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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Jersey Court Grants Name Change to Trans Teen in Case of “First Impression”

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

In what the court characterized as a matter of “first impression in this state,” New Jersey Superior Court Judge Marcia Silva granted a transgender teenager a change of name from Veronica to Trevor on March 17. “At the parties’ request,” wrote Judge Silva, “this court has used the parties’ real names.  It was also Trevor’s desire that his name be used in this opinion.”  The opinion was approved for publication on June 28.  The case is Sacklow v. Betts, 2017 N.J. Super. LEXIS 85, 2017 WL 2797437 (Middlesex County).

While this may have been a case of first impression in New Jersey in terms of published court opinions, Trevor is not the first transgender minor to get a court-approved name change. Gavin Grimm, a transgender boy from Virginia whose lawsuit against his school district to gain appropriate restroom access is still pending before the federal appeals court in Richmond even though he recently graduated from Gloucester County High School, received a legal name change, as have some other transgender teens who are involved in litigation against their schools.

The case was originally contested. Trevor’s parents were divorced in 2011 and have joint custody, although Trevor lives with his mother, Janet Sacklow.  His father, Richard Betts, consented to Trevor beginning hormone treatments in 2014, first to suppress menstruation and then, in 2016, testosterone to begin masculinizing his body.  However, Richard was opposed to the name change.  Janet filed the petition seeking the name change on Trevor’s behalf on September 12, 2016, naming Richard as the defendant.  He did not drop his opposition until after he heard Trevor testify during a hearing on March 7.

The biggest issue for Judge Silva was whether the court had any judgment to exercise in this case once the consent of both parents had been obtained. When an adult petitions for a name change, New Jersey law dictates that the court should grant the change unless there is some public interest in denying it, usually based on a finding that it is being done to perpetrate a fraud on creditors or to avoid criminal prosecution.  Unless one of those complicating factors is present, the court is normally not required to make any finding as to whether the name change is in the best interest of the applicant.

A quarter-century ago, in the case of Matter of Eck, 245 N.J. Super. 220 (App. Div. 1991), a New Jersey trial judge refused to grant a transgender adult’s petition for a name change, holding that “it is inherently fraudulent for a person who is physically a male to assume an obviously ‘female’ name for the sole purpose of representing himself to future employers and society as a female.” The Appellate Division reversed this ruling, stating that “a person has a right to a name change whether he or she has undergone or intends to undergo a sex change through surgery, has received hormonal injections to induce physical change, is a transvestite, or simply wants to change from a traditional ‘male’ first name to one traditionally ‘female’ or vice versa.”  In other words, where an adult is concerned, the court has limited discretion to deny a name change, and in New Jersey, at least since 1991, it has been established that a name change to accord with gender identity is not deemed fraudulent as such.

The issue for minors is different, Judge Silva explained. There is a statute governing name changes for minors that has some factual inquiries as prerequisites similar to those governing adults, which did not seem to apply in Trevor’s case.  “It is uncontested,” wrote Silva, “that Trevor is not doing this with the purpose to defraud creditors or avoid criminal prosecution nor has Trevor ever been involved with the criminal justice system.”

But most name change petitions for minors involve situations where the parents are divorcing and the mother, who may have primary residential custody, is planning to assume her maiden name and wants her child to have the same last name as her. In such cases, where the father may be opposed, the court has to referee the situation by figuring out whether it is in the child’s best interest for a change of surname, and in a 1995 case a New Jersey court set out a list of factors to consider in such a case.  Of course, the decision to change a given name to reflect gender identity presents different issues, but Judge Silva concluded that in light of the court’s role as a guardian of the interests of children (referred to in the law as parens patriae) “the best interest of the child standard should apply,” while acknowledging that although the cases involving surnames “provide some guidance to this court, they do not fully address whether the proposed name change is in Trevor’s best interest.”

Judge Silva specified the following factors that she would consider in Trevor’s case: his age, how long he has used the name Trevor, “any potential anxiety, embarrassment or discomfort that may result from the child having a name he or she believes does not match his or her outward appearance and gender identity,” the history of Trevor’s medical or mental health counseling, the name by which he is known in his family, school and community, his preference and motivation for seeking the name change, and whether his parents have given consent.

In this case, the court concluded that all these factors supported a finding that it was in Trevor’s best interest to approve the name change. Trevor had been considered a “quintessential tomboy” by his parents due to his lack of interest in typical girl activities as a youth, and they noticed when he entered the sixth grade “a change in his behavior” that led them to seek counseling for him, first with a child study team at school and then with a clinical social worker.  Ultimately Trevor announced his male gender identity to his parents and his desire to be called Trevor.  His gender dysphoria was diagnosed by a psychologist who continues to work with him through his transition.  Trevor testified that “the only people that still call him Veronica are his father, his stepmother and step-siblings” and that “he feels that the name [Trevor] better represents who he is and the gender with which he identifies.”

While noting the “constant changes that have occurred in the legal landscape as it relates to gender identity, sexual orientation and similar issues,” Silva wrote, “the issue of whether a transgender minor child should be permitted to change his or her name to better match his or her gender identity is a novel one for this court.” She pointed out that if Trevor had waited until his 18th birthday, the issue would be simpler.  Parental approval would not be required.  “However, children are unable to make such decisions on their own unless they have been emancipated.”

Judge Silva observed that the legislature has declared that the state “has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth” and, she wrote, “recognizing the importance of a name change is one of the ways to help protect the well-being of a transgender minor child. The name change allows the transgender minor child to begin to fully transition into their chosen gender and possibly prevent them from facing harassment and embarrassment from being forced to use a legal name that may no longer match his or her gender identity.”

One practical reason why Trevor wanted the change now was because, as he was about to turn 17, he would be applying for a driver’s license and applying to colleges. He was planning this summer to travel to China and would be getting a passport.  It was important, now that he is living as a boy, for him to be able to get these official documents with an appropriate name matching his identity, and a legal name change was needed to use this name on official documents.  Judge Silva counted this motivation in favor of granting the application.

The judge concluded, “Trevor has undergone hormone therapy and presents as a young man with facial hair, a muscular build, a head full of male-textured hair, and a deeper voice. To force him to legally keep the feminine name ‘Veronica’ would not be in his best interest.  Therefore, plaintiff’s motion to legally change Veronica’s name to Trevor is granted.”  Trevor was not seeking to change his surname, and will henceforth be known as Trevor Adam Betts.

Often transgender people seek an exemption from the legal requirement that court-ordered name changes be published in a newspaper of public record, but Trevor was not seeking such an exemption.   “Given the parties’ request that their real names be used in this decision, and the fact that Trevor is the subject of a documentary, this court does not find it necessary to protect his identity and thus will order plaintiff to comply with the publication and filing requirements.”

Trevor and his mother were represented in this proceeding by Jennifer Weisberg Millner of the firm Fox Rothschild LLP.

The current status of transgender legal rights in the U.S.

Posted on: June 8th, 2016 by Art Leonard No Comments

I was invited by Rabbi Sharon Kleinbaum to give a talk at Friday night services at Congregation Beit Simchat Torah on June 3 about the current status of transgender rights in the U.S.  CBST observes Gay Pride Month with a series of guest speakers on Friday nights, and the first Friday of the month was designated as “Trans Pride Shabbat” this year.  Below is a revised version of the text I prepared for that talk, although on Friday night I left this text in my folder and spoke extemporaneously.

This month we mark the anniversary of a major victory for transgender rights in the U.S. which has generally been overlooked. There was much celebration last June 26 when the Supreme Court ruled in Obergefell v. Hodges that same-sex couples were entitled to marry and to have our marriages recognized by state and local governments under the 14th Amendment .  What few mentioned in those celebrations was that this decision implicitly overruled some terrible state court rulings from around the country holding that marriages involving transgender people were invalid under the state bans on same-sex marriage.  By removing any gender requirements for marriage, the Supreme Court was not only opening up marriage nationwide for same-sex couples, it was also making it possible for transgender people to marry the partners they love regardless of their sex, sexual orientation, or gender identity.  This would also cancel out any argument that a married person who was transitioning was no longer validly married or should be required to divorce their spouse. However, since every state now has no-fault divorce, of course if such a transition takes place and the couple decides to end their marriage, there would be no impediment under state law to their doing so.

Let’s consider the current legislative status of transgender rights protections in the U.S. As of today, 17 states expressly prohibit discrimination based on gender identity in employment, housing and public accommodations (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, as well as the District of Columbia and Puerto Rico).  Massachusetts prohibits gender identity discrimination in employment and housing, and the legislature is working on adding public accommodations, with the likely approval of the governor.  Most of these laws have specific exemptions for religious institutions, and some of the states also have Religious Freedom statutes that might be interpreted to provide exemptions for businesses whose owners have religious objections, but the question of such exemptions for businesses is not really settled and heavily argued.

Three states prohibit sexual orientation discrimination by statute but not yet gender identity discrimination: New Hampshire, New York and Wisconsin. In New York, however, the State Division of Human Rights earlier this year published a regulation stating that it interprets the New York Human Rights Law ban on sex discrimination to include discrimination because of gender identity, and the ban on disability discrimination to cover gender dysphoria, thus providing protecting to individuals who have not yet finished transitioning to the gender with which they identify.  That interpretation has not yet been tested in the courts, but it is consistent with some unfolding federal law developments and  also some older decisions by New York trial courts.

In addition, many states have now included specific protection on the basis of gender identity under their Hate Crimes statutes, which authorize enhanced penalties against people who perpetrate violent crimes against people because of their transgender identity. Also, many cities, towns, villages and counties around the country have passed local laws banning gender identity discrimination.  In states that lack such laws, many of the large cities have passed them, although there is a disturbing new trend in some of those states for the state legislatures to pass laws prohibiting localities from going beyond the provisions of the state civil rights laws.  Lawsuits are challenging these limitations.

At the federal level, two statutes, the Matthew Shepard – James Byrd Jr. Hate Crime Prevention Act and the Violence against Women Act, provide for enhanced penalties for those who commit crimes of physical violence against people because of their gender identity, but only when there is some connection to interstate activity.   The interstate activity requirement relates to Congress’s limited power to pass criminal statutes because Article I of the Constitution does not list criminal laws, so federal criminal statues are normally based on Congress’s power to regulate commerce between the states or to enforce other provisions of the Constitution.  In states that do not provide gender identity protection under their hate crimes laws, state prosecutors can refer cases to the US Justice Department, which may prosecute after determining that the crime implicates interstate commerce.  For example, if the weapon used to commit the crime had moved across state lines, or if the crime (such as kidnaping) involved transportation on an interstate highway, the federal Hate Crimes law could come into play.

