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Another LGBT Case SCOTUS-Bound? Lambda Will Petition for Judicial Review of Ruling on Standing to Challenge Mississippi Statute

Posted on: October 4th, 2017 by Art Leonard No Comments

 

Mississippi enacted H.B. 1523 in 2016. The measure enshrines in state statutes a special privilege to discriminate for people whose religious or moral convictions oppose same-sex marriage and sexual relations outside of opposite-sex marriages, and who reject the idea that a person could have a gender identity different from their “biological sex” as identified through external observation of genitals at birth. As part of that special privilege, such individuals are immunized from any “discriminatory” action by the state government, government employees charged with issuing marriage licenses can decline to issue them to same-sex couples (provided that there is somebody in the pertinent clerk’s office who is willing to process the license application), religious organizations enjoy broad exemptions from complying with anti-discrimination laws, health care providers may withhold services, and businesses that provide wedding-related goods and services can refuse to deal with same-sex couples.  The measure also includes a “bathroom bill” provision that protects entities that require transgender people to use bathrooms consistent with their birth certificate gender designation, and prohibits the state from taking adverse action against a state employee for expressing views consistent with those specially protected by the statute.  Although the state’s anti-discrimination laws do not prohibit sexual orientation or gender identity discrimination, at least two municipal ordinances containing such prohibitions would be preempted by the state law.  It is arguable, in light of pending litigation in other parts of the country, that some federal anti-discrimination laws (in particular, Title IX and Title VII) may be available in some of the situations covered by H.B. 1523.

Several lawsuits were quickly filed to challenge the constitutionality of this measure and keep it from going into effect on July 1, 2016. In one of the lawsuit, Barber v. Bryant, brought by Lambda Legal on behalf of a group of affected Mississippi residents with assistance of local counsel, U.S. District Judge Carlton W. Reeves granted a motion for a preliminary injunction to keep the measure from going into effect, finding that it was likely that the plaintiffs would prevail on their argument that the measure violates the 1st and 14th Amendments, specifically the Establishment and Equal Protection Clauses, and that allowing the measure to go into effect would inflict irreparable injury on the plaintiffs and those similarly situated.  See 193 F. Supp.3d 677 (S.D. Miss. 2016).  But upon the state’s appeal, a unanimous 5th Circuit panel ruled in June that plaintiffs lacked standing to bring suit before the measure actually went into effect.  The panel opined that the mere enactment of a measure alleged to violate the Establishment Clause did not tangibly harm any individual sufficiently to give them standing to challenge the enactment in federal court.  See 860 F.3d 345 (June 22, 2017).

Lambda Legal then filed a motion for rehearing en banc, which was denied by the court on September 29, with two judges dissenting in an opinion by Circuit Judge James L. Dennis.   See 2017 U.S. App. LEXIS 19008.  Dennis explained at length why the panel decision was inconsistent with prior 5th Circuit standing decisions, as well as rulings from other circuits and the Supreme Court.  Numerous decisions by federal courts have rejected objections to standing when the lawsuit was challenging a statute alleged to violate the Establishment Clause through the enactment of a state policy improperly advancing or privileging particular religious beliefs at the expense of those who do not share those beliefs.  Indeed, Judge Dennis anticipated that the plaintiffs would seek Supreme Court review, specifically stating in his opinion that the panel’s ruling created a circuit split on the issue of standing to bring an Establishment Clause challenge against a state statute.  Showing a circuit split of authority on an important question of federal law is a key factor in obtaining Supreme Court review.

Lambda Legal promptly announced that it would petition the Supreme Court to review the 5th Circuit’s ruling. Since this was an appeal by the state from the district court’s grant of a preliminary injunction, the Supreme Court would presumably not be asked to address the underlying merits of the case, but to focus solely on whether the 5th Circuit erred in dismissing the case on grounds of standing.  Perhaps, if the Court found standing, it would also address the appropriateness of the district court’s issuance of the preliminary injunction, but more likely it would remand the case to the 5th Circuit for consideration of that issue.  Meanwhile, Lambda’s request that the 5th Circuit delay filing its mandate and not order the lifting of the preliminary injunction while Lambda seeks Supreme Court review was denied unceremoniously in a non-explanatory one-sentence order signed by Circuit Judge Jerry E. Smith on October 3, which meant that H.B. 1523 would finally go into effect on October 10 unless Lambda could get an emergency stay from the Supreme Court.

