination in violation of ERISA in this context and that ERISA must be read to include the prohibition of discrimination based on gender identity.”

“Baker is unable to point to any controlling precedent that recognizes a cause of action under Section 1557 [of the ACA] for discrimination based on gender identity,” wrote the judge. For one thing, he pointed out, the HHS regulation on point was to become effective on January 1, 2017, long after Baker was denied benefits, and thus was not applicable at the time of Aetna’s decision to deny the claims, and furthermore, one of Judge Fitzwater’s colleagues on the Northern District of Texas bench, Judge Reed O’Connor, has issued two rulings rejecting the argument that Title IX, which is the source of the ACA non-discrimination policy regarding sex, should be “construed broadly to protect any person, including transgendered persons, from discrimination.”

On August 21, 2016, Judge O’Connor issued a preliminary injunction against the enforcement of Title IX by the federal government in gender identity cases, and he issued a similar preliminary injunction on December 31, 2016, against the enforcement of the HHS regulation in gender identity cases under the ACA. The government appealed the August 21 ruling to the 5th Circuit Court of Appeals in Houston, and announced it would similarly appeal the December 31 ruling.  Whether those appeals will be pursued or dropped after the change of administration on January 20 is a decision for the new attorney general and secretaries of education and health.  In both of those cases, O’Connor concluded that the plaintiffs were likely to prevail on their claim that Title IX (and by extension the ACA) does not ban gender identity discrimination.

Many federal courts are grappling with the question whether federal laws and regulations banning discrimination “because of sex” should apply to gender identity or sexual orientation discrimination, but there is no consensus yet among the appellate courts. The Supreme Court has a case pending on the gender identity issue under Title IX, but it has yet to be scheduled for argument.  The closest the appeals courts have come are decisions finding that “sex stereotyping” violates Title VII and perhaps by extension other sex discrimination laws, based on a 1989 ruling by the Supreme Court in Price Waterhouse v. Hopkins.  Some courts have used the “sex stereotyping” theory to protect transgender employees in Title VII cases.  However, Judge Fitzwater was correct in observing that as of now there is no “controlling precedent” supporting Baker’s claim that gender identity discrimination, as such, violates Section 1557 of the ACA.  For this judge, a “controlling precedent” would be one coming from the 5th Circuit, which has appellate jurisdiction over federal trial courts in Texas, or the Supreme Court, and expressly addressing the issue.

Baker sought to argue that “the ‘effect’ of E.O. 13672 seems to be little more than to clarify the issue left somewhat ambiguous in Section 1557 that discrimination against transgender persons under this law is prohibited.” She argued that when the ACA was enacted in 2010, some courts had already relied on Price Waterhouse v. Hopkins to find gender identity discrimination covered by Title VII.

Fitzwater found “two fallacies” in this argument. “First,” he wrote, “the Fifth Circuit has not extended Hopkins’ Title VII reasoning to apply to any statute referenced in Section 1557,” and cited Judge O’Connor’s August 21 ruling in support of this point.  “Second, Baker is relying on an Executive Order to clarify what she characterizes as a ‘somewhat ambiguous’ legislative act.”  This was not enough to satisfy Fitzwater, who granted the motions to dismiss the ACA discrimination claim.

Aetna also moved to dismiss Baker’s ERISA claim, contending that ERISA does not ban gender identity discrimination in the administration of employee benefit plans. Fitzwater agreed with Aetna, finding that “as Baker acknowledges, this claim is not currently recognized.  It is for the Congress, not this court, to decide whether to create in ERISA a protection that the statute does not already provide.”  And because the court had already rejected her argument under Section 1557, it would not rely on that ACA provision as a basis for finding a right under ERISA.

Turning finally to the motions to dismiss the Title VII claim, Judge Fitzwater rejected Baker’s argument that Aetna should be liable to suit for sex discrimination under Title VII as an “agent” of L-3 in administering the benefits plans. Fitzwater pointed to 5th Circuit precedents holding that Title VII does not apply in the absence of an employer-employee relationship.  Baker argued that in the EEOC Compliance Manual there is a suggestion that an insurance company administering an employer’s benefit plans is acting as the employer’s agent, “but the EEOC Compliance Manual does not have the force of law,” wrote Fitzwater.  “And this circuit recognizes an agency theory of employer liability only if the alleged agent had authority ‘with respect to employment practices,’” which Baker did not allege.

However, at long last Fitzwater reached the only claim that he refused to dismiss in this opinion: Baker’s allegation that the denial of coverage for her surgery and recovery period under the benefits plans provided by her employer constituted sex discrimination by the employer in violation of Title VII. L-3 argued that Baker had failed to allege that she suffered an adverse employment action based on her gender, but, wrote Fitzwater, “The Court disagrees.”

“Baker plausibly alleges that she was denied employment benefits based on her sex,” he wrote. “She asserts that L-3 ‘engaged in intentional gender discrimination in the terms and conditions of employment by denying her a medically necessary procedure based solely on her gender,’” that the company’s “conduct constitutes a deliberate and intentional violation of Title VII,” and that this conduct “has cause [her] to suffer the loss of pay, benefits, and prestige.”  This was enough, concluded Fitzwater, to allow her Title VII claim against her employer to continue.  Interestingly, his opinion does not explore explicitly whether Title VII applies to gender identity discrimination claims as such, and makes no mention of the EEOC’s 2012 decision to that effect, choosing to treat this as purely a sex discrimination, presumably on the basis that Baker would have been covered for the procedure had she been identified female at birth, so clearly in that sense the denial was because of her sex.

Thus, at this point Baker continues to have a claim under ERISA against Aetna, based on her allegation that Aetna’s refusal to cover her procedure and recovery period violated the terms of the benefits plans, and a sex discrimination claim under Title VII against her employer, based on her allegation that the employer’s benefit plan discriminated against her because of her sex.

Federal Judge Issues National Preliminary Injunction against ACA Regulation Banning Gender Identity Discrimination

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

In an eleventh-hour action, U.S. District Judge Reed O’Connor (N.D. Texas, Wichita Div.) issued a nationwide preliminary injunction on December 31, barring the federal government from enforcing part of a new regulation that was scheduled to go into effect on January 1, 2017, which interpreted the prohibition on discrimination because of sex under the Affordable Care Act to extend to discrimination because of “gender identity” and “termination of pregnancy.” Franciscan Alliance v. Burwell, Civ. Action No. 7:16-cv-00108-O.  Judge O’Connor’s action echoed his earlier issuance, on August 21, 2016, of a nationwide preliminary injunction against the enforcement by the federal government of Title IX of the Education Amendments of 1972 to protect transgender schoolchildren from discrimination, in State of Texas v. United States of America, 2016 WL 4426495 (N.D. Texas, August 21, 2016).  In both opinions, O’Connor rejected the Obama Administration’s position that discrimination because of gender identity or expression is a form of “sex discrimination” that is illegal under federal laws, a question that the U.S. Supreme Court may address if it gets to the merits in G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir.), cert. granted, 136 S. Ct. 2442 (No. 16A52)(2016).  Judge O’Connor’s analytical task was “simplified” because the ACA anti-discrimination provision, Section 1557, incorporates by reference the sex discrimination ban in Title IX that was the subject of the judge’s prior preliminary injunction ruling.

The ACA authorizes the Department of Health and Human Services (HHS) to adopt regulations through the procedures of the Administrative Procedure Act (APA) to give detailed substance to the broad terms of the statute. The ACA provides in Section 1557 that health programs or activities receiving federal financial assistance not discriminate on grounds prohibited by four federal statutes.  Title IX, which bans sex discrimination in educational programs receiving federal money, was one of the listed statutes and thus incorporated by reference into the ACA.  (Others deal with discrimination because of race, national origin or disability.)  The Title IX regulations adopted by the Education Department in the 1970s include an express religious exemption provision, so that religiously-controlled educational institutions are exempt from Title IX compliance to the extent that compliance would violate their religious tenets.  After the ACA was enacted in 2010, the Department of Health and Human Services began the APA process, drafting proposed regulations, publishing them for comment, and publishing a final regulation that, with respect to the provisions in dispute in this case, was to go into effect on January 1, 2017.  During the Obama Administration, several different federal agencies responsible for interpreting and enforcing sex discrimination bans have been working through the issue of how these relate to gender identity.  The Equal Employment Opportunity Commission (EEOC) was the first to issue a ruling, in the context of adjudicating a federal job applicant’s complaint, that gender identity discrimination was actionable under Title VII’s sex discrimination ban, but in so doing it was actually following earlier case law, most specifically from the 6th Circuit, which used sex stereotyping analysis first accepted by the Supreme Court in 1989 in Price Waterhouse v. Hopkins, a Title VII case.  The HHS regulation drafters adopted similar reasoning to include “gender identity” in their proposed regulation, and included gender identity in the final Rule published in the federal register on May 18, 2016.  81 Fed. Reg. 31376-31473 (codified at 45 CFR Sec. 92).  By the time of that publication, the Education Department had taken the position that Title IX bans gender identity discrimination, in the context of a restroom access dispute in the %Gloucester County School District% case and a subsequent “Dear Colleague” letter published on its website and distributed to school districts nationwide.  However, HHS did not include in its proposed or final rule the religious exemption language from Title IX.