Congress has not yet approved the Equality Act, which was introduced last year to amend all federal civil rights statutes to list gender identity and sexual orientation as prohibited grounds of discrimination. This would provide protection in the areas of employment, housing, public accommodations, credit, educational institutions, and all programs that receive federal financial assistance or are operated by federal contractors, and would also cover state government employment and federal employment.  The bill enjoys wide co-sponsorship among Democratic members of both houses, but has only a handful of Republican co-sponsors, and the Republican leadership in both houses has denied committee hearings or votes on the bill, so it cannot be passed unless there is a significant change in the political balance of Congress or in the views of the Republican Party.

The Obama Administration adopted executive orders last year that prohibit federal executive branch agencies and federal contractors from discriminating in employment or provision of services because of gender identity or sexual orientation. These orders are enforced administratively within the executive agencies, not in federal courts.  However, there has been recent activity in Congress placing the federal contractor protections into question.  An impasse between Republicans and Democrats has led to a stalemate over adoption of important pending spending bills and has generated substantial debate on the floor of the House of Representatives, because there are enough Republicans who will vote in favor of this protection (which essentially incorporates the terms of the President’s executive order into legislation) to add it to the pending bills as amendments, but then not enough votes from the Republican majority in the House to pass the resulting amended bills, which are generally opposed by the Democrats because they provide insufficient funding for federal agencies or place objectionable restrictions on the agencies’ actions.  This curious situation has brought the legislative authorization process to a temporary halt, and looms as a potential crisis as we move through this hotly contested congressional election cycle.

There are areas where there is much contention now in legislatures and the courts over transgender discrimination claims asserted under existing sex discrimination laws.   Is it possible that gender identity discrimination is already illegal, even when it is not mentioned as a prohibited ground of discrimination?  This is the hot issue of the day that may reach the Supreme Court next term.

In 1964, Congress considered a Civil Rights Act that was mainly intended to ban race and religious discrimination in employment and public services. However, the employment provision, Title VII, was amended in the House of Representatives to add “sex” as a prohibited ground of employment discrimination.  The term “sex” was not defined in the statute, and historical accounts show that the amendment was introduced by a Conservative Virginia representative, possibly as part of a strategy to keep the bill from being passed.  When Title VII went into effect in July 1965, some attempts were made to bring discrimination claims on behalf of gay and transgender people, but they were rejected by the Equal Employment Opportunity Commission (EEOC), the agency in charge of enforcement of Title VII, and in early decisions by the federal courts.

In 1972, Congress enacted Title IX of the Education Amendments Act, which forbids sex discrimination by educational institutions that receive federal funding. The U.S. Department of Education and courts interpreting Title IX have generally followed the interpretation of “sex” under Title VII.  In early cases they refused to use this statute to protect gay and transgender people from discrimination.  Other federal statutes addressing sex discrimination, including the Fair Housing Act and the Equal Credit Opportunity Act, also received narrow interpretations of their sex discrimination provisions.

In 1990, Congress passed the Americans with Disabilities Act. Some opponents of that bill complained that it might be hijacked by sexual minorities claiming that homosexuality or transsexuality could be deemed disabilities.  Republican Senator Jesse Helms from North Carolina obtained an amendment specifically stating that homosexuality  and “transsexualism” would not be considered disabilities for purposes of protection under this statute.

Interpretation of federal sex discrimination laws began to change after 1989, when the Supreme Court decided an important Title VII case, Price Waterhouse v. Hopkins. Ann Hopkins was denied a partnership at a national accounting firm because some of the partners thought she was not adequately feminine in her appearance and conduct.  One said she needed “a course in charm school,” and the head of her office told her she should wear make-up and jewelry and walk, talk and dress more femininely if she wanted to be a partner.  The Supreme Court said that this kind of sexual stereotype was evidence of a discriminatory motive under Title VII, and stated that Congress intended to knock down all such barriers to advancement of women in the workplace, signaling a broad interpretation of sex discrimination.

Over the following two decades, lower federal courts have used the Price Waterhouse decision to adopt a broader interpretation of “sex” under Title VII and other federal sex discrimination provisions. By early in this century federal appeals courts started to extend protection to transgender plaintiffs on the theory that they were suffering discrimination because they failed to conform to sex stereotypes.  Federal circuit and district courts in many different parts of the country have now found gender identity protection in cases under the Violence against Women Act, the Equal Credit Opportunity Act, and Title VII of the Civil Rights Act.  In an important breakthrough, the Atlanta-based U.S. Court of Appeals for the 11th Circuit ruled that discrimination against a transgender state employee violated the Equal Protection Clause of the 14th Amendment, finding that the same standard used for sex discrimination claims should be applied to gender identity claims.

One of the key factors advancing this broad interpretation of sex discrimination was President Obama’s appointment of Chai Feldblum, then a law professor at Georgetown University, to be a commissioner at the EEOC during his first term. (She is now serving a second term at the EEOC.)  Commissioner Feldblum, the first openly lesbian or gay EEOC commissioner, argued effectively that the agency should adopt a broad interpretation of “sex” and apply it to discrimination claims by federal employees.  In three important rulings over the last few years, the EEOC held first that gender identity discrimination claims may be brought under Title VII, then that sexual orientation discrimination claims could also be brought under Title VII, and late last year that Title VII requirs federal agencies to allow transgender employees to use workplace restrooms consistent with their gender identity.  Building on these rulings as well as the growing body of federal court rulings, the Justice Department, the Department of Education, and other federal agencies with civil rights enforcement responsibility, have also begun to interpret their statutory sex discrimination laws more broadly.

The EEOC was ruling on internal discrimination claims within the federal government, but the agency has also undertaken an affirmative litigation strategy, filing briefs in cases pending in federal court brought by private litigants against non-governmental employers. In addition, the EEOC has filed its own gender identity and sexual orientation discrimination lawsuits in federal courts on behalf of individuals who filed charges against employers with that agency.

The Department of Education and the Justice Department have become involved in several cases brought by transgender high school students under Title IX, seeking access to restrooms consistent with their gender identity.

In a case that drew national attention last year, the Education and Justice Departments represented a transgender high school student in Illinois who was denied appropriate bathroom access and negotiated a settlement with the school district affirming the student’s rights. That attracted a federal court lawsuit against the government by Alliance Defending Freedom, a right-wing litigation group representing some objecting parents and students.  The lawsuit claims that Title IX does not apply to this situation and that their children’s “fundamental right of bodily privacy” was violated by the terms of the settlement.  It also claims that the Education and Justice Departments did not have authority to adopt this new interpretation of the law without proposing a formal regulation under the procedures established by the Administrative Procedure Act, which include a right of any interested member of the public to challenge a new regulation directly in the federal appeals courts.

This issue burst into wider public discussion when the city of Charlotte, North Carolina, passed an ordinance forbidding sexual orientation and gender identity discrimination, and made clear that transgender people in Charlotte would be allowed to use public and workplace restrooms consistent with their gender identity. The ordinance was set to take effect on April 1, 2016.  This stirred up a storm in the North Carolina legislature, which held a special session late in March to pass H.B. 2, a measure that preempted local anti-discrimination laws and provided that in government-operated buildings the restrooms would be strictly segregated by biological sex, meaning, for example, that a person can’t use a women’s restroom unless their birth certificate indicates that they are female.  This would apply to public colleges, universities and schools at all levels and in all other government buildings.

The main focus of debate was Republican legislators’ argument that allowing transgender women to use women’s restrooms would present a danger to women and children of possible sexual assault by heterosexual men declaring themselves to be transgender in order to gain improper access. The argument is patently ridiculous.  Seventeen states prohibit gender identity discrimination in public facilities, as do several hundred local jurisdictions, but there are no reports that these laws have enabled male sexual predators to gain access to women’s restrooms, and existing criminal laws against public lewdness and sexual assault can easily be used to prosecute such individuals.  In a alternative argument, the opponents of transgender restroom access are now pushing the theory argued in the new Illinois lawsuit: that allowing transgender people into restrooms consistent with their gender identity threatens the “right of bodily privacy” of other users to avoid exposing themselves to the view of transgender people.  Those making this argument reject the proposition that a transgender woman is genuinely a woman and a transgender man is genuinely a man, and argue that there is a tradition of sheltering people in restrooms from the gaze of members of the opposite sex.

A similar rejection of the reality of transgender identity can be found in a law recently passed by the state of Mississippi, which specifically authorizes people whose religious belief rejects transgender identity to refuse to treat transgender people consistent with their gender identity, including in places of business when it comes to things like restroom access. This reverts back to the views that used to be expressed by courts during the 20th century, rejecting the idea of gender transition and insisting that gender must be defined solely by a determination made at someone’s birth and entered on their birth certificate.

North Carolina’s H.B. 2 and the Mississippi law are now both the subject of multiple federal law suits disputing the bodily privacy argument and forcing courts to confront the question whether discrimination against transgender people violates the 14th Amendment of the Constitution, Title IX and Title VII.  While this dispute was pending, the Obama Administration threatened North Carolina with enforcement action under Title VII and Title IX, and distributed a letter in May to educational administrators nationwide advising them of the requirement to respect the rights of transgender students and staff under Title IX.  The administration’s action attracted new lawsuits, including one filed by the State of Texas on behalf of itself and a dozen other states challenging the administration’s interpretation of Title IX.

Meanwhile, during April the Richmond-based U.S. Court of Appeals for the 4th Circuit, ruling in a high school restroom case brought by a transgender boy under Title IX, held that the federal district court should defer to the Education Department’s interpretation of that statute, reversed the district court’s dismissal order, and sent the case back to the district court for further proceedings.  At the end of May, the full bench of the 4th Circuit rejected the School District’s petition for reconsideration of the case, and on June 7 the school district filed a notice with the 4th Circuit that it plans to petition the U.S. Supreme Court to review the decision.   This will probably result in a “stay” of the 4th Circuit’s ruling, which will delay further consideration by the district court of the plaintiff’s request for a preliminary injunction so that he can access the boys’ restroom facilities at his high school when classes resume in the fall.