Counsel for plaintiffs listed in the June 22 Court of Appeals opinion include Robert Bruce McDuff, Sibyl C. Byrd, and Jacob Wayne Howard of McDuff & Byrd (Jackson, MS), Elizabeth Littrell of Lambda Legal’s Southern Regional Office in Atlanta, Beth Levine Orlansky of the Mississippi Center for Justice (Jackson, MS), and Susan Sommer from Lambda Legal’s headquarters office in New York. Amici in support of plaintiffs include the Southern Poverty Law Center, a variety of AIDS service organizations, a large group of liberal religious organizations, GLAD, NCLR, ACLU, a coalition of pro-LGBT business groups, among others.  In addition to Mississippi government attorneys providing primary defense for the statute, there were amicus briefs from conservative religious and “pro-family” (i.e., anti-LGBT family) groups and from outspokenly anti-LGBT officials from Texas, Louisiana, Nebraska, Arkansas, Nevada, Oklahoma, South Carolina, Utah and Maine.  From the range and quantity of amicus parties listed, it should be clear to the Supreme Court that this litigation is of intense national interest.

Meanwhile, Judge Reeves, who had issued the preliminary injunction in Barber, quickly moved on a motion by Roberta Kaplan, counsel for plaintiffs in Campaign for Southern Equality v. Bryant, the original Mississippi marriage equality case, to take up the question whether HB 1523 violates the court’s ruling striking down the state’s constitutional and statutory bans on same-sex marriage by privileging state officials to refuse to issue marriage licenses to same-sex couples based on their religious of moral convictions. The Jackson Free Press reported on October 3 that Reeves scheduled a telephone conference with attorneys in the case for later in October. In agreeing to reopen the marriage case, Reeves had written that in HB 1523 “the State is permitting the differential treatment to be carried out by individual clerks.  A statewide policy has been ‘pushed down’ to an individual-level policy.  But the alleged constitutional infirmity is the same.  The question remains whether the Fourteenth Amendment requires marriage licenses to be granted (and out of-state marriage licenses to be recognized) to same-sex couples on identical terms as they are to opposite-sex couples.” The question now will be whether Reeves will grant a motion to amend the permanent injunction he issued in that case, which had been upheld by the 5th Circuit pursuant to Obergefell v. Hodges, to bar the state from failing to provide services to same-sex couples equal to those afforded different-sex couples by letting individual clerks refuse to provide the services.   At least one other U.S. District Judge is on record as to this: U.S. District Judge David Bunning, who threw Kim Davis, a county clerk who was refusing to issue marriage licenses to same-sex couples in Rowan County, Kentucky, into prison for contempt of the federal court.  As the Supreme Court most recently made clear on June 26 in Pavan v. Smith, the Obergefell ruling requires states to afford same-sex couples equal treatment with regard to all aspects of marriage.

Former Texas Supreme Court Chief Justice Seeks Reversal of His Old Court’s Opinion

Posted on: September 25th, 2017 by Art Leonard No Comments

On June 30, the Texas Supreme Court issued a ruling claiming that the U.S. Supreme Court’s Obergefell marriage equality decision from June 2015 did not necessarily require state and local governments to treat same-sex and different-sex marriages the same for government employee benefits purposes. On September 15, asserting that his old court’s decision was clearly wrong, retired Texas Supreme Court Justice Wallace B. Jefferson and lawyers from his Austin firm, Alexander Dubose Jefferson & Townsend LLP, asked the U.S. Supreme Court to reverse the ruling.