Several states and some religious health care providers joined together to challenge the new HHS Rule, not in its entirety but in a focused attack on the inclusion of “gender identity” and “termination of pregnancy” in the non-discrimination provisions. Blatantly forum shopping, they filed their suit in the U.S. District Court in Wichita Falls, an outpost of the Northern District of Texas where Judge O’Connor, the only judge assigned to that courthouse, sits a few days every month. (O’Connor’s chambers are in Fort Worth, the location of his home courtroom.)  Filing in a major city would subject the plaintiffs to a random assignment of a judge; filing in Wichita Falls guaranteed that their case would be heard by Judge O’Connor. O’Connor, who was appointed by President George W. Bush, has a propensity to issue nationwide injunctions against regulatory actions of the Obama Administration on grounds that they exceed executive branch authority.  His August 21 preliminary injunction in the Title IX case was not his first.  There is no logical reason why this case should have been filed in the Wichita Falls court, but plaintiffs can claim proper venue there by pointing to local members of the co-plaintiff Christian Medical & Dental Association (CMDA), a national organization, who may reside within the geographical confines of the Wichita Falls court, or to local Texas state agencies whose operation in that area would be affected.  (The court does not engage in a venue analysis, despite the obvious forum-shopping.)  Other private plaintiffs are Franciscan Alliance, Inc. and its wholly owned entity Specialty Physicians of Illinois LLC.  The public plaintiffs are the states of Texas, Wisconsin, Nebraska, Kansas, Louisiana, Arizona, Kentucky and Mississippi.  The heavy hand of Texas Attorney General Ken Paxton looms over the litigation, since Paxton has said, in effect, that his job is to sue the federal government every day on behalf of the right of Texas to operate free of federal regulatory constraints. Plaintiffs moved for partial summary judgment or, in the alternative, a preliminary injunction, on October 21, 2016, and the court agreed to expedite briefing and hearing so as to be able to rule, at least on the preliminary injunction, before the Rule could go into effect on January 1.

There is a basic argument between the parties as to the requirements imposed by the Rule. The plaintiffs argue that under the rule they would be required to provide gender transition surgery and abortions or suffer liability to patients and potential loss of federal funding eligibility.  They claim that this would violate their rights under the Religious Freedom Restoration Act, and that the government’s interpretation of the ban on sex discrimination to cover “gender identity” and “termination of pregnancy” went beyond regulatory authority.  HHS argues that the rule does not compel either procedure in every case, merely banning discrimination on these bases.  Thus, for example, it could be argued, if a health care provider/institution performs mastectomies, it may not take the position that it will perform a mastectomy for a woman as a treatment for breast cancer but will not perform a mastectomy for a transgender man as part of his transition process, as this would be sex discrimination. Both women and transgender men are entitled to mastectomies.  Similar arguments are made for a variety of the component parts of procedures, including, for example, hormone therapy, sterilization procedures and the like.  A woman suffering an estrogen deficiency can receive hormone therapy, and so can a transgender woman; depriving the transgender woman of estrogen therapy because she was identified male at birth is sex discrimination.  In effect, argue the private plaintiffs, the non-discrimination requirement would inevitably require them to perform procedures that violate their religious views, and, argue the public plaintiffs, would require them to violate various state laws and regulations, such as banning the termination of pregnancies in state facilities or the use of state Medicaid funds for gender transition or pregnancy termination procedures.  Judge O’Connor agreed with the private plaintiffs that however the dispute over interpretation is resolved, there is a likelihood that their exercise of religion would be substantially burdened.

A portion of the decision, not detailed here, goes through the analysis of jurisdiction, ripeness and administrative exhaustion, finding that none of those doctrines would require a finding against the court’s jurisdiction to grant the requested relief on this motion. Proceeding to the merits, Judge O’Connor provided a detailed discussion of the tests for issuing a preliminary injunction.

First, as to likelihood of success on the merits, he found that Title IX does not on its face ban discrimination because of “gender identity” or “termination of pregnancy.” Most of the discussion focuses on the “gender identity” issue, and channels the discussion accompanying his August 21 preliminary injunction against Title IX enforcement in gender identity cases.  The discussion regarding the abortion issue focuses on the failure of HHS to incorporate in its new regulation the religious and abortion exemptions in existing Title IX regulations, arguing that Congress’s wording of the Section 1557 non-discrimination provision led to the conclusion that such incorporation was intended by Congress.

“The precise question at issue in this case is: What constitutes Title IX sex discrimination?” he wrote. “The text of Section 1557 is neither silent nor ambiguous as to its interpretation of sex discrimination.  Section 1557 clearly adopted Title IX’s existing legal structure for prohibited sex discrimination.  42 U.S.C. sec. 18116(a).  For the reasons set out more fully below, this Court has previously concluded: the meaning of sex in Title IX unambiguously refers to ‘the biological and anatomical differences between male and female students as determined at their birth.’  Texas v. United States, No. 7:16-cv-00054, 2016 WL 4426495, at *14 (N.D. Tex. Aug. 21, 2016).”  Judge O’Connor reinforced this reference with a citation to the federal district court ruling in %Johnston v. Univ. of Pittsburgh of Com. Sys. of Higher Educ.%, 97 F. Supp. 3d 657, 674 (W.D. Pa. 2015), %appeal dismissed% (Mar. 30, 2016), rejecting a Title IX gender identity discrimination claim by a transgender college student with restroom access issues, but omits reference at this point to the contrary ruling the 4th Circuit in the Gloucester County case.  Because he finds Title IX unambiguous on this point, he concludes that the HHS Rule is not entitled to Chevron deference that would normally be accorded a regulation adopted under the APA, and proceeds to apply his own interpretation of the statute, in which he finds Congress’s “binary definition of sex” to be shown by references in the statute to “students of one sex,” “both sexes,” and “students of the other sex.”  He also appeals to “ordinary meaning,” to the failure of Congress to spell out any intent to cover “gender identity,” and to the fact that as of the time the ACA was enacted, federal agencies had not yet begun to treat “gender identity” discrimination as cognizable under sex discrimination statutes.

He wrote that “even if, as Defendants argue, the definition of sex discrimination was determined in 2010 when the ACA incorporated Title IX’s prohibition of sex discrimination, the Court is not persuaded it was passed with the Rule’s expansive scope in mind because: (1) Congress knew how but did not use language indicating as much, and (2) in 2010 no federal court or agency had interpreted Title IX sex discrimination to include gender identity.” (To this point he quoted a Washington Post article from 2015 stating that the new HHS Rule “for the first time includes bans on gender identity discrimination as a form of sexual discrimination, language that advocacy groups have pushed for and immediately hailed as groundbreaking.”)  And, of course, he notes that before the ACA was passed and “for more than forty years after the passage of Title IX in 1972, no federal court or agency had concluded sex should be defined to include gender identity” in a Title IX case.  In a footnote, he rejected the government’s attempt to bolster its case by reference to Price Waterhouse, pointing out that it was Title IX, not Title VII, which was incorporated by reference into the ACA.

As to the failure of the Rule to incorporate Title IX’s religious exemption language, he wrote, “The text of Section 1557 prohibits discrimination ‘on the ground prohibited under Title IX of the Education Amendments Act of 1972 (20 U.S.C. 1681 et seq.).’ . . . That Congress included the signal ‘et seq.’, which means ‘and the following,’ after the citation to Title IX can only mean Congress intended to incorporate the entire statutory structure, including the abortion and religious exemptions.  Title IX prohibits discrimination on the basis of sex, but exempts from this prohibition entities controlled by religious organizations when the proscription would be inconsistent with religious tenets.  20 U.S.C. sec. 1681(a)(3).  Title IX also categorically exempts any application that would require a covered entity to provide abortion or abortion-related services. 20 U.S.C. sec. 1688.  Therefore, a religious organization refusing to act inconsistent with its religious tenets on the basis of sex does not discriminate on the ground prohibited by Title IX,” and any attempt by HHS to impose the non-discrimination requirement without including the religious exemption violates Congressional intent.  O’Connor bolstered this point by invoking the Supreme Court’s Hobby Lobby decision, finding that the Rule “places substantial pressure on Plaintiffs to abstain from religious exercise” by forcing them to provide services contrary to their religious tenets, and that the government’s desire to expand access to “transition and abortion procedures,” even if deemed a “compelling interest” for purposes of the federal Religious Freedom Restoration Act, was not the least restrictive alternative for providing such access, and thus failed under Hobby Lobby.  Taking his cue from Justice Samuel Alito’s opinion in that case, O’Connor pointed out that the government could offer to pay for transition and abortion services to be provided by those who did not have religious objections to them in order to avoid burdening the Plaintiff’s religious rights.