Although legal commentators have suggested that it is unlikely the Supreme Court will agree to hear this case, it is at least possible. The notice the School Board filed focuses on two arguments: that the district court should not defer to the Education Department’s interpretation of Title IX, and that giving transgender students the restroom access they desire violates the “bodily privacy rights” of other students.  The first argument would require the Supreme Court to overrule a precedent that has been strongly criticized by the Court’s most conservative justices.  The second would require the Court to broaden the right of privacy under the Due Process Clause to encompass a right not to share restroom facilities with transgender people.

We should begin to see decisions in many of the pending lawsuits in the months ahead. One of the complications facing us now in getting a resolution to this controversy is that the Supreme Court is operating with only 8 members since the death of Justice Scalia in February.  Senate Republicans have refused to hold hearings and vote on President Obama’s nominee for the seat, Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.  This vacancy may lead the Supreme Court to avoid taking for review controversial cases as to which it is likely to be sharply divided, such as the case from Virginia involving the transgender student’s discrimination claim under Title IX.  The court of appeals decision in that case was 2-1. The dissenting judge urged the school district to seek review from the Supreme Court.  Although there might be some delays in getting this issue to the Supreme, it appears likely that the next big LGBT rights case to go to that Court will focus on whether gender identity discrimination is a form of “sex” discrimination that can be challenged under existing sex discrimination statutes and the Equal Protection Clause of the 14th Amendment.

Mississippi Defies the 1st Amendment with “Freedom of Conscience” Law

Posted on: April 8th, 2016 by Art Leonard No Comments

On April 5 Mississippi Governor Phil Bryant signed into law H.B. 1523, a measure that received overwhelming approval in both houses of the state legislature.  Titled the “Protecting Freedom of Conscience From Government Discrimination Act,” the law was clearly intended to encourage businesses and individuals in the state to discriminate against same-sex couples, LGBT people, and even sexually-active unmarried heterosexuals.

Despite the broad wording of its title, the measure does not on its face protect freedom of conscience in general.  Instead, in Section 2, the legislature stated that “the sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that (a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  The first of these, of course, defies the Supreme Court’s 2015 ruling, Obergefell v. Hodges, that same-sex couples have a constitutional right to marry.  The second defies the 2003 ruling, Lawrence v. Texas, which held that the state may not penalize sexual relations between consenting adults in private, regardless of their sex.  And the third defies the general medical consensus that gender identity is a human characteristic that exists apart from biological sex in terms of anatomy and genetics.

The law does not specify how it will be determined that somebody sincerely holds these beliefs or is merely asserting them opportunistically to avoid liability for mistreating somebody.

In effect, Mississippi has moved to protect from any adverse consequences at the hands of the state anybody who sincerely believes that a person born with a penis can only be considered a man for the rest of their life, and similarly a person born with a vagina can only be considered a woman.  This takes things one step further than North Carolina, which provided in its notorious H.B. 2, enacted in March, that “biological sex” means the sex indicated on a person’s birth certificate.  Since North Carolina will allow people to obtain new birth certificates consistent with their gender identity upon medical certification of surgical transition, that state evidently does not officially believe that sex is quite so “immutable.”

The new law goes on to protect people who act on these beliefs in various ways.  For example, religious organizations and clergy can refuse to have anything to do with same-sex marriages, including refusing to provide facilities or services in connection with same-sex marriage or to married same-sex couples.  Businesses can refuse to provide their goods or services or accommodations to same-sex couples, and can exclude transgender people from the use of single-sex-designated facilities consistent with their gender identity.  Nobody can be subjected to loss of their tax-exempt status or denial of government contracts or benefits because they have these “protected” beliefs.  People who spout anti-LGBT rhetoric will be protected from adverse consequences as well.  They can’t be fired from government jobs for articulating such beliefs, for example.

Government employees whose jobs involve authorizing or licensing marriages can seek “recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction” as defined in the statute, provided they send a written notice of such recusal to the State Registrar of Vital Records. They may not suffer any adverse consequences for recusing themselves, but “the person who is recusing himself or herself shall take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.”  Apparently, then, the person recusing themselves is responsible for being sure that somebody else who is willing to perform their duty is available to do so when the service is needed.  This provision is undoubtedly intended to shield the state from liability for refusing to provide a service that same-sex couples have a constitutional right to receive.

The law also relieves people who officiate at weddings from any obligation to perform ceremonies in violation of their sincerely held religious or moral beliefs about the invalidity of same-sex marriages. This presumably would include refusing to officiate if one of the prospective spouses is transgender and that raises religious or moral objections for the officiant because of their lack of belief in the reality of the individual’s gender identity.  OF course, such protection is completely superfluous, since nobody would seriously contend that the government can compel clergy to perform services.

The “discriminatory action” that the government is not allowed to take against people holding and acting on these beliefs goes far beyond taxes to encompass any state benefit, license, certification, accreditation, custody award or agreement, and on and on and on. The list seems to anticipate the variety of cases that have arisen around the country over the past few years in which people have suffered adverse consequences because of their religious objections to homosexuality or same-sex marriage.  For example, some people have been expelled from graduate counseling programs for refusing to provide non-judgmental counseling to gay clients, and such expulsions would clearly be prohibited by this law.  The law would also forbid denying government employment to anybody because of these sincerely held religious beliefs by the prospective employee.

The practical effect is to say that married same-sex couples can be denied a host of benefits and entitlements under a variety of programs, in blatant violation of the Supreme Court’s decision in Obergefell. Ironically, this law was enacted just days after a federal district judge in Mississippi ruled that the state’s ban on adoption of children by same-sex married couples violates the 14th Amendment in light of Obergefell.   And the law erects a structure somewhat akin to apartheid around same-sex marriages.

The measure seems clearly unconstitutional under the Establishment Clause of the 1st Amendment, since it exalts and privileges particular religious beliefs and those who hold them for “special rights.”  On the other hand, some of the law is “merely” symbolic for several reasons.  First, since neither Mississippi nor any of its political subdivisions expressly outlaws discrimination in employment, housing or public accommodations because of sexual orientation or gender identity, people or businesses acting to deny goods, services or accommodations to LGBT people and same-sex couples could do so freely without any consequence under state law before this measure was enacted.  Second, due to the Supremacy Clause of the federal constitution, federal constitutional and statutory rights take priority over state law.

Thus, for example, under Title IX of the U.S. Education Amendments Act as interpreted by the U.S. Department of Education, educational institutions in Mississippi that receive federal money (which would be just about all of them) may not discriminate against transgender individuals because of their gender identity, and under Title VII of the Civil Rights Act of 1964 as interpreted by the Equal Employment Opportunity Commission and the U.S. Department of Justice, employers in Mississippi may not discrimination because of sexual orientation or gender identity.

And, of course, as a federal court ruled days earlier, state policies denying equal rights and benefits to married same-sex couples can be challenged under the 14th Amendment’s Equal Protection Clause.

The main question now is who will file for the first lawsuit to challenge this travesty. Robbie Kaplan, the fearless slayer of DOMA, victorious advocate in the Mississippi marriage equality lawsuit, and representative of the plaintiffs in the same-sex parents adoption case, would be our candidate.

Federal Court in Connecticut Finds Transgender Plaintiff’s Sex Discrimination Claim Actionable Under Title VII

Posted on: March 20th, 2016 by Art Leonard No Comments

U.S. District Judge Stefan R. Underhill has ruled that a transgender doctor could go forward with her sex discrimination claim under Title VII of the Civil Rights Act of 1964 against a Connecticut hospital. Noting a split of authority among federal circuit courts of appeals and the lack of a controlling ruling from the U.S. Supreme Court or the Court of Appeals for the 2nd Circuit, Judge Underhill found more persuasive the more recent opinions finding that “sex” in the Civil Rights Act should be broadly construed to include gender identity, as opposed to older rulings rejecting such an argument.  Fabian v. Hospital of Central Connecticut, 2016 U.S. Dist. LEXIS 34994 (D. Conn., March 18, 2016).

According to her complaint, Dr. Deborah Fabian had applied and was very nearly hired as an on-call orthopedic surgeon at the Hospital of Central Connecticut. She was recruited for the position by Delphi Healthcare Partners, a third-party provider of physicians and management services to health care institutions.  Fabian, who initially presented herself in the hiring process as Dr. David Fabian, claims that she was “all but hired” and had even been sent a proposed contract, which she had signed, and that she considered the final interview with hospital officials to be a “formality.”  Indeed, relying on representations from Delphi, she and her wife sold their home in Massachusetts, contemplating the move to Connecticut.  During the interview she disclosed that she was a transgender woman in the process of transition and would be reporting to begin work as Dr. Deborah Fabian.  She was later informed that she would not be hired.

She took her discrimination claim and the hospital and Delphi to the EEOC, alleging a violation of the federal sex discrimination statute as well as Connecticut’s statute. At the time, Connecticut’s statute had not yet been amended to add an explicit prohibition of discrimination because of gender identity, so under both statutes her claim was that the employer failed to hire her due to her gender identity and that this was sex discrimination.

In moving for summary judgment, the hospital focused on several lines of attack. It argued that she was not being considered for a staff employee position, but rather to be an independent contractor retained through Delphi, and thus in effect a subcontractor of a subcontractor.  Since the anti-discrimination laws apply only to employment, the hospital argued that they did not apply to this case.  Secondly, the hospital argued that its decision not to hire her was based on its conclusion from the interview that she was reluctant to take late-night calls to the Emergency Department, was uncomfortable with their new electronic records system, and that she wanted a job that involved performing more surgery.  Finally, and cutting to the chase, the hospital argued that gender identity discrimination claims are not actionable under Title VII or under the Connecticut state law as it was when this case arose.

Attacking the subcontractor point, Judge Underhill found that many factual issues would have to be resolved before determining whether Dr. Fabian was applying to be an employee of the hospital. Formal titles and contractual arrangements are less significant in these types of cases than a broad array of factors that the Supreme Court has identified in determining whether somebody is an employee or an independent contractor.  In the health care field, companies frequently try to structure their relationship with professional staff in such a way as to avoid the legal entanglements of an employment relationship, and some health care professionals may prefer the autonomy of not being full-time employees.  The Supreme Court has identified more than a dozen distinct factors to consider in making this determination, with particular emphasis on the degree to which the alleged employer controls the work of the employee.  The court found that there were enough disputed factual issues here to preclude making a determination based on a pre-trial motion without the benefit of an evidentiary hearing.  The judge found that Fabian’s factual allegations were sufficient to create a material factual issue on such questions as “control,” so denied the motion on this ground.  The judge also found that factual issues would need to be resolved concerning the hospital’s contentions, disputed by Fabian, about her willingness to handle late-night calls, deal with the information system, or enthusiastically take the job despite the amount of surgery involved.