Jefferson, an African-American Republican, was appointed to the court in 2001 by Governor Rick Perry, who then elevated him in 2004 to the Chief Justice position, where he served until retirement in October 2013. Justice Jefferson was the first African-American to serve on Texas’s highest court.  His law firm was retained by Houston Mayor Sylvester Turner to represent the City in petitioning the Supreme Court for review.

The case arose in 2013 when then-Mayor Annise Parker, an out lesbian and longtime LGBT rights activist, reacted to the Supreme Court’s decision to strike down the federal Defense of Marriage Act by asking her City Attorney whether the reasoning of that case would require the City of Houston to recognize same-sex marriages of City employees. Although Texas did not allow same-sex marriages then, some City employees had gone out of state to marry and were seeking health care benefits for their spouses under the City’s employee benefits plan.  Parker got the answer she was seeking and ordered an extension of benefits to City employees’ same-sex spouses.

Two local Republican activists, Jack Pidgeon and Larry Hicks, sued the City and Mayor Parker, seeking an injunction against extension of the benefits. They persuaded a state trial judge to issue a preliminary injunction, barring the benefits from going into effect pending the outcome of the litigation.  The court relied on the Texas constitutional and statutory bans on same-sex marriage, which had not yet been challenged in court as of that time.  The City appealed the preliminary injunction.

While the appeal was pending before the Texas Court of Appeals, the U.S. Supreme Court decided the Obergefell case, and the U.S. Court of Appeals for the 5th Circuit, which is based in Houston, promptly affirmed a 2014 marriage equality ruling by the federal district court in San Antonio, DeLeon v. Abbott, declaring unconstitutional the Texas same-sex marriage bans that had been the basis for the trial court’s injunction. Then the Texas Court of Appeals issued a ruling reversing the trial court’s preliminary injunction and instructing that court to decide the case consistent with the DeLeon decision.  Pidgeon and Hicks appealed that ruling to the Texas Supreme Court.

 

After extensively considering the matter, the Texas Supreme Court announced that it would deny review of the Court of Appeals ruling. This outraged Texas Republican leaders, including Governor Abbott, and the state Republican Party went to work encouraging people to bombard the court with communications urging it to reconsider and grant review, and then to reverse the court of appeals.  Perhaps it is not surprising, considering the very political nature of that court, made up entirely of Republican justices (since Texas has not had a Democratic governor since George W. Bush defeated Ann Richards in 1994), that the court succumbed to these demands, reconsidered, and granted review.

On June 26, 2017, the U.S. Supreme Court issued its decision in Pavan v. Smith, a challenge to the refusal by Arkansas officials to list both members of married lesbian couples on birth certificates when one of them gave birth to a child through donor insemination. In that ruling, the Supreme Court made abundantly clear that the Obergefell decision had effectively decided the Pavan case by holding that same-sex couples had the same constitutional rights regarding marriage as different sex couples, extending to the entire “constellation of rights” that went with marriage.  The Supreme Court did not even bother to hold oral argument in the Pavan case, simultaneously granting the petition to review an adverse decision by the Arkansas Supreme Court and issuing a brief memorandum opinion, from which three members of the Court dissented in an argumentative and disingenuous memorandum attributed to recently-appointed Justice Neil Gorsuch and signed by Clarence Thomas and Samuel Alito.  The Pavan opinion left no doubt that same-sex and different-sex married couples must be treated the same by government entities under the 14th Amendment.

But it was evidently not clear to a majority of the Texas Supreme Court, which just days later issued its ruling, reversing the court of appeals and sending the case back to the trial court in Houston, with instructions to give Pidgeon and Hicks an opportunity to try to convince the court that the City of Houston was still required to refuse recognition to the marriages of same-sex couples under its benefits plan, relying on the Texas constitutional and statutory ban that was declared unconstitutional by the 5th Circuit. A majority of the Texas Supreme Court clings to the idea that constitutional rulings by the lower federal courts are not binding on the Texas state courts.    The Texas court suggested that the U.S. Supreme Court’s opinion in Obergefell could be interpreted narrowly to address solely the question whether states must allow same-sex couples to marry and must recognize same-sex marriages contracted from out of state, but that the Obergefell opinion said nothing directly about what rights must be accorded to same-sex married couples.  This is, as Justice Jefferson’s Petition to the Supreme Court makes clear, blatantly untrue.  It treats the Pavan ruling as if Justice Gorsuch’s dissent was speaking for the Court.