In another point worth noting, O’Connor cited to an HHS study showing that the medical community is not unanimous on the value and necessity of performing transition procedures, particularly on minors, undermining the “compelling interest” that the government must show under RFRA to justify substantially burdening health care providers with sincere religious objections to performing such procedures.

Having concluded that the plaintiffs were likely to succeed on the merits of their attack, O’Connor found that they easily satisfied the other requirements for preliminary injunctive relief, noting in particular that an ongoing investigation of the state of Texas’s practices made the potential of harm to the Plaintiffs more than hypothetical, as did the looming requirement for the private Plaintiffs to change the range of services they offer or risk loss of federal funding. More significantly, as to the scope of the injunction, he cited authority that “the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class,” and that “a nationwide injunction is appropriate when a party brings a facial challenge to agency action under the APA.”  In this case, he pointed out, “CMDA’s membership extends across the country and the Rule applies broadly to ‘almost all licensed physicians,’” quoting the HHS description published in the Federal Register.  “Accordingly, the Rule’s harm is felt by healthcare providers and states across the country, including all of CMDA’s members, and the Court finds a nationwide injunction appropriate.”  Noting a severability provision in the Rule, he observed that the injunction only applied to the inclusion of “gender identity” and “termination of pregnancy” under the definition of sex discrimination, and did not bar enforcement of any other part of the Rule.  A preliminary injunction stays in effect until the court issues a ruling on the merits, unless it is reversed on appeal.  As of December 31, the Obama Administration had barely three weeks left in office, to be succeeded by an administration much less likely to defend the Rule, so while this is merely preliminary relief for the Plaintiffs, it signals a major and probably long-term setback to efforts by transgender people to obtain non-discriminatory health care, including coverage for medically-necessary transition procedures.

Supreme Court Will Hear Title IX Transgender Discrimination Case and Case Challenging Social Media Restrictions on Sex Offenders

Posted on: October 30th, 2016 by Art Leonard No Comments

Supreme Court Will Hear Title IX Transgender Discrimination Case and Case Challenging Social Media Restrictions on Sex Offenders

The Supreme Court substantially enlivened its docket for the October 2016 Term on October 28 when it granted petitions for certiorari in Gloucester County School Board v. G.G., No. 16-273, and Packingham v. North Carolina, No. 15-1194.  In Gloucester, a school district in Virginia, obligated not to discriminate because of sex under Title IX of the Education Amendments Act of 1972, seeks review of the 4th Circuit’s decision, 822 F.3d 709 (2016), holding that the district court should defer to the U.S. Department of Education’s interpretation of a regulation on restrooms in educational facilities, 34 C.F.R. Sec. 106.33, that would require the school to let a transgender boy use the boys’ restroom facilities at his high school.  In Packingham, the petitioner seeks to overturn the North Carolina Supreme Court’s decision, 368 N.C. 380, 777 S.E.2d 738 (2015), upholding his conviction for violating North Carolina’s rules governing registered sex offenders by posting a message on Facebook.com celebrating the dismissal of a traffic ticket.  Lester Packingham claims that the broad prohibition of his use of social media violates his 1st Amendment rights.

The Gloucester Case

The Gloucester case was closely watched by LGBT lawyers and legal commentators for presenting the Court with a vehicle to respond to the broader question of whether federal laws prohibiting discrimination “because of sex,” mostly passed many decades ago, can now be construed to forbid gender identity discrimination (and maybe, also, sexual orientation discrimination), despite the obvious lack of intent by the enacting legislators in the 1960s and 1970s to reach such discrimination.  That is, to recur to a question repeatedly raised by the late Justice Antonin Scalia, are we governed by the intentions of our legislators or by reasonable interpretations of the actual texts they adopted in their statutes, or that administrative agencies subsequently adopted in regulations intended to aid in the enforcement of the statutes?  Scalia, who was an ardent foe of using “legislative history” as a method of statutory interpretation, decisively argued that courts should focus on the language of the statute, not viewed in isolation of course but rather in the context of the overall statute (including any declaration of congressional purpose contained in it), and he won unanimous concurrence by his colleagues in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), holding that a man employed in an all-male workplace could maintain an action for hostile environment sexual harassment under Title VII, even though it was unlikely that the enacting Congress in 1964 was thinking about same-sex harassment when it amended Title VII to add “sex” to the list of forbidden grounds for workplace discrimination.  Scalia wrote for the Court that we are governed by the statutory text, and thus Mr. Oncale could maintain his Title VII suit subject to his burden to prove that he was harassed “because of sex” as specified by the statute.  The Equal Employment Opportunity Commission (EEOC) has prominently cited and quoted from Justice Scalia’s Oncale opinion in its federal employment rulings of recent years (Macy, Lusardi, Baldwin) holding that discrimination because of gender identity or sexual orientation is “necessarily” discrimination “because of sex,” even though the 1964 Congress would not necessarily have thought so.  Although Gloucester does not directly involve Title VII, federal courts have generally followed Title VII precedents when they interpret the sex discrimination ban in Title IX, as the 4th Circuit explained in this case.

The controversy arose when fellow students and their parents objected to Gavin Grimm, a transgender boy, using the boys’ restrooms during fall term of his sophomore year, in 2014. The principal of the high school had given Grimm permission to use the boys’ restrooms, after being presented with the facts about Grimm’s transition and his discomfort with continuing to use the girls’ restrooms, since he was dressing, grooming, and – most significantly – strongly identifying as male.  Responding to the complaints, the Gloucester County School Board voted to establish a policy under which students were required to use the restroom consistent with their “biological sex” – the sex identified on their birth certificate – or to use a gender-neutral restroom, of which there were a few in the high school.  Grimm was dissatisfied with this turn of events and enlisted the American Civil Liberties Union (ACLU) of Virginia to sue the school board in the U.S. District Court for the Eastern District of Virginia, in Newport News.  The case was assigned to Senior U.S. District Judge Robert G. Doumar, who was appointed to the district court by President Ronald Reagan in 1981.  The plaintiff was identified in the original complaint as “G.G., by his next friend and mother, Deirdre Grimm,” but Gavin Grimm decided early on to be open about his role as plaintiff and has spoken publicly about the case.  The complaint relied on Title IX as well as the Equal Protection Clause of the 14th Amendment.

Ruling on a motion for a preliminary injunction by the plaintiff and a motion to dismiss by the defendants on September 17, 2015, 132 F. Supp. 3d 736, Judge Doumar found that Grimm could not win a ruling on the merits of his Title IX claim because, in the judge’s view, Title IX regulations expressly allowed schools to maintain separate restroom facilities for boys and girls based on “sex,” and so it was not unlawful for them to require Grimm to use restrooms consistent with his “sex” which, in the school district’s view, was female. He rejected the ACLU’s claim that he should defer to the U.S. Department of Education’s interpretation of the “bathroom regulation,” which was articulated in a letter that the Department’s Office of Civil Rights (OCR) sent in January 2015 as a “party in interest” in response to Grimm’s request for the Department’s assistance in his case.  OCR took the position, consistent with recent developments in sex discrimination law, that Grimm should be treated as a boy under the circumstances because it was undisputed that this was his gender identity, and thus under the regulation he was entitled to use the boy’s restroom, although he could also request as an accommodation to have access to gender-neutral facilities.   To Judge Doumar, the text of the regulation was clear and unambiguous, so the OCR’s attempt to ‘interpret’ the regulation in favor of Grimm’s claim was not entitled to deference from the court.  He wrote that deferring to the position articulated in the letter would allow OCR to “create a de facto new regulation.”   Doumar opined that if OCR wanted to change the regulation, it should go through the procedures set out in the Administrative Procedure Act, a time-consuming process that would result in a new or amended regulation that would then be subject to direct judicial review in the court of appeals.  As to the facts, Doumar referred to Grimm in his opinion as a “natal female” and seemingly was unwilling to credit the idea that for purposes of the law Grimm should be treated as a boy.  To Doumar, the case presented the simple question whether the school district had to let a girl use the boy’s restroom, and under the “clear” regulation the answer to that question was “No.”  While denying the preliminary injunction and dismissing the Title IX claim, Judge Doumar reserved judgment on the Equal Protection Claim.