The main question, to which the judge devoted most of his opinion, was whether Fabian was alleging a kind of discrimination covered by these statutes. Judge Underhill reviewed the history of the inclusion of sex in Title VII and its subsequent interpretation, noting that for many decades after the statute went into effect in 1965 the Equal Employment Opportunity Commission (EEOC) and the courts had taken the view that gender identity claims were not covered.  However, things began to change after the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, where the Court accepted the plaintiff’s contention that her promotion had been denied because various of the firm’s partners objected to her failure to conform to their stereotyped views about how a “woman partner” should act, groom and dress.  With sex stereotyping accepted as evidence of a sex-discriminatory motivation, courts began to accept the argument that discrimination against transgender persons involves sexual stereotypes in violation of Title VII. By early in the 21st century, some federal circuit courts had adopted this view, which was finally embraced by the EEOC in a 2010 decision involving federal employment, which was subsequently endorsed by the Justice Department.

Judge Underhill stated his agreement with the courts “that have held that %Price Waterhouse% abrogates the narrow view” that had been taken in earlier decisions.  “The narrower view relies on the notion that the word ‘sex’ simply and only means ‘male or female,’” he continued.  “That notion is not closely examined in any of the cases, but it is mistaken.  ‘Male or female’ is a relatively weak definition of ‘sex’ for the same reason that ‘A, B, AB, or O’ is a relatively weak definition of ‘blood type’: it is not a formulation of meaning, but a list of instances.  It might be an exhaustive list, or it might not be, but either way it says nothing about why or how the items in the list are instances of the same thing; and the word ‘sex’ refers not just to the instances, but also to the ‘thing’ that the instances are instances of.  In some usages, the word ‘sex’ can indeed mean ‘male or female,’ but it can also mean the distinction between male and female, or the property or characteristic (or group of properties or characteristics) by which individuals may be so distinguished. Discrimination ‘because of sex,’ therefore, is not only discrimination because of maleness and discrimination because of femaleness, but also discrimination because of the distinction between male and female or discrimination because of the properties or characteristics by which individuals may be classified as male or female.”  The judge cited historical references to support his contention that such broader understandings of sex date back as far as 1755, in Dr. Samuel Johnson’s dictionary of the English language, and he found a similarly broad understanding in dictionaries contemporary with the adoption of Title VII in the 1960s.  Thus, even in the absence of direct evidence about what the drafters of the “sex” amendment thought in 1964, there is indirect evidence that a broader understanding of the word and concept then existed.

The judge also quoted a favorite hypothetical case put by proponents of coverage for gender identity discrimination: just as an employer who had no bias against Christians or Jews could be held to have discriminated because of religion if she discharged an employee for converting from one religion to the other, an employer who has no particular bias against men or women could be held to discriminate because of sex if he discharged an employee for transitioning from male to female.   He insisted that no court would make the mistake of finding no discrimination because of religion in the case of the religious convert.  “Because Christianity and Judaism are understand as examples of religions rather than the definition of religion itself,” he wrote, “discrimination against converts, or against those who practice either religion the ‘wrong’ way, is obviously discrimination ‘because of religion.’  Similarly, discrimination on the basis of gender stereotypes, or on the basis of being transgender, or intersex, or sexually indeterminate, constitutes discrimination on the basis of the properties or characteristics typically manifested in sum as male and female – and that discrimination is literally discrimination ‘because of sex.’”

Thus he concluded, “on the basis of the plain language of the statute, and especially in light of the interpretation of that language evident in Price Waterhouse’s acknowledgment that gender-stereotyping discrimination is discrimination ‘because of sex, . . . discrimination on the basis of transgender identity is cognizable under Title VII.”  In a footnote, he observed that he would reach the same conclusion under the pre-amended Connecticut statute.  The legislature’s subsequent addition of the term “gender identity” to the statute did not require a different conclusion “because legislatures may add such language to clarify or settle a dispute about the statute’s scope rather than solely to expand it.”

With the denial of the hospital’s summary judgment motion, the case can proceed to trial unless a settlement is reached. The court noted that Delphi did not join in the motion for summary judgment.

Dr. Fabian is represented by Theodore W. Heiser of Sullivan Heiser LLC, of Clinton, Connecticut.

Judge Underhill was appointed to the District Court by President Bill Clinton.

NYLS Impact Center Salon on Transgender Issues

Posted on: September 28th, 2015 by Art Leonard No Comments

The New York Law School Impact Center is presenting a Salon on Transgender Issue on Tuesday, September 29.  I am participating together with attorneys M. Dru Levasseur of Lambda Legal and Ezra Young.  I prepared a case table on transgender law for distribution at the event and am sharing it here:

Selected Legal Decisions on Transgender Issues

Prepared by Arthur Leonard for NLYS Impact Center Salon, September 29, 2015.

Criminal Law:

City of Chicago v. Wilson, 75 Ill. 2d 525, 389 N.E.2d 522 (Ill. 1978) (Chicago ordinance penalizing cross-dressing could not be constitutionally applied to transgender people whose medical treatment required them to dress according to their gender identity).

People v. Arena, 107 A.D.3d 1440, 967 N.Y.S.2d 301 (N.Y. App. Div., 4th Dep’t. 2013) (allowing transgender witness, sworn as a man, to testify in feminine garb, did not violate due process rights of defendant).

Doe v. Balaam, 524 F. Supp. 2d 1238 (D. Nev. 2007) (magistrate rejected a claim by a transgender woman that her constitutional rights were violated when she was subjected to a strip search in connection with her arrest on a misdemeanor charge).

United States v. Guiterrez-Romero, 2008 WL 2951393 (9th Cir. 2008) (not officially published) (ordering trial court to explain sentencing factors and address how transgender status of prisoners is weighed when deciding what difficulties they may face in prison).

Discrimination Law:

Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir.), cert. denied, 546 U.S. 1003 (2005) (allowing Title VII sex discrimination claim by transgender woman police officer discharged after transitioning).

Broadus v. State Farm Insurance Co., 2000 WL 1585257 (W.D. Mo. 2000) (Title VII does not provide a cause of action for transgender employee subjected to workplace harassment).

Buffong v. Castle on the Hudson, 12 Misc.3d 1193(A), 824 N.Y.S.2d 752 (Table), 2005 WL 4658320 (N.Y. Sup. Ct. 2005) (not officially published) (transgender plaintiff can sue for sex discrimination under NY Human Rights Law).

Cook v PC Connection, Inc., 2010 WL 148369 (D.N.H. 2010) (not officially published) (transgender job applicant’s failure to disclose prior identities on application provided non-discriminatory justification for refusing to hire her).

Cox v. Denny’s, Inc., 1999 WL 1317785 (M.D. Fla. 1999) (Title VII does not protect transgender woman from discrimination because of her gender identity).

Creed v. Family Express Corp., 2007 WL 2265630 (N.D. Ind. 2007) (transgender woman plaintiff may pursue Title VII claim against employer who discharged her for failing to comply with the company’s dress code).

Cummings v. Greater Cleveland Regional Transit Authority, 2015 WL 410867 (N.D. Ohio, Jan. 29, 2015) (transgender woman who had received a new birth certificate designating her sex as female would be considered a woman for purposes of a Title VII sex discrimination claim).

Dawson v. H & H Electric, Inc., 2015 U.S. Dist. LEXIS 122723, 2015 WL 5437101 (E.D. Ark., Sept. 15, 2015) (denying employer’s motion for summary judgment on transgender woman’s Title VII sex discrimination suit for discharge in response to transitioning).

Doe v. Brockton School Committee, 2000 WL 33342399 (Mass. App. Ct. 2000) (unofficially published disposition) (junior high school administration preliminarily enjoined from barring transgender student from school based on student’s refusal to wear gender-appropriate clothing as defined by school).

EEOC v. R.G. & G.R. Harris Funeral Homes, 2015 WL 1808308, 2015 U.S. Dist. LEXIS 53270 (E.D. Mich.) (court denies motion to dismiss Title VII sex discrimination claim brought by Equal Employment Opportunity Commission on behalf of transgender complainant).

Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. September 20, 2007) (gender identity is not a suspect classification).

Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2nd Cir. 2015) (Union violates duty of fair representation under National Labor Relations Act by discriminating against transgender woman in operation of hiring hall program).

Freeman v Realty Resource Hospitality, LLC, d/b/a/ Denny’s of Auburn, 2010 WL 2328407 (Me. Super. Ct., 2010) (transgender woman has viable discrimination claim against fastfood restaurant whose manager barred her from using women’s restroom facilities).

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (discrimination against a transgender woman because of her gender identity was sex discrimination for purposes of a 14th Amendment equal protection claim, invoking heightened scrutiny).

Goins v. West Group, 635 N.W.2d 717 (Minn. 2001) (state law ban on gender identity discrimination did not require employer to allow transgender woman to use restroom facilities designated for use by women).

Grossman, In re, 127 N.J. Super. 13, 316 A.2d 39 (App.), pet. Denied, 65 N.J. 292, 321 A.2d 253 (1974); Grossman v. Bernards Township Board of Education, 11 Fair Empl. Prac. Cas. (BNA) 1196, 11 Empl. Prac. Dec. (CCH) para. 10,686 (U.S. Dist. Ct., D. N.J. 1975), aff’d without opinion, 538 F.2d 319 (3rd Cir.), cert. denied, 429 U.S. 897 (1976) (saga of transgender public school teacher discharged after transitioning male to female, discharge upheld based on speculative conclusion that students exposed to the teacher after she transitioned would experience psychological trauma).

Hispanic Aids Forum v. Estate of Bruno, 16 A.D.3d 294 (App. Div. 1 Dept. 2005) (landlord did not violate NYC Human Rights Law prohibition of gender identity discrimination by insisting that patrons of tenant use public restrooms consistent with their biological sex rather than their gender identity).