Justice Jefferson’s Petition on behalf of Mayor Turner and the City of Houston makes mincemeat out of the work product of his former colleagues, quoting clear language from Obergefell which, among other things, specifically mentioned health insurance as an example of how the denial of marriage to same-sex couples violated their fundamental right to marry and to be treated equally with different-sex couples.

This case is just as clear as Pavan was, and is likely to receive the same treatment from the U.S. Supreme Court, unless that Court finds some procedural or jurisdictional reason to dismiss the Petition without deciding the question presented by the petitioners: “Did the Supreme Court of Texas correctly decide that Obergefell v. Hodges and Pavan v. Smith ‘did not hold that states must provide the same publicly funded benefits to all married persons,’ regardless of whether their marriages are same-sex or opposite-sex?” Some have suggested that because the Texas Supreme Court was ruling only on the validity of a preliminary injunction, the matter is not procedurally ripe for U.S. Supreme Court review, but any attempt to reinstate the preliminary injunction would directly violate the constitutional rights of Houston City employees in clear violation of the Obergefell ruling.

On a parallel track, Lambda Legal filed a federal district court lawsuit in Houston over the summer on behalf of some married LGBT City employees, seeking a declaratory judgment that they are entitled to the same benefits for their spouses that their straight colleagues get. If the Supreme Court does not grant Justice Jefferson’s Petition, it is likely that the matter can be resolved relatively quickly through Lambda’s case, since the City would eagerly comply with an order by the U.S. District Court to provide equal benefits.  This is, at heart, a dispute between the pro-LGBT Houston Democratic city government and the anti-LGBT Republican state government.

 

 

Trump Changes Policy on Military Service by Transgender Individuals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New York Appellate Division Rules on Controversial Custody Dispute Between Hasidic Father and Ex-Hasidic Lesbian Mother

Posted on: August 22nd, 2017 by Art Leonard No Comments

The New York Appellate Division court in Brooklyn has unanimously reversed a trial judge’s decision to take away a formerly-Hasidic lesbian mother’s custody of her three children, finding, among other things, that the settlement agreement drafted by her ex-husband’s father at the time of their divorce imposed an unconstitutional requirement that she continue to observe the tenets of a Hasidic lifestyle as a condition of her custody of their children. The August 16 decision, issued “per curiam” by a four-judge bench, aroused concerned comment in the Hasidic community, as it applied well-established principles of family law that the trial judge, himself an Orthodox Jew, seemed to have overlooked in giving preemptive weight to the father’s religious desires.  Weisberger v. Weisberg, 2017 WL 3496090, 2017 N.Y. App. Div. LEXIS 6174, N.Y. Slip Op. 06212.

Naftali and Chava Weisberger were married in 2002. They were brought together, according to established custom in the Hasidic community, by a professional matchmaker (called a shadchan), and were both 19 years old at the time.  They moved to Boro Park, Brooklyn, from the tight Hasidic community in Monsey, N.Y., and had three children together.  The move was prompted by Naftali’s desire to pursue religious studies.  They raised their children according to traditional Hasidic practices and beliefs, in a home with no television or internet, observing strict restrictions of diet and dress and speaking Yiddish at home.

After a few years of marriage, Chava informed Naftali that “she did not enjoy sexual relations with men and that she was attracted to women.” They continued to live together, but after several years Naftali agreed to give Chava a “Get” (a Jewish divorce), and they signed a settlement agreement (which was drafted by Naftali’s father) on November 3, 2008.  Naftali married another woman a few weeks later, and has since had two children with her, prompting the speculation that he was finally willing to grant a religious divorce to free himself to marry somebody else.