Grimm appealed to the 4th Circuit, which reversed Judge Doumar in a 2-1 opinion on April 19, 2016.  Where Doumar saw clarity in the regulation, the 4th Circuit majority saw ambiguity, although a dissenting judge sided with Judge Doumar.  Although the regulation clearly said that schools could maintain separate restroom facilities for males and females, it said nothing directly about which restrooms transgender students could use, thus creating the ambiguity.  Unlike Judge Doumar, the 4th Circuit majority was unwilling to accept the School Board’s argument that a person’s sex is definitely established by their birth certificate.  The court took note of the developing case law in other circuits and in many district courts accepting the proposition that sex discrimination laws are concerned not just with genetic or “biological” sex but rather with the range of factors and characteristics that go into gender, including gender identity and expression.  Many federal courts (including several on the appellate level) have come to accept the proposition that gender identity and sex are inextricably related, that gender dysphoria and transgender identity are real phenomena that deeply affect the identity of people, and that transgender people are entitled to be treated consistent with their gender identity.  The court mentioned, in addition to the OCR letter, a December 2014 OCR publication setting forth the same view, which had been published on the Department of Education’s website.  Thus, the School District’s questioning of deference to an “unpublished letter” was not entirely factual, as the Department had previously published its interpretation on its website, and it was relying on an earlier ruling under Title VII by the EEOC in the Macy employment discrimination case, which was issued in 2012.

Having found that the regulation was ambiguous as to the issue before the court, the 4th Circuit relied on Auer v. Robbins, 519 U.S. 452 (1997), a Supreme Court decision holding that an agency’s interpretation of its own ambiguous regulation should be given controlling weight by the court unless the interpretation is “plainly erroneous or inconsistent with the regulation or statute.”  In other words, a reasonable agency interpretation of an ambiguous regulation should be deferred to by the court.  The 4th Circuit panel majority went on to find that the requirements of Auer were met in this case, and remanded the matter to Judge Doumar to reconsider his ruling.  The court’s discussion made clear what direction the reconsideration should take and stressed urgency. Judge Doumar reacted with alacrity, issuing the requested preliminary injunction on June 23.  The School Board sought a stay, which was denied by both Judge Doumar and the 4th Circuit, which also denied a petition for rehearing en banc. With the new school year looming, and desperate to avoid having to let Grimm use the boys’ restrooms during his final year of high school, the School Board petitioned the Supreme Court for a stay of the preliminary injunction, which was granted on August 3 by a vote of 5-3.  See 136 S. Ct. 2442.  Justice Stephen Breyer, taking the unusual step of issuing a brief statement explaining why he had voted for the stay along with the four more conservative members of the Court; said it was an “accommodation.”  There was speculation at the time about what that meant.  In light of the October 28 vote to grant the School District’s petition for certiorari, it probably meant that the four conservatives had indicated they would likely vote to grant a petition for certiorari to review the 4th Circuit’s decision, so in Breyer’s view it made sense to delay implementing the injunction and to preserve the status quo, as the case would eventually be placed on the Court’s active docket for the October 2016 Term (which runs through June 2017).  Breyer was careful to refrain from expressing any view about the merits in his brief statement.  After the School Board filed its petition for certiorari on August 29, the case generated considerable interest, attracting more than a dozen amicus briefs in support or opposition to the petition, including briefs from many states and from members of Congress.  There will undoubtedly be heavy media interest when the parties file their merits briefs with the Court, accompanied by numerous amicus briefs on both sides of the case.

The School Board’s petition to the Court posed three questions, first asking whether the %Auer% doctrine, which some of the Justices have signaled a desire to overrule, should be reconsidered; second asking whether under the Auer doctrine “an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought” merits deference; and third asking whether the Department’s interpretation of Title IX and the bathroom regulation should be “given effect”?  The Court granted the petition only as to the second and third questions, so there are not four members of the Court ready to reconsider Auer, at least in the context of this case.

The remaining questions give the Court different paths to a decision, one of which has minimal substantive doctrinal significance, while others could make this a landmark ruling on the possible application of federal sex discrimination statutes and regulations to discrimination claims by sexual minorities.

The Court might agree with the School Board that no deference is due to an agency position formulated in response to a particular case and expressed in an unpublished agency letter. This could result in a remand to the 4th Circuit for a new determination of whether Judge Doumar’s dismissal of the Title IX claim was correct in the absence of any need to defer to the agency’s interpretation, a question as to which the 4th Circuit majority has already signaled an answer in its discussion of the merits.

Alternatively, and more efficiently in terms of the development of the law, the Court could take on the substantive issue and decide, at the least, whether interpreting Title IX to extend to gender identity discrimination claims is a viable interpretation, in light of the Court’s seminal ruling in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that an employer’s use of sex stereotypes to the disadvantage of an employee’s promotion application was evidence of intentional discrimination because of sex.  It was that ruling that eventually led federal courts to conclude that because transgender people generally do not conform to sex stereotypes concerning their “biological” sex as determined at birth, discrimination against them is a form of “sex discrimination” in violation of such federal laws as the Fair Credit Act, the Violence Against Women Act, and Title VII of the Civil Rights Act.  The EEOC also relied on Price Waterhouse in reaching its conclusion that transgender plaintiffs could assert discrimination claims under Title VII, and the 6th and 11th Circuits have relied on it in finding that claims of gender identity discrimination by public employees should be treated the same as sex discrimination claims under the 14th Amendment’s Equal Protection Clause.

Were the Supreme Court to rule by majority vote that laws banning discrimination “because of sex” also “necessarily” cover discrimination because of gender identity, rather than issuing a narrower ruling focusing solely on Title IX, one could plausibly assert that the inclusion of “gender identity” in the pending Equality Act bill would not be, strictly speaking, necessary in order to establish a federal policy against gender identity discrimination under all federal sex discrimination laws. But it is possible that the Court might write a more narrowly focused decision that would in some way be logically restricted to Title IX claims. At least one district court, in a case involving a transgender student at the University of Pittsburgh, suggested that there were significant enough differences between workplaces and educational institutions to merit a different approach under Title VII and Title IX, especially noting that many of the students affected by Title IX are not adults, while most people affected by Title VII are older, more experienced, and less susceptible to psychological injury in the realm of sexual development.  There was the suggestion that sexual privacy concerns in the context of an educational institution are different from such concerns in the context of an adult workplace.  The Supreme Court has generally preferred to decide statutory interpretation cases on narrow grounds, so it is possible that a merits decision in this case would not necessarily decide how other sex discrimination laws should be construed.

This case will most likely be argued early in 2017, and it may not be decided until the end of the Court’s term in June. Thus, it is possible that Gavin Grimm could win but never personally benefit as a student at Gloucester County’s high school, since he may have completed his studies before the final decision is issued.  But, of course, if he goes on to college, a winning decision would personally benefit him in being able to use men’s restrooms if he attends a college subject to Title IX – unless, given another complication of our times, he decides to attend a religious school that raises theological objections to letting him use such facilities and seeks to rely on the Hobby Lobby decision to avoid complying with Title IX.  We suspect, however, that his higher education would likely avoid that complication!

The Supreme Court has not granted as many petitions as usual thus far this fall, leading to speculation that it is trying to avoid granting review in cases where the justices might be predictably split evenly on the outcome and thus would not be able to render a precedential decision. If the Senate Republicans stand firm on their position that President Obama’s nominee for the vacant seat, U.S. Court of Appeals Judge Merrick Garland, will not be considered for confirmation, it is possible that the Court will have only eight justices when the Gloucester case is argued.  A tie vote by the Court would leave the 4th Circuit’s decision in place, but it would not be precedential outside of the 4th Circuit.  If a newly-elected president nominates a new candidate and the confirmation process takes the average time of several months, a new justice would probably not be seated in time to participate in deciding this case, unless the Court voted to hold it over for re-argument.  (In the past, the Court has sometimes held new arguments in cases that were heard when the Court was shorthanded.  This happened once when Justice Lewis Powell missed many arguments due to ill health, and his colleagues left it up to him whether to participate in those cases, in some instances by holding new arguments.)  This raises the possibility that Grimm’s graduation from high school might be found to have mooted the case, resulting in a dismissal on jurisdictional grounds.  This wouldn’t be an issue, of course, had the lawsuit been filed by DOE and the Justice Department, but where the plaintiff is an individual, his standing remains an issue throughout consideration of the case.