Hunter v. United Parcel Service, 697 F.3d 697 (8th Cir. 2012) (granting s.j. to employer on transgender employee’s Title VII claim on ground decision-maker was unaware of plaintiff’s gender identity and had non-discriminatory reason for discharge).

Lie v. Sky Publishing Corp., 2002 WL 31492397 (Mass. Superior Ct. 2002) (not officially published) (transgendered woman who claims she was discharged because of her refusal to dress as a man at work could claim unlawful discrimination on account of sex and disability).

Logan v. Gary Community School Corporation, 2008 WL 4411518 (N.D. Ind. 2008) (refusing to dismiss constitutional discrimination claims by male high school student who dressed as a girl and was barred from attending the senior prom thus attired).

Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F.Supp.2d 653 (S.D. Tex April 3, 2008) (transgender plaintiff may assert sex discrimination claim under Title VII).

Lusardi v. McHugh, EEOC DOC 0120133395, 2015 WL 1607756 (EEOC, April 1, 2015) (employer must allow transgender employee to use the restroom consistent with employee’s gender identity).

Macy v. Holder, Appeal No. 0120120821, 2012 WL 1435995 (EEOC, April 12, 2012) (reversing old agency rulings, holds that gender identity discrimination claims are actionable under Title VII as sex discrimination).

Maffei v. Kolaeton Indus., Inc., 164 Misc.2d 547 (N.Y. Sup. Ct. 1995) (transgender plaintiff can sue for sex discrimination under NY Human Rights Law).

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (not a gender identity case, but crucial to the theory that Title VII and other federal bans on sex discrimination should be construed to encompass gender identity claims under a “sex stereotype” theory).

Richards v. United States Tennis Association, 93 Misc. 2d 713, 400 N.Y.S. 2d 267 (Sup. Ct., N.Y. Co., 1977)(transgender woman entitled to compete as a woman in U.S. Open tennis tournament without being subjected to chromosomal testing for gender; tournament officials’ position per contra would violate NY Human Rights Law ban on sex discrimination).

Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir.2000) (bank discrimination against transgender woman violates sex discrimination provision of Fair Credit Act).

Schroer v. Billington, 525 F. Supp. 2d 58 (D.D.C. 2007) (allowing Title VII sex discrimination claim by transgender woman whose job offer was rescinded when she told employer she would transition before beginning job).

Schwenk v. Hartford, 204 F.3d 1187 (9th Cir.2000) (Violence Against Women Act covers violence against transgender women).

Smith v. City of Salem, Ohio, 378 F.2d 566 (6th Cir. 2004) (allowing Title VII sex discrimination claim by transgender woman discharged as firefighter after transitioning)

Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982); Sommers v. Iowa Civil Rights Commission, 337 N.W.2d 470 (Iowa 1983) (federal and state civil rights laws banning sex discrimination are not applicable to discrimination against a person because they transition from one gender to the other).

Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) (denying employment sex discrimination claim under Title VII by transgender woman discharged as commercial airline pilot after transitioning).

Family Law:

Application for a Marriage License for Jacob B. Nash and Erin A. Barr, 2003-Ohio-7221, 2003 WL 23097095 (Ohio Ct. App. 2003) (not reported in N.E.2d) (transgender man may not marry a woman under Ohio marriage statute that contemplates only marriages of different-sex couples).

Daly v. Daly, 102 Nev. 66, 715 P.2d 56, cert. denied, 479 U.S. 876 (1986) (holding that a father’s parental rights should be terminated when father transitions to female gender).

Gardiner, In re Estate of, 273 Kan. 191, 42 P.3d 120, cert. denied, 537 U.S. 825 (2002) (marriage between man and transgender woman was void so she was not surviving spouse for purposes of inheritance rights).

K.B. v. J.R., 887 N.Y.S.2d 516, 2009 WL 3337592 (Sup. Ct., Kings Co. 2009) (exceptional circumstances gave transgender man standing to petition for custody of the child his wife conceived through donor insemination).

Kantaras v. Kantaras, 884 So.2d 155 (Fla. App. 2nd Dist. 2004) (marriage between woman and transgender man was void ab initio, so he was not deemed father of children she bore during marriage).

Karin T. v. Michael T., 127 Misc.2d 14 (Fam. Ct., Monroe Co., 2007) (transgender man who married woman and argued invalidity of marriage could not escape support obligations).

Ladrach, In re., 32 Ohio Misc.2d 6, 513 N.E.2d 828 (Ohio Probate Ct.1987) (transgender woman could not marry a man).

Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999) (marriage between man and transgender woman contracted in another state was void under Texas law, so transgender woman was not surviving spouse of decedent and could not bring a wrongful death action).

M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204, 205 (1976) (marriage between man and transgender woman was valid).

Pierre v. Pierre, 898 So.2d 419 (La. App. 1st Cir. 2004) (trial court did not abuse discretion by enforcing visitation rights of transgender man with children conceived during his marriage to birth mother of children; dissent argued that as husband had been born female, married was void ab initio and he could not claim parental rights).

Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (state bans on same-sex marriage violate the 14th Amendment; one consequence of this ruling, not discussed by the court, is that transgender people will face no barriers in marrying persons of either sex).

Smith v. Smith, 2007 WL 901599 (Ohio App. 7 Dist. 2007) (custody of a boy exhibiting signs that he wanted to be treated as a girl should be switched from his mother, who accepted son’s desire to transition, to his father, who did not believe his son was transgender).

Identity Claims/Birth Certificates/Name Changes:

A.B.C. v. New York State Department of Health, 35 Misc.3d 565, 939 N.Y.S.2d 691 (N.Y. Sup.Ct. 2012) (trial court refuses to issue legal declaration of sex reassignment, claiming lack of jurisdiction to do so for petitioner resident in NY but born in California).

A.M.B., In re, 997 A.2d 754 (Me. 2010) (trial court could not refuse name-change petition without justification as a matter of “discretion” – court’s decision never mentions petition was transgender man, as revealed in appellate brief).

Birney v. NYC Department of Health and Mental Hygiene, 34 Misc.3d 1243 (A), 2012 WL 975082 (Sup. Ct. 2012) (table) (ordering NYC Health Department to reconsider refusal to issue new birth certificate to transgender applicant who had undergone reassignment surgery).

Brown, In re Robert Floyd, 770 S.E.2d 494 (Va. Sup. Ct. 2015) (transgender federal prisoner was entitled to receive legal name change).

Change of Birth Certificate, In re, 22 N.E.3d 707 (Ind. Ct. App. Dec. 4, 2014) (construing state law to allow transgender persons to apply for new birth certificates consistent with their gender identity).

Doe, Matter of John, [Index Number Redacted by Court], NYLJ 1202601879249, at *1 (N.Y. Sup. Ct., Westchester Co., May 16, 2013) (ordering NY State Education Department to issue professional license in new name of transgender licensed professional).

E.P.L., In the Matter of the Application for Change of Name, 26 Misc.3d 336, 891 N.Y.S.2d 619 (N.Y.Sup. Ct., Westchester Co. 2009) (usual requirement that name change notices be published was waived and court record sealed at applicant’s request, due to risk that publication of transgender applicant’s name change might attract adverse attention).

Golden, In the Matter of Earl William, III, 56 A.D.3d 1109, 867 N.Y.S.2d 767 (N.Y.A.D., 3d Dept., 2008) (trial judge’s rejection of name change on ground that it would cause “confusion” is not legitimate basis for denying petition, where change wasn’t being sought for purposes of fraud or deception).

Grey v. Hasbrouck, 2015 IL. App. (1st) 130267, 2015 Ill. App. LEXIS 399 (Ill. May 22, 2015) (awarding attorneys’ fees to plaintiff as prevailing party in suit challenging state’s require of genital surgery as a prerequisite to issuance of new birth certificate to a transgender person).

Heilig, In re, 816 A. 2d 68 (Md. Ct. App. 2003) (ruling Maryland courts have jurisdiction to issue declarations of gender status for Maryland citizens born out-of-state).

Powell, In re, 95 A.D.3d 1631, 945 N.Y.S.2d 789 (N.Y. App. Div., 3rd Dept. 2012) (transgender inmate entitled to legal name change with evidence of sex reassignment surgery, as male or female identity associated with particular names is a matter of social convention, not law).

Shaw v. District of Columbia, 944 F.Supp.2d 43 (D.D.C. 2013) (transgender woman was entitled to be treated as a legal woman by police and court officers).

Somers v. Superior Court of City and County of San Francisco , 172 Cal.App.4th 1407, 92 Cal.Rptr.3d 116 (2009) (California-born non-resident transgender applicant entitled to replacement birth certificate; insisting on residency requirement would unconstitutionally discrimination based on equal protection and right to travel).

California-born transsexual who lives out of state can receive replacement birth certificate showing current gender, even though the statute allowing for issuance of such birth certificates requires that applications for the new certificate must be filed in the county where the petitioner resides; because this discriminates against California-born transsexuals who reside out of state, equal protection and right to travel were implicated)

Winn-Ritzenberg, In the Matter of the Application for Change of Name, 26 Misc.3d 1891, N.Y.S.2d 220 (N.Y. Sup.Ct., App. Term., N.Y. Co. 2009) (medical evidence of sex-reassignment is not legal prerequisite for transgender applicant’s requested name change).

Medical Treatment/Access to Care/Health Insurance Coverage:

D.F. v. Carrion, 43 Misc.3d 746, 986 N.Y.S.2d 769 (N.Y. Sup. Ct. 2014) (NYC’s Administration for Children’s Services (ACS) must pay for gender reassignment procedures, including surgery, for transgender girl in the foster care system.)

O’Donnabhain v Commissioner, 134 T.C. 34 (U.S. Tax Court 2010) (cost of medical treatments for gender transition mostly fall under the definition of tax exempt medical expenses as, depending on the individual’s case, treatment for GID can be necessary for one’s health).

Radtke v. Miscellaneous Drivers & Helpers Union Local #638 Health, Welfare, Eye & Dental Fund, 2012 WL 1094452 (D.Minn. 2012) (unpublished decision) (union wrongly removed wife of a member from health insurance benefit program after learning she was transgender woman; although born a man, the wife is legally recognized as a woman and as legal spouse is eligible for the benefit plan).

Wilson v Phoenix House, 2011 WL 3273179 (S.D.N.Y., Aug. 1, 2011) (unpublished decision) (transgendered inmate may proceed on claim that in-patient substance abuse treatment center discriminated in violation of New York Human Rights Law and Equal Protection Clause by not allowing her to participate in the support groups consisting of members of her preferred gender).

