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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

9th Circuit Holds Sexual Orientation Requires Heightened Scrutiny in Gay Juror Case

Posted on: January 21st, 2014 by Art Leonard No Comments

A unanimous three-judge panel of the San Francisco-based 9th Circuit Court of Appeals ruled today in Smithkline Beecham Corp. v. Abbott Laboratories that a new trial has to be held because Abbott, the defendant in a civil suit involving claims about the pricing of HIV medications, used one of its “peremptory challenges” to exclude a gay man from the jury. The court found that excluding people from a jury because they are gay violates the Equal Protection Clause of the 14th Amendment, under the 1986 Supreme Court ruling in Batson v. Kentucky. As a necessary part of its ruling, the 9th Circuit panel concluded that sexual orientation discrimination claims are subject to “heightened scrutiny,” a doctrine that makes them more likely to succeed and that may have a significant impact on pending marriage equality cases in Nevada, Arizona and Oregon.

In Batson, the Supreme Court held that excluding a potential juror because of his race violated the 14th Amendment. The court explained that such discrimination in jury selection would “touch the entire community” because it would “undermine public confidence in the fairness of our system of justice,” and that proof of such discrimination was grounds for reversing a trial verdict and ordering a new trial. In a subsequent case, the Supreme Court extend Batson to discrimination based on sex, but indicated that “parties may exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review.” Race is subject to “strict scrutiny,” and sex is subject to “heightened scrutiny.” In order to decide whether the jury strike in this case came within the Batson precedent, the 9th Circuit had to decide whether sexual orientation discrimination is subject to “heightened scrutiny.”

In past decisions, the 9th Circuit has rejected “heightened scrutiny” for sexual orientation discrimination claims, and normally a 9th Circuit panel would follow those precedents. But, in an opinion by Judge Stephen Reinhardt, the panel noted that the Supreme Court’s decision last June in United States v. Windsor has rendered the past 9th Circuit decisions obsolete. Even though the opinion for the Supreme Court by Justice Anthony M. Kennedy did not state explicitly what standard of review the Court was using in striking down Section 3 of DOMA, Judge Reinhardt asserted that the Windsor court was applying some form of heightened scrutiny in that case.

Reinhardt reached this result by a probing reading of Kennedy’s opinion, showing that what the Supreme Court actually did bore the hallmarks of a heightened scrutiny case. Under rational basis review, a statute would be presumed to be constitutional and would be upheld, despite its discriminatory effects, if the Court could hypothesize any rational justification for it. But the Supreme Court did not presume Section 3 to be constitutional, and paid no attention to the post-hoc justifications argued by former Solicitor General Paul Clement on behalf of a House of Representatives Committee. Instead, the Supreme Court focused on the legislative history of DOMA, which showed that it was enacted specifically to discriminate against gay people on grounds of moral disapproval. Justice Kennedy focused on Congress’s “avowed purpose” for enacting DOMA. “The principal purpose,” he wrote, “is to impose inequality, not for other reasons like governmental efficiency.” “The result of this more fundamental inquiry,” wrote Judge Reinhardt, “was the Supreme Court’s conclusion that DOMA’s ‘demonstrated purpose raised a most serious question under the Constitution’s Fifth Amendment.’ Windsor thus requires not that we conceive of hypothetical purposes, but that we scrutinize Congress’s actual purposes. Windsor’s ‘careful consideration’ of DOMA’s actual purpose and its failure to consider other unsupported bases is antithetical to the very concept of rational basis review.”

Reinhardt also noted that the Windsor court put the burden on Congress to “justify disparate treatment of the group,” and under rational basis review, the burden is placed on the challenger to prove that there is no rational justification, not on the government to justify its discrimination. And Reinhardt pointed out that in rational basis cases, the court is “ordinarily unconcerned with the inequality that results from the challenged state action,” but that in Windsor, the Court expressed great concern about the inequality imposed on married same-sex couples by DOMA.

“Windsor refuses to tolerate the imposition of a second-class status on gays and lesbians,” wrote Reinhardt. “Section 3 of DOMA violates the equal protection component of the due process clause, Windsor tells us, because ‘it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.’ Windsor was thus concerned with the public message sent by DOMA about the status occupied by gays and lesbians in our society. This government-sponsored message was in itself a harm of great constitutional significance.” From this, Reinhardt concluded, “Windsor requires that classifications based on sexual orientation that impose inequality on gays and lesbians and send a message of second-class status be justified by some legitimate purpose.” This, of course, is the hallmark of heightened scrutiny in equal protection cases. “Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny.”

In this case, Abbott had an interest in avoiding seating jurors that might be biased against it because it was being charged with improperly inflating the price of HIV medications whose patents it controlled. During the voir dire questioning of potential jurors, it became clear that one man was gay due to his references to his partner. The attorney for Abbott questioned him briefly, but elicited no answers that indicated any particular bias against his client. However, he asked to strike the juror. When the attorney for the other party objected, raising the Batson principle, the trial judge questioned whether Batson applied to the case or the circumstances, but asked the attorney whether he had any particular reason for seeking to exclude the juror. The attorney did not specify a reason, and was allowed to use a peremptory (unexplained) challenge to eliminate him from the jury. The 9th Circuit held that this was error. Since sexual orientation discrimination merits heightened scrutiny, the Batson rule applies and because it was clear that the juror was a gay man and, under the circumstances, Abbott’s counsel might entertain the view that gay men would be biased against his client, some valid justification was necessary to sustain the challenge to his jury service.

The California Supreme Court extended the Batson rule to gay jury challenges long ago for purposes of trials in the state courts, but this ruling by the 9th Circuit is the first to extend Batson to such challenges in federal courts. But the ruling is potentially much more consequential–first, because it applies broadly to all sexual orientation discrimination claims, not just juror challenges, and second, because of another case pending before the 9th Circuit and shortly to be argued, Sevcik v. Sandoval, a challenge to Nevada’s ban on same-sex marriage. In Sevcik, the district court, ruling before last year’s Windsor decision, rejected a challenge to the Nevada marriage ban, holding that the court was bound under the 1972 Supreme Court affirmance in Baker v. Nelson to hold that Sevcik had not presented a “substantial federal constitutional question” and that the state’s ban survived rational basis review. Windsor was decided after Sevcik’s appeal to the 9th Circuit was filed. Now the 9th Circuit has ruled that Windsor requires heightened scrutiny of sexual orientation claims. That surely forecasts a reversal in Sevcik, although it is not clear whether the 9th Circuit would remand the case to the trial court for reconsideration under the heightened scrutiny standard or whether the court of appeals would rule as a matter of law under that standard that the Nevada ban is unconstitutional. Either way, the 9th Circuit’s ruling should have immediate consequences for recently filed marriage equality lawsuits in Arizona, Idaho and Oregon, states which are also in the 9th Circuit, as those district courts will be bound to apply heightened scrutiny in deciding those cases.

Lambda Legal had an amicus brief in the case, co-authored by Shelbi D. Day, Tara L. Borelli, and Jon W. Davidson, working from the organization’s Western Regional Office in Los Angeles.