The Packingham Case

In the Packingham case, the North Carolina Supreme Court, reversing a decision by the state’s court of appeals, held that a state law restricting certain on-line social media use by all registered sex offenders was neither facially unconstitutional nor unconstitutional as applied to the defendant, Lester Gerard Packingham.  The North Carolina court, which divided 5-2 on the case, concluded that the statute was a regulation of conduct that incidentally affects freedom of speech, thus subject to heightened but not strict scrutiny, and that it survived such review due to the state’s important interest in protecting minors from sexual exploitation and to the measures taken by the legislature to narrow the scope of on-line communications that would be affected.

Packingham was convicted in 2002 of a sexual offense involving a minor. The opinion for the Supreme Court by Justice Robert H. Edmunds, Jr., does not specify the nature of the offense, but a reference in the dissenting opinion suggests it did not involve violence.  He did, however, have to register as a sex offender.  In 2008, the state legislature amended the sex offender registration law to make it a crime for a registered sex offender to “access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.”  The statute included a detailed definition of the characteristics of the kinds of sites that would be prohibited, and explicitly exempted various kinds of websites.  In effect, the ban is on sites where a registered sex offender might be able to identify and communicate directly with minors.  Sites that require individuals to be at least 18 years old in order to be members would not be affected by the ban, for example, and those that limited their services to things like commercial transactions for selling goods were also exempted.  After the law was passed, a written notice was sent to all registered sex offenders in the state advising of these new restrictions to which they must comply.  There was evidence in this case that Packingham received the notice.

In 2010 a Durham police officer began an investigation to determine whether any local registered sex offenders were violating the new law. His investigation uncovered the fact that Packingham was maintaining a facebook.com page under an assumed name and had posted messages to it, most recently a message celebrating his escape from traffic ticket liability.  The investigation did not, apparently, uncover any communications by Packingham to minors using facebook.com.  Packingham was indicted for violating the statute, and moved to dismiss the charges on 1st Amendment grounds.  The trial judge denied the motion, finding the statute constitutional as applied to Packingham while declining to rule on Packingham’s facial challenge to the statute, and he was convicted by a jury and sentenced to 6-8 months, suspended for a year while on probation.  Packingham appealed.  The court of appeals reversed, finding that the statute was unconstitutional on its face and as applied, too broadly sweeping in its effect on the free speech rights of registered sex offenders, and unduly vague.

The North Carolina Supreme Court totally rejected the court of appeals’ analysis. For one thing, the court found that the statute regulated conduct (the act of accessing the social media), not directly speech, although it clearly has an incidental effect on the ability of a sex offender to engage in speech activities using social media.  But the court decided that under the “heightened scrutiny” approach for evaluating regulations of conduct that incidentally affect speech, this statute survived because of the important state interest in protecting children, and the legislature’s care in tailoring the prohibition to focus on the kinds of social media where those so inclined could identify and communicate with minors.  The court concluded that this left open a wide variety of social media and other internet forums in which sex offenders were free to participate, and that the statute (and the notices to sex offenders) were written in such a way that somebody who sought to comply with the statute could determine which social media were off-limits.  Nobody disputed that accessing facebook.com was prohibited under this law, for example, and the court concluded that Packingham knew that facebook.com was off-limits for him, as reflected by his opening an account in an assumed name.  (What gave him away was that his photograph on the site matched the photographic depiction on his sex offender registration form.)  The court acknowledged that several similar laws in other states had been declared unconstitutionally, but sought to distinguish them as not being as fine-tuned as the North Carolina law in terms of the kinds of websites that were made off-limits.

The dissent was written by Justice Robin E. Hudson, joined by Justice Cheri Beasley. She disputed the majority’s conclusion that this was a regulation of conduct, but she determined that didn’t make much difference because she concluded that even under the standard of review used by the majority, the statute failed as overly broad and vague.  Restricting all sex offenders without regard to the nature of their offenses, for example, undercut the state’s justification of protecting minors.  Many people are required to register who committed offenses that do not involve minors, and who have no sexual interest in minors. Why, then, is the state restricting their 1st Amendment activities if its articulated justification for the restriction is to protect minors?  She also pointed out that there is no requirement that their offense leading to registration status involved using a computer, so why is their computer access being restricted?  Further, she contested the majority’s conclusion about how narrowly tailored the restriction is.  She pointed out that, literally applied, it could bar somebody from using amazon.com, because that website makes it possible for users to create profile pages including contact information facilitating communications between users with common interests.  Indeed, she pointed out that some websites allow minors to register with the approval of their parents.  One such is the largest circulation daily newspaper in North Carolina, so theoretically Packingham could be barred from accessing the newspaper on-line.  She argued that the law is both facially unconstitutional and unconstitutional as applied to Packingham.

In petitioning the Supreme Court for review, Packingham’s counsel wrote: “The statute singles out a subclass of persons, who are subject to criminal punishment based on expressive, associational, and communicative activities at the heart of the First Amendment, without any requirement that their activity caused any harm or was intended to.” The certiorari grant extends to the questions of whether the law is facially unconstitutional or just unconstitutional as applied to Packingham.  The case has the potential to bring into question numerous state laws that seek to regulate the expressive activities of sex offenders in the name of protecting minors.  Nobody argues that the state does not have a significant interest in protecting minors from sexual exploitation, or that the internet has created new opportunities for adults who are sexually interested in minors to locate and communicate with them.  At issue is how broadly such laws may sweep.  Should the laws pay more attention to the nature of sex offenses leading to registration in deciding whose activities should be restricted, and how narrowly tailored must the restrictions be to avoid subjecting individuals to long-term (even life-long in some cases) restrictions on their ability to use one of the main vehicles for communication in the 21st century without substantial justification for the limitation.  The petition was supported by an amicus brief from professors concerned with the law’s substantial burden they perceived on communicative freedom imposed by the statute.  Interestingly, N.C. Attorney General Roy Cooper did not want to bother responding to the certiorari petition, and filed a waiver of the right to respond on April 6, but then was requested to respond after the amicus brief was filed, and ultimately filed a response on June 30.

The interests of LGBT people are significantly implicated by this dispute. Even after the Supreme Court declared in 2003 that laws against gay sex were not enforceable against individuals engaged in private, adult consensual activities, there is a not inconsiderable number of gay people, especially men, who are still affected by sex registration requirements in many states based on pre-2003 criminal convictions and continuing enforcement of laws involving solicitation, conduct in public, prostitution, and, of course, intergenerational sex.  Many offender registration laws sweep broadly encompassing a wide variety of activity that is not specifically protected under the U.S. Supreme Court’s Lawrence v. Texas ruling, and litigation is ongoing challenging the continued registration requirements imposed in some jurisdictions on people whose offender status is based on pre-Lawrence convictions for conduct that may no longer be criminalized.  In this connection it is notable that there are still several states that have not legislatively reformed their sex crimes laws to comply with the Lawrence ruling, as a result of which law enforcement officials continue to make arrests for constitutionally protected conduct.

 

Gay and Trans Plaintiffs Advance Title VII Discrimination Claims Using Sex Stereotyping Theory

Posted on: October 10th, 2016 by Art Leonard No Comments

Two federal trial courts have allowed Title VII claims by law enforcement officers, one gay and the other transgender, to proceed over employer protests early in October. On October 4, U.S. District Judge Jennifer A. Dorsey granted summary judgment to Bradley Roberts, a transgender man employed as a police officer by the Clark County School District in Nevada, on his claim of gender discrimination in violation of Title VII and the Nevada Equal Rights Law, while referring claims of harassment and retaliation to a magistrate judge for trial.    Roberts v. Clark County School District, 2016 U.S. Dist. LEXIS 138329, 2016 WL 5843046 (D. Nevada).  On October 7, Chief U.S. Magistrate Judge John E. Ott of the Northern District of Alabama denied the City of Pleasant Grove’s motion to dismiss a Title VII claim by an openly gay man, Lance Smith, who had been discharged from the city’s Police Department.  Smith v. City of Pleasant Grove, 2016 U.S. Dist. LEXIS 139575, 2016 WL 5868510 (N.D. Alabama).  In both cases, the judges referred to the Supreme Court’s 1989 decision, Price Waterhouse v. Hopkins, 490 U.S. 228, which endorsed the view that employees who suffered adverse consequences because of their failure to comply with the employer’s sex-stereotypical views could sue for sex discrimination under Title VII.

In 2012, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII, issued an administrative decision finding that the statute forbids gender identity discrimination, and the EEOC issued a similar ruling regarding sexual orientation discrimination in 2015. The EEOC rulings relied upon and extended the sex-stereotyping theory.  The agency’s rulings are not binding on the federal courts, but federal trial judges have begun over the past year to acknowledge them and, in some cases, to follow their reasoning.