Prisoner Rights:

Babcock v Clarke, 2009 WL 911214 (E.D. Wash. 2009) (prison officials have legitimate penological interest to use transgender woman inmates legal male name as part of standardized identification procedures).

Barrett v. Coplan, 292 F.Supp.2d 281 (D. N.H. 2003) (transgender inmate denied any treatment for her condition may assert claim for deprivation of constitutional rights against prison officials).

Battista v Clarke, 645 F.3d 449 (1st Cir. 2011) (prison authorities must provide hormone therapy and appropriate clothing for inmate diagnosed with gender dysphoria).

Doe v Yates, 2009 WL 3837261 (E.D. Cal., Nov 16, 2009) (transgender woman housed with dangerous male inmates who raped and assaulted her stated a claim for failure to protect under 8th Amendment and retaliation and Equal Protection claims).

Farmer v. Brennan, 511 U.S. 825, 840-44 (1994)(transgender inmate has a right under 8th Amendment to protected against obvious dangers while incarcerated).

Fields v. Smith, 653 F.3d 550 (7th Cir. 2011), cert. denied, 132 S. Ct. 1810 (2012) (state’s blanket prohibition on hormone treatment and sex reassignment procedures for transgender prison inmates violates 8th Amendment ban on cruel and unusual punishment).

Giraldo v. California Department of Corrections and Rehabilitation, 168 Cal.App.4th 231, 85 Cal.Rptr.3d 371 (Cal. App. 1st Dist. 2008) (holding that jailors have duty of care to transgender inmate who was brutally raped and abused while incarcerated).

Greene v. Bowles, 361 F.3d 290 (6th Cir. 2004) (transgender woman prisoner has the right to a trial of her claim that the prison warden violated her 8th Amendment right to be free of cruel and unusual punishment by knowingly placing her in a position to be physically assaulted by another prisoner).

Houston v. Trella, 2006 WL 2772748 (D.N.J. 2006) (denying treatment on other than medical grounds creates a triable 8th Amendment issue in suit by transgender woman who sought hormone treatment held by the New Jersey prison system at the request of the INS).

Konitzer v Frank, 711 F.Supp.2d 874 (E.D.Wis. 2010) (transgender woman’s constitutional rights not violated by male corrections officers performing strip and pat-down searches).

Kosilek v. Spencer, 891 F.Supp.2d 226 (D. Mass. 2012), aff’d, 740 F.3d 733 (1st Cir.), rev’d, 774 F.3d 63 (1st Cir. en banc, 2014), cert. denied, 135 S. Ct. 2059 (May 4, 2015) (state prison could refuse to provide sex reassignment procedures for transgender woman incarcerated for life without parole).

Lynch v. Lewis, 2015 U.S. Dist. LEXIS 35561, 2015 WL 1296235 (M. D. Ga., March 23, 2015) (denied qualified immunity defense of prison doctors who refused hormone therapy for transgender inmate; constitutional right to receive such therapy is established).

Meriwether v Faulkner, 821 F.2d 408 (7th Cir. 1987) (prison officials cannot deny all treatments to a transgender inmate, but stating in dicta that this does not guarantee the inmate “any particular type of treatment”).

Norsworthy v. Beard, 2015 WL 1500971 (N.D. Calif. April 2, 2105), stayed pending appeal by 9th Circuit (state policy against providing sex reassignment surgery for transgender inmates violates the 8th Amendment).

Powell, In re, 95 A.D.3d 1631, 945 N.Y.S.2d 789 (N.Y. App. Div., 3rd Dept. 2012) (transgender inmate entitled to legal name change with evidence of sex reassignment surgery, as male or female identity associated with particular names is a matter of social convention, not law).

Rosati v. Igbinoso, 2015 WL 3916977 (9th Cir. June 26, 2015) (district court erred in screening out as non-actionable a pro se transgender inmate’s suit seeking sex reassignment surgery).

Smith v. Hayman, 489 Fed. Appx. 544, 2012 WL 3024429 (3rd Cir. 2012) (difference of opinion between medical staff and inmate about appropriate treatment for inmate’s claimed gender dysphoria does not constitute “deliberate indifference” required for an 8th Amendment claim).

White v. United States, 958 A.2d 259 (D.C. App. 2008) (affirming first-degree assault charges against corrections officer charged with forcing transgender woman inmate to perform oral sex on him).


 

Refugee Status/Asylum/Withholding of Removal/Convention Against Torture (CAT):

Gutierrez v. Holder, 540 Fed. Appx. 613 (Mem), 2013 WL 4873881, 2013 U.S. App. LEXIS 19033 (9th Cir. 2013) (denies petition to review determination against CAT protection by the BIA, because conditions for transgender individuals in Mexico have improved significantly).

Hernandez v. Lynch, 2015 U.S. App. LEXIS 15685, 2015 WL 5155521 (9th Cir., Sept. 3, 2015); Godoy-Ramirez v. Lynch, 2015 U.S. App. LEXIS 15717 (9th Cir., Sept. 3, 2015); Mondragon-Alday v. Lynch, 2015 U.S. App. LEXIS 15713 (9th Cir., Sept. 3, 2015) (an apparent rejection of Gutierrez, above, holding that ongoing persecution of transgender women in Mexico would justify protection under the CAT, with recognition that advances for LGB people do not necessarily mean similar advances for transgender people).

Morales v. Gonzales, 472 F.3d 689 (9th Cir. 2007) (in determining whether transgender woman from Mexico was entitled to protection under CAT, Immigration Judge must take into consideration willful blindness of Mexican correctional officials who allegedly looked the other way and failed to intervene when woman was been raped by fellow inmates).

Students’ Rights:

Doe v. Regional School Unit 26, 86 A.3d 600 (Maine Supreme Jud. Ct., 2014) (transgender public school student entitled to use restroom consistent with student’s gender identity).

G. v. Gloucester County School Board, 2015 U.S. Dist. LEXIS 124905, 2015 WL 5560190 (E.D. Va., Sept. 17, 2015) (Dismissing Title IX sex discrimination by transgender boy denied use of boys’ restroom facilities by Board of Education policy; refusing preliminary injunctive relief on equal protection claim).

Johnston v. University of Pittsburgh of the Commonwealth System of Higher Education, 2015 U.S. Dist. LEXIS 41823, 2015 WL 1497753 (W.D. Pa., March 31, 2015) (University did not violate Title IX ban on sex discrimination by refusing to allow transgender man to use men’s restroom and locker room facilities on campus).

Reference:

Dru Levasseur, GENDER IDENTITY DEFINES SEX: UPDATING THE LAW TO REFLECT MODERN MEDICAL SCIENCE IS KEY TO TRANSGENDER RIGHTS, 39 Vt. L. Rev. 943 (2015).

Reference:

Executive Order 13672, signed by President Obama on July 21, 2014, forbids gender identity discrimination in the executive branch of the federal government. The Defense Department is expected to end its regulatory ban on service by transgender uniformed personnel in the spring of 2016.

Nineteen states, the District of Columbia and Puerto Rico have statutes that protect against gender identity discrimination in employment in the public and private sector: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, and Washington.

Six states have an executive order, administrative order, or personnel regulation prohibiting discrimination in public employment based on sexual orientation and gender identity only: Indiana, Kentucky, Michigan, Pennsylvania, and Virginia. One state prohibits discrimination based on gender identity in public employment only: New York. Ohio previously included gender identity, until Governor John Kasich allowed the executive order covering it to expire in January 2011. In February 2015, Kansas Governor Sam Brownback rescinded an executive order prohibiting discrimination based on sexual orientation and gender identity, previously introduced by Governor Kathleen Sebelius.

At least 185 cities and counties (including New York City) prohibit discrimination on the basis of gender identity for both public and private employees.

(Source: Wikipedia visited on September 28, 2015)

 

The Obama Government Contractor Executive Order

Posted on: July 19th, 2014 by Art Leonard No Comments

The White House has announced that President Barack Obama will sign an executive order on July 21, 2014, amending Executive Order 11246 to add “sexual orientation” and “gender identity” as prohibited grounds of discrimination by government contractors.  Announcements emanating from the White House suggest that the addition of these terms to the existing executive order are the only substantive changes that will be made.  The non-discrimination requirements will be included in new federal contracts made after the Labor Department has published final regulations implementing the amendments, probably beginning early in 2015.  Only new contracts entered after that date will be affected by the amendments.  [Update: The Order was signed this morning, July 21, and in addition to amending EO 11246, also amends EO 11478, which establishes non-discrimination policy within the Executive Branch, by addition “gender identity” to the categories already listed in the EO, which was originally adopted in 1969 by President Richard M. Nixon and was amended by Bill Clinton to add “sexual orientation” during the 1990s.]

EO 11246 was signed by President Lyndon B. Johnson on September 24, 1965, just a few months after Title VII of the Civil Rights Act of 1964 went into effect at the beginning of July 1965.  EO 11246 charged the Labor Department, through its Office of Federal Contract Compliance Programs (OFCCP), to oversee a program under which “government contracting agencies” would include in every contract (with some exceptions) a provision under which the contractor agreed not to discriminate in employment because of race, color, religion, sex or national origin, the categories of forbidden discrimination under Title VII, and agreed to abide by rules, regulations and relevant orders promulgated by the Labor Department to enforce this requirement.  Contractors are required generally to include similar provisions in any subcontracts they make as part of their performance of their federal contracts.  The penalty for “noncompliance” with these requirements could be cancellation, termination or suspension of the contract, and ineligibility for future contracts.  Complaints about noncompliance are handled administratively; the president does not have the power to enact laws that can be enforced by individual plaintiffs in the federal courts.  Generally EO 11246 charges the Labor Department to investigate complaints, to try to facilitate settlements, and to refer cases that involve violations of federal statutes to the appropriate enforcement agencies, such as the Equal Employment Opportunity Commission (EEOC).  Of course, the EEOC would only have jurisdiction to initiate enforcement action over complaints involving forms of discrimination prohibited by the statutes that agency is charged with enforcing, such as Title VII.