Under the written settlement terms, the parents had joint custody of the children with Chava having primary residential custody. They agreed that Naftali’s visitation with the children would be for a two-hour period once a week after school (which would increase for the son as he grew older, for the purpose of religious study), overnight visitation every other Friday after school until Saturday evening for Sabbath observance, two weeks during the summer, and an alternating schedule for Jewish holidays.  But, Chava testified, Naftali did not exercise his visitation rights fully for the first 18 months of his new marriage, and would not bring the children to his new home for visitation, hosting them instead at his parents’ home.

The central provision in the custody dispute was the “religious upbringing clause,” which provided: “Parties agree to give the children a Hasidic upbringing in all details, in home or outside of home, compatible with that of their families. Father shall decide which school the children attend.  Mother to insure that the children arrive in school in a timely manner and have all their needs provided.”  The settlement also provided that each party “shall be free from interference, authority and control, direct or indirect, by the other.”  Chava agreed to waive any claim to marital assets or further financial support for herself, but the agreement obligated Naftali to pay $600 a month for support of the children.

Several events appear to have contributed to lead Naftali to file his motion with the court on November 29, 2012, more than three years after the divorce. He alleged that Chava had “radically changed her lifestyle in a way that conflicted with the parties’ religious upbringing clause.”  For one thing, she had eventually decided that the older daughter was old enough to be told about Chava’s sexual orientation, to the consternation of Naftali, who expected Chava to keep this a secret and to keep any relationship she had with a woman secret from the children.  Naftali claimed that Chava had come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of the children, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and had referred to them by English names rather than the names by which they were known in the Hasidic community.  To top things off, Chava was not dressing according to Hasidic tradition, she had dyed her hair, and a transgender man had moved in and was participating in taking care of the children.

Naftali sought sole legal and residential custody of the children and final decision-making authority over their lives, limiting Chava to a few hours of supervised “therapeutic visitation” each week, and to require strict compliance with the religious upbringing clause when the children were in her presence, either for visitation or at school.

Upon filing the lawsuit, Naftali sought an immediate order giving him temporary residential custody, which he got from Judge Eric Prus. A few days later, the parties agreed to a temporary visitation order for Chava, giving her several days a week but providing that she would “encourage and practice full religious observance in accordance with the practices of Emunas Yisroel in the presence of the children” and “in the Boro Park community, the mother shall dress in the Hasidic modest fashion.”

Chava came back with her own motion, seeking to modify the religious upbringing clause. She wanted permission from the court to bring up the children with “a conservative or progressive modern orthodox Jewish upbringing” in a community that “is inclusive of gay individuals.”  She wanted permission to locate them outside of Boro Park, but within the borough of Brooklyn, and to attend a “conservative or progressive modern orthodox Jewish school that is similarly inclusive.”  She wanted educational decisions to be made jointly, not dictated solely by Naftali.  She proposed that the father be able to continue the children’s Hasidic education by having visitation each Sabbath, and she would promise to keep a kosher home and insure that the children go to school and have their needs provided.  She was also willing for Naftali to have the children for all Jewish holidays.

Judge Prus held a hearing at which Naftali and Chava testified about their marriage and relationship with the children. It seemed that during the marriage Naftali left the house early in the morning and didn’t return in the evening until after the children were asleep, leaving Chava primarily responsible for taking care of them.  They had a strictly Hasidic kosher home.  Naftali testified that upon the divorce he had expected that Chava would keep her sexual orientation a secret from the children and the community, even though the written settlement did not state this.

It was clear from Naftali’s testimony that he did not have extensive contact with the children after the divorce, and even when he resumed some contact, he had visitation in his parents’ home rather than his own home, presumably to shield his new wife and children from being contaminated by non-Hasidic influences. He filed his motion to change custody shortly after learning that a transgender man had moved into the mother’s home and was assisting in taking care of the children.  He had also recently noticed the children wearing non-Hasidic clothing and learned they were eating non-kosher food.  Chava had even allowed them to see movies – forbidden in the Hasidic community.  Naftali also testified that “in March, 2013, the younger daughter told him that she had read a book about children with two fathers and other books about homosexuality.”