The Clark County School District first hired Bradley Roberts as a campus monitor in 1992. At that time Roberts was known by a female name and hoped to become a police officer. Roberts graduated from a law enforcement academy in 1994 and was then hired by the District to be a police officer, a position Roberts held without incident for seventeen years until he began to transition.

In 2011, Roberts began dressing as a man, grooming as a man, and identifying himself as a man. He started using the men’s bathroom at work, leading to complaints from some of the other officers.  His commanding officers confronted him for an explanation, which he gave, explaining that he was transgender and in the process of transitioning.  He said he wanted to be known henceforth as Bradley Roberts and to use the men’s bathrooms.  They told him he could not do so, but that because he now appeared as a man, he should also refrain from using the women’s bathrooms.  There were some gender-neutral bathrooms in the District schools, and he was instructed to use them “to avoid any future complaints.”  Roberts followed up by sending  a letter to his superiors summarizing what he had told them and again expressing his desire to be called Bradley Roberts, for co-workers to use male pronouns in referring to him, and he promised to comply with the men’s grooming code for the District police force.

Roberts’ letter prompted another meeting with his superiors and his union representative. His request to use men’s bathrooms was again denied, and he was told he would not be referred to as a man or allowed to use the men’s bathrooms until he could provide official documentation of a name and sex change.  However, two days later, at yet another such meeting, he was told that the District would allow him to use a man’s name informally, but all “official and formal documents” would continue to use his female name until he got a court-ordered name change and processed it through the Human Resources department.  He would still be required to use only the gender-neutral bathrooms.

 

Roberts then received a proposed memo summarizing these arrangements, including his concern that co-workers and commanding officers be cautioned that asking “below the belt” questions about his anatomy “may constitute sexual harassment.” Roberts thought this memo was only going to be distributed among supervisors and managers, and claims he was “blindsided” when it went by email to everybody in the Department, generating questions and what he considered to be harassing conduct from some co-workers.

In December 2011, a court granted his name change petition, he updated his driver’s license to reflect his name and gender, and he submitted paperwork to Human Resources, which resulted in yet another email going out to the entire department explaining his name change and stating that it would take effect for purposes of his official records. However, he subsequently discovered that he was still listed as “female” on the new insurance card he was issued for 2012.

Roberts then filed a discrimination complaint with the Nevada Equal Rights Commission, alleging gender identity discrimination in violation of state law. (Nevada’s statute specifically includes gender identity.)  He cited the bathroom ban as discriminatory, and described several incidents, including the meetings with supervisors as harassment.  The District claimed that the steps it had taken had resolved any problem and refused to participate in mediation with the NERC, but in the face of a scheduled hearing the District issued a new bathroom policy, allowing Roberts to use the men’s bathrooms.  NERC then closed Roberts’ discrimination case as “moot,” but he filed a second charge, citing the bathroom ban, offensve comments from co-workers, and the department-wide emails that had essentially “outed” him to the Department without his permission.  He also alleged retaliation for filing the earlier charges and improper questions, comments and gestures by co-workers.  Ultimately he received a “right-to-sue” letter from the EEOC and sued the District in federal court.

In response to motions for summary judgment, Judge Dorsey undertook a thorough historical review of the treatment of gender identity under Title VII, emphasizing how the 9th Circuit Court of Appeals, which has appellate jurisdiction over the federal trial courts in Nevada, has embraced a broad understanding of sex discrimination under Title VII and other federal laws, such as the Violence Against Women Act.  She explained how the Price Waterhouse case had generated a growing body of decisions in other circuits allowing gender identity claims under Title VII in reliance on the sex stereotyping theory, and she noted the EEOC’s decisions in 2012 and 2015 extending this to bathroom access for transgender employees.

“I join the weight of authority and hold that discrimination against a person based on transgender status is discrimination ‘because of sex’ under Title VII,” she wrote, continuing that “because it appears that the Ninth Circuit would hold that gender-identity discrimination is actionable under Title VII, I see no reason to depart from the heavy weight of this authority. Nothing in the few contrary decisions cited by the school district persuades me otherwise.  The contrary Seventh and Tenth Circuit decisions provide no cogent analysis of Title VII’s language or the Supreme Court case law,” as they relied heavily on outdated precedents.  Further, she concluded that Roberts was entitled to summary judgment on his sex discrimination claims, because it was clear that he had suffered discrimination on that basis at the hands of the District.

“Direct evidence established the department’s discriminatory intent here,” wrote Judge Dorsey. “It banned Roberts from the women’s bathroom because he no longer behaved like a woman.  This alone shows that the school district discriminated against Roberts based on his gender and sex stereotypes.  And the department also admits that it banned Roberts from the men’s bathroom because he is biologically female.  Although CCSD contends that it discriminated against Roberts based on his genitalia, not his status as a transgender person, this is a distinction without a difference here.  Roberts was clearly treated differently than persons of both his biological sex and the gender he identifies as – in sum, because of his transgender status.”

Dorsey found that the bathroom ban was “an adverse employment action,” that Roberts was treated differently than similarly situated employees, and that the District failed to articulate a legitimate non-discriminatory reason for restricting his bathroom use.

However, she found that factual disputes precluded granting summary judgement on the harassment and retaliation claims, since there was a dispute about whether the conduct experienced by Roberts was sufficiently severe to meet the harassment standard or whether any adverse treatment he experienced was actually a response to his complaining about his treatment. Thus, summary judgment was denied as to those charges, and the judge referred them to a magistrate judge for further proceedings to resolve those factual disputes.

The Smith case involves straightforward sexual orientation discrimination by a local Alabama police department. Lance Smith interviewed with Lt. Jennifer Fredrick for an available position in the Pleasant Grove Police Department (PGPD) in 2014.  She told him he would be offered a position at a specific salary.  At the end of the interview, Smith told Fredrick that he is gay and has a same-sex partner.  Smith says that Fredrick’s demeanor immediately changed and she advised him to “reconsider” his desire to work in the PGPD.  However, after the interview Smith received an email from Fredrick informing him that “his homosexuality would not be an issue,” wrote Judge Ott.  This was evidently untrue, to judge by subsequent events related by Smith in his Title VII complaint.

After Smith completed the required physical exam, he was directed to meet with the Chief of Police, Robert Knight, who told him he would receive a lower salary than he had been promised by Lt. Fredrick. In his complaint, he claims he was paid $5,000 less than other new recruits.  Smith claims that he received only two weeks of field training instead of the three normally provided to new recruits, and then was assigned to a night shift patrol on his own rather than the usual assignment for new officers to patrol with a partner.  Smith claims that he was informed by the night shift sergeant that “Lt. Fredrick had instructed the sergeant to write down everything Smith did wrong so Lt. Fredrick could fire him.”  Smith says another officer warned him to be “careful” because a police corporal was a “homophobe.”

After a few months, Lt. Fredrick told Smith he was “not going to work out” and needed to resign, but refused to tell him what he had done wrong. In fact, he claims, she told him he was a good officer and would find another department that would “fit” him better.  Fredrick gave him a previously-prepared resignation letter and told him he would be grounded, suspended, and then fired if he did not resign.  Smith signed the letter and attempted to find police work elsewhere in the county, relying on Fredrick’s statement that she would advise prospective employers and the Jefferson County Personnel Board that he resigned in good standing, but he claims he was unable to find employment because Knight and Fredrick had “falsely reported that he was an unsatisfactory employee.”

Smith filed a sex discrimination charge with the EEOC, which issued him a right to sue letter. He filed his suit on March 1, 2016, claiming he was subjected to “discriminatory terms and conditions of employment because of his sexual orientation, and stereotypes associated with his sex and his gender,” in violation of Title VII.  He also alleged a violation of his rights under the Equal Protection Clause of the 14th Amendment, and asserted a state tort claim that the City, Knight and Fredrick had interfered with his “contractual or business relationship with prospective employers” by giving him a bad employment report.  The defendants moved to dismiss on various grounds, including the claim that Title VII does not apply to his case.

“Traditionally, court in this circuit have held that Title VII does not provide a remedy for discrimination based on sexual orientation,” wrote Judge Ott, citing a long list of cases, and adding a list of cases from other circuits with similar holdings. “The Equal Employment Opportunity Commission, however, recently concluded that ‘an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII,’” he wrote, and “at least one court in this circuit, noting that the question is an ‘open one,’ has agreed with the EEOC and has found that ‘claims of sexual orientation-based discrimination are cognizable under Title VII.’”

More importantly, wrote Ott, “Smith has also alleged discrimination based on his failure to conform to sex and gender stereotypes.” While Ott rejected Smith’s argument that discrimination based on his association with his male partner is prohibited sex discrimination, he found that the 11th Circuit, which has appellate authority over federal courts in Alabama, had accepted a broad view of sex discrimination in the Brumby case in 2011, involving a transgender state employee asserting an equal protection claim.  In that case, the 11th Circuit relied on sex-stereotype theory to conclude that Brumby had a valid equal protection claim, finding that his claim should be analyzed under the same “heightened scrutiny” standard used for sex discrimination claims.