In 2002, President George W. Bush amended the executive order to provide that “this Order shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”  However, the Order states, “Such contractors or subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”

According to advance word from the White House, President Obama’s amendments will not change this 2002 religious exemption and will not expand it in any way.  That is to say, religious corporations, associations, educational institutions or societies that contract with the federal government to provide services or goods will have to agree not to discriminate in their employment practices on the ground of sexual orientation or gender identity, which may present some of those organizations with particular challenges in light of the religious doctrines to which they adhere.  This raises immediate questions about whether religious organizations might plausibly argue that they cannot recognize a gay person as a member in good standing of their faith, regardless of that person’s professed beliefs?  Who gets to decide, for example, whether an individual professing to be Catholic but also being openly gay can be denied employment by a Catholic agency under contract to the federal government to provide social welfare services to the public, because the agency does not believe that an openly gay person can be deemed to be a practicing Catholic?

The First Amendment’s Free Exercise Clause generally protects religious organizations from interference by the government in their religious activities.  The Supreme Court has held that organizations of any type do not have a constitutional right to refuse to comply with laws of general application that do not single out religious practices for prohibition.  At the same time, the Court has held that free exercise of religion includes giving religious organizations free reign in their employment policies regarding “ministers,” persons to be employed to carry out the religious mission of the organization.  There is some controversy about who can be deemed a ministerial employee, litigation tending to focus on teachers and administrators in religious schools who teach secular subjects but are deemed by the schools to be “ministers” nonetheless and required to sign employment contracts that commit them to avoiding conduct that violates the tenets of the religion.

After the Supreme Court issued its key ruling about the requirement to comply with laws of general application, Congress passed the Religious Freedom Restoration Act (RFRA), providing that persons with religious objections to complying with laws of general application could claim a religious exemption unless the government could show that the government had a compelling interest supporting the general law and that the law provided the least restrictive alternative to achieving that interest.  In effect, Congress wanted to restore prior Supreme Court case law to the extent possible through a statute by imposing upon itself and the federal regulatory apparatus a limitation on its ability to compel people to comply with legal requirements that would violate their religious beliefs.  Many states passed similar laws placing the same restrictions on their own legislative and regulatory functions.

Last month, the Supreme Court ruled in Burwell v. Hobby Lobby Stores that the federal Dictionary Act’s definition of “person” to include corporations applies to RFRA, in a case where two closely-held family-owned business corporations claimed an exemption from complying with regulations under the Affordable Care Act requiring them to cover certain contraceptive methods in health insurance for their employees.  The Court went on to hold that, assuming the government had a compelling reason for including these contraceptive methods in its coverage requirements, requiring these employers to arrange for and pay for the coverage was not the least restrictive method of achieving the coverage goal, as the government could provide the coverage directly itself, or could provide some other mechanism that would make the coverage available without imposing on the objecting corporation.  Another example of a less restrictive alternative cited by the Court was a regulation that the administration had adopted for religiously-identified non-profit corporations, who could signify their objections to the specific items of coverage on a form provided by the government that they would submit to their health insurer, which would then be required to provide the coverage and seek reimbursement from the government.  (That regulation is under attack by some religious non-profit corporations, that claim that executing the form and sending it t0 their insurer substantially burdens their free exercise rights as well.)

The Court’s Hobby Lobby ruling raised immediate fears about whether corporations owned or operated by individuals with religious objections to homosexuality and/or same sex marriage might claim exemptions from employing or serving gay people or same-sex couples.  In her dissenting opinion, Justice Ruth Bader Ginsburg cited two cases on this point, in which state courts had rejected religious exemption claims from state public accommodations laws by a Minnesota health club, which did not want to have gay members, and a New Mexico wedding photographer, who had rejected a job preparing a wedding album for a lesbian couple.  The New Mexico case also involved that state’s version of RFRA, which the New Mexico Supreme Court held was not violated by application of the public accommodations law to a small business.  Similarly, there is litigation pending in Colorado involving a baker who rejected an order to provide a cake for the wedding celebration of a gay male couple.  These are not the kinds of businesses that would likely contract with the federal government, but the nature of the problem is clear.

Under the Executive Order, for example, could a closely-held family-owned company that produces certain technology that the federal government wants to buy, or that provides consulting services that the federal government wants to obtain, insist that for religious reasons it cannot employ gay people, or more particularly cannot continue to employee gay people who marry same-sex partners?  (There are many reports now of Catholic schools that have employed gay people as teachers and administrators for many years suddenly terminating their employment after learning that these people are marrying or have married a same-sex partner.)  Could a federal contractor refuse to include the same-sex spouse of an employee in its employee benefits plan on the same-basis that it includes different-sex spouses, because of religious objections to same-sex marriage?  EO 11246, as amended on July 21 by President Obama, would probably say no.  But if the protesting contractor sought protection from the non-discrimination requirement under RFRA, how would it fare?

These questions are difficult to answer prospectively.  In his opinion for the Court in Hobby Lobby, Justice Alito said that the court was ruling on the case before it, focusing on whether a closely-held family-owned business with religious objections to some forms of contraception was entitled to an exemption from ACA coverage requirements, at least to the extent that non-profit religiously-affiliated organizations had already been accorded by the Obama Administration in its regulations.  The Court, according to Alito, was not purporting to establish a wide-ranging exception to all legal obligations for all business corporations.  Alito commented that an employer could not rely on its religious beliefs to  seek exemption from the race discrimination requirements of Title VII.  But we don’t know whether that comment implicitly relied on the status of race as a suspect classification under the Equal Protection Clause, or the fact that Title VII recognizes a bona fide occupational qualification defense in cases involving religion, national origin or sex discrimination but not in cases involving race or color.  Did Alito mean to suggest more broadly that the RFRA exemption would not extend to any discrimination claims?  Justice Ginsburg was concerned about this in her dissent when she cited the two gay-specific examples from prior case law.  She might well have also noted the Supreme Court’s decision in Boy Scouts of America v. Dale, where the majority found that the Boy Scouts’ 1st Amendment freedom of expression and association rights took priority over whatever interest the state of New Jersey had in forbidding public accommodations such as the Boy Scouts from discriminating based on sexual orientation.  What would the Supreme Court majority think about the relative weight of an executive order banning sexual orientation or gender identity discrimination as opposed to statutory protection for free exercise of religion in RFRA?  Statutes would logically outweigh executive orders when there is a conflict between the two.  Can a presidential executive order that is not effectuating a policy adopted by Congress (as the original 11246 was effectuating the policy of Title VII, albeit going beyond it by applying the non-discrimination requirement to businesses exempt from coverage under Title VII due to their size or the nature of their business) signify a compelling government interest, or does Congress have the sole authority to establish compelling government interests, since the President’s Executive Orders as a matter of law and custom are aimed at the internal policies of the Executive Branch?

When religious opponents of the LGBT executive order suggest that it is going to lead to litigation, they are not making empty threats.  It is likely that some contractor who loses or fails to obtain a contract because they will not comply on religious grounds with the non-discrimination requirement will go to court seeking injunctive relief, and the question will be squarely presented whether RFRA applies to the situation and whether a compelling state interest can be based on an executive order that is not effectuating a policy decision by Congress?

Other questions arise about the pending version of the Employment Non-Discrimination Act, approved last year by the Senate, which provides a rather broad religious exemption beyond the narrow exemption now found in Title VII, the ministerial exemption, or the Bush amendments to EO 11246.  In the wake of Hobby Lobby, one has to ask whether a narrower exemption, similar to that in Title VII, would survive challenge under RFRA?  Questions for which there are at present no firm answers…

Transgender Woman Wins New Trial on Inheritance From Her Husband

Posted on: February 14th, 2014 by Art Leonard No Comments

A three-judge panel of the Texas Court of Appeals ruled on February 13 that Nikki Araguz, a transgender woman who is the surviving spouse of Texas firefighter Thomas Araguz, is entitled to a trial of the question whether her marriage with Thomas was valid. Thomas died without a will, and his mother and ex-wife (suing on behalf of his children) contend that the marriage was not valid and thus cannot provide the basis for an inheritance for Nikki. Estate of Thomas Trevino Araguz III, 2014 Tex. App. LEIS 1573 (Tex. App., 13th Dist.).

Born Justin Graham Purdue in California in 19775, Nikki Araguz grew up in the Houston area and self-identified as female from a very early age. Indeed, evidence related by Chief Justice Rogelio Valdez in the opinion for the court suggests that Araguz always dressed as female. At eighteen, Araguz was diagnosed as having gender dysphoria, and began treatment, including hormone therapy and living as a woman. When she was 21, she filed a petition in the Texas District Court for a name change to Nikki Paige Purdue, which was granted by the court in 1996. She then filed an application in California to amend her birth certificate to show her new name, which was granted. She used the new birth certificate when she obtained a driver’s license in Kansas identifying her as female, and then used that license to get a Texas driver’s license, also indicating she was female.

On August 19, 2008, Nikki and Thomas Araguz applied for a marriage license in Wharton County, Texas. The license identifies Nikki as “woman.” The wedding was held on August 23. At that time, Nikki had transitioned in all respects except one: she had not yet undergone sex reassignment surgery, a procedure for which she had been saving money all her adult life. In October 2008, a few months after her marriage, she had the procedure, which was performed in Texas by Dr. Marci Bowers.

On April 28, 2010, Thomas gave a deposition in a family court proceeding involving the custody of the children from his first marriage, in which he stated, under oath, that he did not know that Nikki had undergone genital reassignment surgery, or that Nikki was “formerly male” or had undergone any type of “gender surgery.” Thomas testified in the deposition that Nikki always represented herself as female before their marriage. In the current proceeding, Nikki alleges that she and Thomas had agreed to take the position that she was female from birth, but Thomas was fully aware of the facts when they were married.

Thomas died on July 3, 2010, without a will. Less than two weeks later, Nikki filed a petition in San Francisco, California, Superior Court, seeking a new California birth certificate specifically designating her as female, which was evidently a detail she had overlooked when a decade earlier she had applied for a birth certificate showing her new name. This was granted by the court and California issued a new birth certificate designating Nikki as “female” on August 30, 2010, almost two months after her husband died.

Under rules of intestate succession, a surviving wife is the principal heir of a man who does not leave a will. If there are surviving children, the estate is split between the widow and the children. If there is no surviving spouse, a surviving parent may inherit, and surviving children are legal heirs as well. In this case, Thomas’s mother, who otherwise would not inherit, filed a lawsuit seeking appointment as administrator of her son’s estate and asking the court to declare that his marriage to Nikki was a “void” same-sex marriage, barred by Texas law. Thomas’s ex-wife also filed suit on behalf of the two minor children, also arguing that the marriage with Nikki was void.