Naftali denied that the motivation behind his request for a change in custody was Chava’s lesbian identity. Instead, he pointed to her failure to keep it a secret from the children, and said he wanted sole custody to ensure that they would get a traditional Hasidic upbringing without “interference” from their mother.  He objected to them being exposed to non-religious people, or to intimate relationships that were against Jewish law.  “The father believed that homosexuality violated the Torah,” wrote the court, and when asked if he was amenable to some compromise, he said, “There’s no place for comprising in our religion.”

Chava testified that she was not represented by a lawyer during the divorce process, and that a rabbi guided her in negotiating the settlement. A rabbi served as mediator.  She was under the impression that various changes she sought would be made in the settlement agreement, but when she appeared at the Beth Din (religious court) to sign the agreement, it did not include her changes.  Under the settlement, she agreed to waiver her right to support for herself or any of the marital property, leaving as Naftali’s only obligation the monthly support payments, which she testified she never received from him, although the obligation was spelled out in the settlement agreement.

She testified that she had never been as strictly observant as Naftali, even before the divorce, and that she had taken the children for counseling at the Jewish Board of Family and Children’s Services and enrolled the older daughter in group therapy for children from divorced families. She never told the children about her sexual orientation until in 2012 she learned that the older daughter suspected that Chava was gay, so Chava consulted with the daughter’s therapist and then confided in her daughter.  She testified that her transgender friend came to live with them in September 2012, got along well with the children, but then the older daughter returned from a visit with her father apparently confused and upset, because some of father’s family had “teased about her level of religious observance” and told her that Chava’s friend was “really a woman.”

After the temporary custody arrangement was ordered by the court and the children were spending half of each week with Naftali’s family, Chava “found the children would often be upset and confused.” She said that she felt hypocritical for continuing to obey the religious observance requirements of the court’s order so that she could continue to have the children without supervision, and she found Naftali’s custody proposal to be “devastating, as she had been the most present parent in the children’s lives since they were born,” and she was concerned about their emotional well-being in their father’s custody.  She wanted to raise the children as Jewish, but not according to strict Hasidic requirements and rather in the context of a community that respected and accepted diversity.

Justice Prus, finding that Chava’s conduct had been in conflict with the settlement agreement, said that had there been no such agreement, he might have considered the parties’ arguments “differently,” but “given the existence of the Agreement’s very clear directives, the Court was obligated to consider the religious upbringing of the children as a paramount factor in any custody determination.” He ruled largely in favor of Naftali, awarding him sole legal and residential custody and final decision-making authority for the children, and decreed that Chava would only have limited supervised visitation if she did not comply fully with the religious upbringing clause.  Denying Chava’s motion to modify the religious upbringing clause, Prus made clear that if she wanted unsupervised visitation with the children several days a week, she would have to “practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy” whenever the children were with her, and she would have to direct the children “to practice full religious observance in accordance with Hasidic practices of ultra Orthodoxy at all times.”

Chava appealed this draconian ruling. She was represented by attorneys from Seward & Kissel LLP and the N.Y. Legal Assistance Group, which has a dedicated LGBT assistance practice, and she had amicus brief support from Lambda Legal and the NYCLU, as well as two organizations particularly concerned with her situation: Footsteps, Inc., which assists women seeking to leave the Hasidic community, and Unchained at Last, Inc., an organization assisting women who seek to leave arranged marriages.  According to a Hasidic website commenting on the case, Chava actually works with Footsteps, Inc.  An amicus brief by the prominent firm of Fried, Frank, Harris, Shriver & Jacobson LLP represented the views of these two organizations.

The case was argued before the Appellate Division on November 14, 2016, and it took nine months for the court to compose its opinion, released on August 16.