“In his amended complaint,” wrote Ott, “Smith alleges that ‘sexual and gender-stereotyping comments’ were made to him during his employment with the Pleasant Grove Police Department, including the comment that ‘men should be men,’ which led him to conclude that other members of the department did not feel that he was ‘manly’ enough to be a police officer. He also alleges that other officers made jokes about his attire and mannerisms.  These factual allegations are ‘enough to raise a right to relief [under Title VII] above the speculative level,’” Ott continued, citing a Supreme Court ruling on the required factual allegations to ground a civil complaint.  “They are sufficient to allow the court to draw the reasonable inference that the City of Pleasant Grove could be liable for discriminating against Smith because of his failure to conform to sex and gender stereotypes.”  Thus, Ott refused to dismiss the Title VII claim, which will next proceed to discovery.

However, Ott dismissed the Equal Protection claim, asserting that Smith had failed to allege facts that would support an inference that he was denied equal protection of the laws because he failed “to adequately allege the existence of a similarly situated comparator, an essential component of an equal protection claim. To prevail on his equal protection claim, Smith must show ‘a satisfactory comparator who was in fact similarly situation and yet treated differently.’”  Ott found two relevant allegations in Smith’s complaint: that he was paid less than “similarly situated employees” and that he was “singled out because of his association with his male partner while similarly situated employees were not.” But Ott found that Smith had failed to identify particular specific “similarly situated employees” to illustrate these claims.  “He does not identify a single comparator who was allegedly treated more favorably than he was,” concluded Ott.

However, Judge Ott refused to dismiss Smith’s claim against Chief Knight and Lt. Fredrick in their individual capacities for “interference with a contractual or business relationship,” rejecting their argument that any adverse comments they made were privileged due to the city’s relationship with the county personnel board. “In their individual capacities,” wrote Ott, “Chief Knight and Lt. Fredrick did not have a ‘legitimate economic interest in and a legitimate relationship to’ any contract of business relationship Smith might secure through the Jefferson County Personnel Board.”  On the other hand, Ott rejected Smith’s claim that the City could be held liable for maintaining an “official custom or policy” of discrimination, finding insufficient factual allegations to support such a claim.

Bradley Roberts is represented by a team of lawyers led by Jason Maier of Las Vegas, with amicus assistance from Lambda Legal staff lawyers and cooperating attorneys. Lance Smith is represented by Cynthia Wilkinson of Birmingham, Alabama.

Judge Dorsey was appointed by President Barack Obama. Judge Ott was appointed by President Bill Clinton.

Federal Court Rejects Transgender Citizen’s Complaints of Unconstitutional Treatment by NYPD Officers

Posted on: October 1st, 2016 by Art Leonard No Comments

In a decision notably lacking in empathy for transgender people and the slights and humiliations they suffer on a regular basis, U.S. District Judge Gregory H. Woods granted New York City’s motion to dismiss a complaint by Marlow White, self-identified as a man of transgender experience, that his 14th Amendment rights were violated by NYPD officers and the City when the police failed to respond to the continued verbal harassment of White by Napoleon Monroe, a man who frequented the neighborhood where White lived and made various threats against him as well as subjecting him to verbal harassment.  White v. City of New York, 2016 WL 4750180 (S.D.N.Y., Sept. 12, 2016).

According to the court’s summary of the factual allegations, the police officers who were summoned by White when he was continually accosted by Monroe were blatantly transphobic, treating him as somebody unworthy of respect and suggesting that until somebody was seriously injured, they would not lift a finger to help.

Among other things, Judge Woods’ opinion concludes that in the absence of a 2nd Circuit ruling holding that gender identity is a suspect classification (or, as the judge phrases it, that discrimination against transgender people is a form of sex discrimination and thus subject to heightened scrutiny review, as the 11th but not the 2nd Circuit has held), the refusal of police officers to take White’s complaints or do anything to stop Monroe’s harassment of him is subject only to rational basis review.  Under that standard, Woods found that the discretionary decision by police officers not to arrest somebody who had yet to commit a violent crime against the complainant was not so arbitrary as to lose them the shield of qualified immunity.

Furthermore, the judge found that under Due Process jurisprudence the police officers had no obligation to prevent one citizen from subjecting another to verbal harassment and threats, so long as the police were not enabling or encouraging actual harm to the complainant.

The judge found that White’s allegations of past incidents involving the police and their dealings with transgender people were not sufficient to document some sort of official NYPD policy of disparate treatment of transgender people that would be necessary to impose municipal liability, or of a failure to properly train the police about how to interact with transgender people. One suspects that transgender rights organizations could supply a panoply of evidence about police disrespect for the human rights and dignity of transgender people, but unfortunately the evidence presented in response to this dismissal motion seems to have been minimal.

“White’s conclusory allegations regarding the City’s alleged failure to train its police officers fail to state a claim,” wrote the judge.  “He states that ‘adequate training regarding issues peculiar to persons of trans experience will make it substantially less likely that the rights of persons of trans experience will be violated.  But the facts in the Amended Complaint do not plead a pattern of similar constitutional violations, such that the City was on notice that different, or additional, training was needed.”  Quoting a Supreme Court ruling, Connick v. Thompson, 563 U.S. 51, 62 (2011), “Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.”  Judge Woods found that White “has failed to establish a history of NYPD officers mishandling situations involving persons of trans experience such that the City was deliberately indifferent by failing to provide the unspecified training that he desires.  Accordingly, because White has failed to allege either a widespread practice or a failure-to-train claim, his Monell claim is dismissed without prejudice.”

White is represented by Donald Robert Dunn, Jr., of the Bronx.  The dismissal without prejudice suggests that he could come back with a new complaint on the municipal liability issue if he can put together a more complete factual record of the NYPD’s failure to provide non-discriminatory law enforcement protection to trans citizens.

But we suspect that if top management officials in the NYPD, the Corporation Counsel’s office and the De Blasio Administration took the time to read Judge Woods’ summary of White’s factual allegations, they might quickly conclude that it would be prudent to provide appropriate training at the precinct level to NYPD officers on how to deal sensitively with such issues, as a matter of good public policy if not constitutional obligation.  After all, the articulated goal of the city administration is to improve the quality of life of NYC residents by cultivating a collaborative relationship between the citizenry and the law enforcement community.  And, it is possible that the 2nd Circuit will eventually decide that gender identity discrimination is a form of “sex discrimination,” as the 11th Circuit, the EEOC and other federal agencies have concluded, and the activities of the NYPD in this regard will be subjected to heightened scrutiny in appropriate cases.

Two Federal Judges Order Public Schools to Let Transgender Students Use Gender-Appropriate Restrooms

Posted on: September 27th, 2016 by Art Leonard No Comments

Within days of each other, two federal district judges have issued preliminary injunctions requiring public schools to allow transgender students to use restrooms consistent with the students’ gender identity. U.S. District Judge Algenon L. Marbley of the Southern District of Ohio, based in Cincinnati, issued his order on September 26 against the Highland Local School District on behalf of a “Jane Doe” 11-year-old elementary school student, in Board of Education v. U.S. Department of Education, 2016 U.S. Dist. LEXIS 131474, 2016 WL 5239829.   U.S. District Judge Pamela Pepper of the Milwaukee-based Eastern District of Wisconsin, issued her order on September 22 against the Kenosha Unified School District on behalf of Ashton Whitaker, a high school student, in Whitaker v. Kenosha Unified School District No. 1, 2016 U.S. Dist. LEXIS 129678, 2016 WL 5372349.  Jane Doe is a transgender girl, Ashton Whitaker a transgender boy.

Although both cases are important, producing essentially the same results under Title IX and the Equal Protection Clause of the 14th Amendment, Judge Marbley’s ruling is more significant because the judge sharply questioned the jurisdictional basis for a nationwide injunction issued on August 21 by U.S. District Judge Reed O’Connor of the Northern District of Texas, Wichita Falls, which ordered the Obama Administration to refrain from initiating investigations or enforcement of violations of Title IX of the Education Amendments of 1972 based on gender identity discrimination.  O’Connor was ruling in a case initiated by Texas in alliance with many other states challenging the validity of the Obama Administration’s “rule” that Title IX, which prohibits sex discrimination by educational institutions that receive federal funds, prohibits gender identity discrimination and requires schools to allow transgender students to use facilities consistent with their gender identity.