In response, Nikki sought to vindicate her claim to be a surviving spouse, arguing that she was a woman at the time of her marriage. In support of this claim, she presented an affidavit from Dr. Collier Cole, a gender identity expert, who asserted that Nikki would be recognized as a woman at the time she married.

Another fact that is not part of Nikki’s story is also relevant. In 1999, the Texas Court of Appeals ruled in Littleton v. Prange that a marriage between a transsexual woman and a man was void as a same-sex marriage, regardless whether the woman had fully transitioned before the marriage. The Littleton court insisted that one’s gender as identified at birth was fixed for purposes of the marriage law, because no medical or surgical procedure could alter one’s genetic makeup and somebody born male could not be provided with female reproductive capacity. In 2009, the Texas legislature amended the state’s Family Code to provide that “an original or certified copy of a court order relating to the applicant’s name change or sex change” could be “proof of identity and age” for purposes of getting a marriage license. Thus, an important question in this case is whether the 2009 amendment had overruled Littleton v. Prange, in effect authorizing marriages between transsexual women and men (or vice versa).

The trial judge in Wharton County had granted summary judgment to Thomas’s mother and ex-wife, and denied Nikki’s motion for summary judgment, evidently finding that Littleton was a controlling precedent and that, as she still had male genitals when she was married, this was a void marriage between two men.

The court of appeals disagreed. The court found that the 2009 amendment had actually overruled Littleton, making it possible for a transgender woman to marry a man by using a court order relating to a name change or sex change as “proof of identity.” This overruling took place after the marriage of Nikki and Thomas, but before Thomas’s death. This does not end the case by any means, because the parties hotly contest whether Nikki was a woman at any relevant time from the date of the marriage until the date of Thomas’s death. Nikki had not had gender reassignment surgery until after the marriage, and did not obtain a new birth certificate specifically designating her as female until after Thomas’s death. It seems clear from the facts that Thomas’s affidavit given in the custody proceeding was false, as it is unlikely that a man who married a woman who had male genitals at the time of the marriage and who did not undergo sex reassignment surgery until several months into the marriage could possibly be “unaware” that his spouse had previously been a man or had undergone a gender-related medical procedure.

The Texas legislature’s 2009 amendment does not provide any clarity or guidance by setting specific standards for determining when a court can give an order relating to a sex change, so a determination must be made, probably as part of further litigation in this case, whether a person with male genitals can be considered female for purposes of the marriage law, based on the court order granting a name change with the corroborating evidence of a birth certificate indicating the new name and a driver’s license designating the individual as female. Dr. Cole, the only expert witness in the case so far, testified by affidavit that the determination of gender does not depend on surgical alteration, the most important factors being that the individual had been diagnosed with gender dysphoria and had lived in the preferred sex for at least a year, during which hormone treatment was taking place. The plaintiffs in this case (the mother and the ex-wife) had not presented any expert witness to counter this testimony, but the court said that the undisputed evidence that Nikki still had male genitals at the time of the marriage was sufficient to place in issue what her sex was at that time, at least for purposes of a trial as to the validity of the marriage. Texas recognizes the concept of informal marriage, under which the marriage of Nikki and Thomas could be valid if Nikki was legally female at any time before Thomas’s death, even if she would not have been considered female at the time of the marriage ceremony.

The court stated that the concept of gender dysphoria was not a matter of common knowledge, or generally within the expected knowledge of typical jurors or judges, so it was necessary to consider expert testimony in determining the answers to the factual questions in this case. Consequently, it was error for the trial judge to grant summary judgment, especially when the only expert testimony in the record, from Dr. Cole, supported Nikki’s claim that she was female when she married Thomas. It may be that as this case is litigated the Texas courts will give legal effect to the Standards of Care recognized by the World Professional Association for Transgender Health, under which Nikki would be deemed female as of the date of her wedding. Clearly, this court finds that the 2009 statutory amendment overruled Littleton, so it is possible for somebody who has been through a “sex change” — whatever that involves — to marry consistent with their gender identity.

Other lawsuits are pending in Texas challenging the state’s ban on same-sex marriage. Were the ban to be invalidated, same-sex marriages would not be void in Texas, and it would be clear that transgender people can marry any willing partner, regardless of sex, who is interested in marrying them and not otherwise disqualified by virtue of age, disability, or close legal relationship. But until marriage equality becomes a reality in Texas, this case may serve to provide the basis for transgender people to marry the partner of their choice.

Bureaucratic Obtuseness Leads to Discrimination Claim by Transgender Woman against New York City

Posted on: December 4th, 2013 by Art Leonard No Comments

New York State Supreme Court Justice Margaret A. Chan (Supreme Court, New York County) ruled on December 2 that a transgender Jane Doe plaintiff had stated a cause of action against New York City based on the treatment she received when she requested that the Human Resources Administration’s HIV/AIDS Services Administration (HASA) update it records and issue her a new benefits ID card that correctly identifies her name and gender.  My first reaction on reading this case was to question why the New York City Law Department did not negotiate a settlement and is spending time litigating over what appears to be a case of bureaucratic obtuseness at HRA.

Justice Chan’s decision relates that the plaintiff, identified as male at birth in Puerto Rico, came early to recognize her female gender identity and began taking hormones and testosterone suppressants at age 12 to feminize her body. She now lives in New York.  She has undergone medical and surgical procedures to transition fully, and received a New York court name-change order in March 2011.  She is a client of HASA, and applied in August 2011 to change her records and benefits card to reflect her female name and gender.  She points out in her complaint that having the benefits card with the wrong name and gender causes her practical problems and sometimes leads to situations where she may be accused of fraud or otherwise subjected to embarrassment or harassment.

According to her complaint, Jane Doe and “her patient navigator” presented her caseworker at HASA with the court-issued name change order and a letter from her treating physician attesting to her completed gender transition, but her case manager said he “could only submit the request for a name change to the HRA Case Manager, but could not guarantee that the request would be granted.”  As to a change of gender identification, the case worker said that would not be possible without a new birth certificate, which was required by HASA’s administrative policy.  Even when Doe explained that Puerto Rico does not issue new birth certificates in gender transition cases, her case worker, his supervisor, and the Center Manager all insisted that HASA could not change its records to reflect Doe’s current gender identity without such a document.  When Doe requested a written explanation for the denial of her request, she was required to sign a release using her birth name, even though she no longer uses that name to transact business and finds it demeaning.  She also notes that HASA employees insisted on calling her by the male name on her ID card, despite the name-change order.  After continued advocacy, HASA and HRA eventually caved and changed the records, but Doe determined to challenge HASA’s policy of requiring birth certificates to make gender identification changes in its records, arguing that the name-change order and doctor’s certification should be sufficient.  She is represented by Manhattan Legal Services attorney Daniel Pepitone.

Doe brought her lawsuit under both the New York State Human Rights Law and the New York City Human Rights ordinance, alleging gender and disability discrimination.  The state law expressly forbids discrimination in providing public services because of sex or disability, while the City law goes further and expressly forbids discrimination based on gender identity.  Doe claims that she was denied access to benefits, including immediate processing of her request to update her HASA records and issue her a new benefits card reflecting her current gender and legal name.  She also claimed that HASA employees violated her right to privacy by the way they treated her, “because HASA employees were speaking loudly so that others in the office were privy to plaintiff’s request and knowledge of her change of gender.”

The city’s response: Doe was never actually denied benefits or services, and that if she felt harassed or demeaned by HASA employees, this did not “rise to the level of discrimination.”

Justice Chan noted that the City’s anti-discrimination law specifically provides that it “shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those with provisions comparably-worded, have been so construed.”

Turning first to Doe’s challenge to the policy of requiring a new birth certificate as a prerequisite for making a gender change in HASA records, Justice Chan noted that this policy is, on its face, neutral and non-discriminatory.  However, she noted, under the City’s law, “a claim of discrimination based on sexual orientation can be stated where a facially neutral policy or practice has a disparate impact on a protected group.”  Justice Chan wrote, “For the transgender community, while there are procedures on obtaining a change to one’s birth certificate after convertive surgery – at least in New York City – it does not hold true everywhere.”  Justice Chan cited a 1983 California opinion that supports Doe’s claim that Puerto Rico does not provide such changes.  “Under the present HASA policy, a transgender person, such as plaintiff, who cannot obtain a change to his/her birth certificate will not be able to obtain a benefits card to indicate a change in his/her gender despite legal name change and documentation from a doctor stating that the medical convertive surgery was complete.  While plaintiff is still eligible for HASA benefits, the unchanged benefits card denies or hampers access to those benefits.  As plaintiff had experienced, she was subjected to accusations of fraud, and denial of tangible benefits because she did not present as a man, contrary to the benefits card indication.  Therefore, while plaintiff is eligible for HASA benefits, she risks loss of such benefits due to her hampered access to them.  Thus, while HASA’s policy appears to be equal across the board, its practical impact for the transgender community is not.”

Justice Chan also found, contrary to the City’s arguments, that the way in which HASA employees treated Doe was “not a light matter.”  She found that their actions were “laden with discriminatory intent,” since they knew based on her documentation that she had transitioned, and “yet did not treat her accordingly or appropriately.”  The judge found that these actions by HASA employees “are against the tenets of HASA which is to assist clients with housing, medical, and financial needs.”  She concluded, “It cannot be said that plaintiff felt demeaned for any reason other than abject discriminatory reasons.”  Consequently, the City’s motion to dismiss the case was denied.

Because Justice Chan concludes that Doe’s allegations are sufficient to state a discrimination claim under the state and City laws, the City’s burden if it wants to proceed with this litigation would be to show that it is somehow necessary to insist on the birth certificate to make the requested change in HASA records, even when a client has presented both medical evidence and a court-ordered name change document.  If Doe’s medical evidence was sufficient for the court to order a name change, one wonders why it would not be sufficient for HASA to revise its records and issue a new benefits card that is congruent with the name change.  While it would be interesting to see whether the City could actually sustain the burden to show that its discriminatory policy has some objective justification, perhaps this opinion will wake up the Law Department to the logical conclusion that HASA should be advised to change its policy and a settlement should be negotiated with Ms. Doe.