Neither the Highland nor Kenosha cases were affected by O’Connor’s order in any event, since these cases were already under way before O’Connor issued his order and they involved district court complaints filed by the individual plaintiffs, not by the Department of Education.

The Doe v. Highland case before Judge Marbley is in part a clone of the Texas case pending before O’Connor. When a dispute arose about the school’s refusal to allow a transgender girl to use the girls’ restrooms and the Department of Education became involved in response to a complaint by the girl’s parents, the school district, abetted by Alliance Defending Freedom (ADF), the “Christian” law firm that is also providing representation to other challengers of the Administration’s position, rushed into federal district court to sue the Department of Education and seek injunctive relief.

As the case progressed, Jane Doe’s parents moved on her behalf to intervene as third-party plaintiffs against the school district. ADF pulled in many of the states that are co-plaintiffs in the Texas case and a clone case brought in federal district court in Nebraska, and moved to make them amicus parties in this case.  At the same time, pro bono attorneys from Pillsbury Winthrop Shaw Pittman LLP, a large firm based in Washington, D.C., together with local counsel from Columbus, Ohio, organized an amicus brief by school administrators from about twenty states in support of Jane Doe.  After being allowed to intervene as a plaintiff, Doe moved for a preliminary injunction to require the Highland Schools to treat her as a girl and allow her to use appropriate restrooms.

Judge Marbley first confronted the federal government’s argument that the court did not have jurisdiction over the Highland school district’s attack on the Administration’s interpretation of Title IX. Unlike Judge O’Connor in Texas, Judge Marbley concluded that the government was correct.  If a school district wants to attack the government’s interpretation of Title IX, he found, it must do so in the context of appealing an adverse decision by the Department of Education ordering it to comply with the interpretation or risk losing federal funding.  Marbley pointed out that under the administrative process for enforcement of Title IX, no school would lose funding before a final ruling on the merits is rendered, a process that would involve administrative appeals within the Department followed by an appeal to the U.S. Court of Appeals with a potential for Supreme Court review of a final ruling by the court.  Thus, the school district had no due process argument that it stood to lose funding without being able to seek judicial relief if it were deprived of the ability to sue directly in the district court.  Marbley found that there was no authorization under the statute or the Administrative Procedure Act (APA) for a school district to file a lawsuit directly in federal district court challenging an interpretation of Title IX.

Part of ADF’s argument in its lawsuits challenging the Obama Administration’s guidance to the school districts is that by not embodying this interpretation in a formal regulation, the Administration had improperly evaded judicial review, since the APA authorizes challenges to new regulations to be filed promptly in federal courts of appeals after final publication of the regulation in the Federal Register. ADF argued that the Guidance was, in effect, a regulation masquerading as a mere “interpretation.”  Judge O’Connor bought the argument, but Judge Marbley did not.

Marbley was dismissive of Judge O’Connor’s determination that he had jurisdiction to hear the Texas case. “The Texas court’s analysis can charitably be described as cursory,” he wrote, “as there is undoubtedly a profound difference between a discrimination victim’s right to sue in federal district court under Title IX and a school district’s right to challenge an agency interpretation in federal district court.  This Court cannot assume that the first right implies the second.”  Marbley went on to discuss in detail Supreme Court rulings on the question whether there was a private right of action under various federal statutes that did not expressly authorize lawsuits in the district courts, and the circumstances under which such authorization can be found by implication, as the courts have done to allow students to file Title IX lawsuits.  Marbley rejected the Highland school district’s argument that once Jane Doe had intervened, she would provide a basis for the court to assert jurisdiction over the school district’s claim.  Actually, he pointed out, the school district could raise its arguments against the Obama Administration’s interpretation of Title IX in response to Jane Doe’s lawsuit, and need not maintain a lawsuit of its own.  Thus, he concluded, the school district’s complaint should be dismissed on jurisdictional grounds.

In both cases, the attorneys for the transgender students argued alternatively under Title IX and under the Equal Protection Clause. In both cases, they argued that because gender identity discrimination is a form of sex discrimination, the Equal Protection analysis should receive the same “heightened scrutiny” that courts apply to sex discrimination claims, which throws the burden on the government to show that it has an exceedingly important interest that is substantially advanced by the challenged policy.

Here the cases diverged slightly in the judges’ legal analysis. Both judges found that the transgender plaintiffs were likely to succeed on the merits of their claims under both Title IX and the Equal Protection clause, that they were suffering harm as a result of the challenged policies, and that any harm the school districts would suffer by issuance of preliminary injunctions was outweighed by the plaintiffs’ harm if injunctions were denied.  In addition, both judges found that the injunctions were in the public interest.  But Judge Marbley additionally found that heightened scrutiny applied, while Judge Pepper, more conservatively, reached her conclusion by applying the rational basis test.  In either case, however, the judges found that the school districts’ justifications for their exclusionary policies lacked sufficient merit to forestall preliminary relief against them.

Significantly, Judge Marbley’s conclusion that heightened scrutiny applied to this case drew support from the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.  He used Obergefell to question the continuing relevance of prior court of appeals analyses of equal protection “in light of Obergefell’s emphasis on the immutability of sexual orientation and the long history of anti-gay discrimination. Like the district courts that examined suspect classification based on sexual orientation,” he continued, “this Court will proceed to conduct its own analysis of the four-factor test to determine whether heightened scrutiny applies to a transgender plaintiff’s claim under the Equal Protection Clause.”  Marbley based his analysis of the four-factor test on a district court ruling last year in New York, Adkins v. City of New York, which found all factors to be satisfied to justify heightened scrutiny, including a finding that “transgender people have ‘immutable and distinguishing characteristics that define them as a distinct group” for purposes of analyzing their equal protection claims.

Significantly, both judges accorded great weight to the Obama Administration’s Guidance, and both judges also found persuasive the Richmond-based 4th Circuit Court of Appeals’ ruling in the Gavin Grimm case that district courts should defer to the Administration’s interpretation due to the ambiguity of existing regulations about how to deal with transgender students under Title IX.  In light of such ambiguity, the federal administrators would enjoy deference so long as they adopted an interpretation of the statute and regulations that is not inconsistent with the purpose of the statute.  The judges rejected the argument that because Congress in 1972 did not intend to ban gender identity discrimination, administrators and judges decades later could not adopt such an interpretation of “discrimination because of sex.”

Although the Supreme Court has stayed the injunction issued by the district court in the Gavin Grimm case while the Gloucester (Virginia) school district’s petition for review of the 4th Circuit’s ruling is pending before the Supreme Court, Judge Marbley pointed out that the stay does not affect the status of the 4th Circuit’s decision as a persuasive precedent.  He also pointed out the unusual step taken by the Justice Stephen Breyer of writing that he had agreed to provide the necessary fifth vote for a stay to “preserve the status quo” as a “courtesy” to the four conservative justices.  The Highland school district argued that the stay “telegraphed” that the Supreme Court was going to grant review of the 4th Circuit’s decision, but, wrote Marbley, “even if Highland has somehow been able to divine what the Supreme Court has ‘telegraphed’ by staying the mandate in that case, this Court unfortunately lacks such powers of divination.”  Furthermore, he wrote, “This Court follows statements of law from the Supreme Court, not whispers on the pond.”

Judge Marbley also accorded great weight to the amicus brief filed on behalf of school administrators from around the country. In this brief, they explained how they had implemented the policies required by the Education Department to accommodate transgender students.  They pointed out that allowing transgender students to use appropriate facilities had not created any real problems.  They argued that this was a necessary step for the mental and physical health of transgender students, and did not really impair the privacy of other students.  Furthermore, in the more than twenty school districts joining in this brief, the new policy had not in any case led to an incident of a sexual predator gaining access to a restroom under the pretext of the policy and harming any student.  Thus, while acknowledging that school districts can be legitimately concerned about the health and safety of students, the courts could conclude that any such risk was conjectural and not borne out by experience.

The judges also noted other district court decisions over the past year ordering schools to allow transgender students to use appropriate facilities, including a recent ruling in one of the North Carolina cases, requiring the University of North Carolina to ignore H.B.2, that state’s infamous “bathroom bill,” and allow the three individual transgender plaintiffs to use appropriate restrooms at the university while the case is pending before the court.

Judge Marbley’s in-depth analysis of the jurisdictional issues provides a roadmap for a challenge before the Houston-based 5th Circuit Court of Appeals to Judge O’Connor’s nationwide injunction.  The Texas lawsuit attempted to short-circuit the requirements of the Administrative Procedure Act by dragging an interpretive dispute into the federal district court when the relevant statute provides an administrative forum for hearing and deciding such issues before appealing them to the Courts of Appeals.

Judge Marbley was appointed to the district court by President Bill Clinton. Judge Pepper was appointed by President Barack Obama.