While acknowledging that a trial court’s determinations in a custody case are normally given great weight, the Appellate Division panel wrote that its authority in such a case is “as broad as that of the hearing court,” and in this case the court decided to discard much of the trial court’s ruling. To begin with, it found that Justice Prus’s decision to award Naftali sole legal and residential custody and decision-making power over the children, while consigning Chava to brief supervised visitation unless she adhered to strict Hasidic practice, “lacked a sound and substantial basis in the record,” as the court had given “undue weight to the parties’ religious upbringing clause.”

New York courts do not consider the parties’ settlement agreement provisions as a “paramount factor” in deciding a custody dispute. The court’s determination of what is the best interest of the children takes priority over any private arrangement the parents have made.  The court quoted earlier decisions holding that “clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children,” and Naftali had fallen short in showing that it was in their best interests to put him in total control of their lives in the way suggested by the trial court’s order.

“The mother has been the children’s primary caretaker since birth,” wrote the court, “and their emotional and intellectual development is closely tied to their relationship with her. The record overwhelmingly demonstrated that the mother took care of the children’s physical and emotional needs both during and after the marriage, while it is undisputed that the father consistently failed to fully exercise his visitation rights or fulfill his most basic financial obligations to the children after the parties’ separation.  Indeed, aside from objecting to her decision to expose the children to views to which he personally objects, the father expressed no doubts whatsoever about the mother’s ability to care and provide for the children.  The weight of the evidence established that awarding the father full legal and residential custody of the children with limited visitation to the mother would be harmful to the children’s relationship with her.”

The court found no evidence that unsupervised visitation would be detrimental to the children and “it was wholly inappropriate to use supervised visitation as a tool to compel the mother to comport herself in a particular religious manner.”

The court pointed out that the settlement agreement itself was focused on giving the children a Hasidic upbringing, and “did not require the mother to practice any type of religion, to dress in any particular way, or to hide her views or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle.”  Citing, for example, the U.S. Supreme Court’s 2003 decision striking down the Texas sodomy law, Lawrence v. Texas, the court said that “a religious upbringing clause should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely.”  The court particularly noted the provision in the settlement agreement that each party “shall be free from interference, authority and control, direct or indirect by the other.”

The court concluded that it was not in the children’s best interest “to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares.” However, the court was not ready to completely grant Chava’s motion to modify the religious upbringing clause in the settlement agreement.  Since the children had spent their lives in the Hasidic community, attended Hasidic schools, and visited with extended family who were observant Hasidic Jews, the court decided that Naftali should continue to exercise final decision-making authority about their education, and that he could continue to require that, at least while they were in his custody or attending their Hasidic school, they “practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy.”

The court said it would be best for the children if the parents “work together to surmount the challenges the children will face as they continue on their current educational path. As such, we deem it appropriate to direct the mother to make all reasonable efforts to ensure that the children’s appearance and conduct comply with the Hasidic religious requirements of the father and of the children’s schools while the children are in the physical custody of their father or their respective schools.”  Also, it noted that Chava intended to keep a kosher home and to provide the children exclusively with kosher food.  However, “we otherwise modify the religious upbringing clause to allow each parent to exercise his or her discretion when the children are in his or her custody.”  The court also decreed more visitation time for Naftali than was provided in the original settlement, and accepted Chava’s proposal that Naftali have the children for all Jewish holidays and that she get the non-religious holidays and vacation time.  For two weeks in the summer the children will be with Naftali, as had been provided in the original settlement agreement.

The court acknowledged that neither party would be fully satisfied with its disposition of the case, but, it said, “courts do not always have the perfect solution for all of the complexities and contradictions that life may bring – the parties must forge a way forward as parents despite their differences. We are confident that both parties will exercise their best judgment in these matters in a manner that furthers the best interests of their children.”  The court reminded the parties that their original settlement provided that neither would seek to alienate the children from the other, or “speak idly about the other party in front of the children.”

As neither party got everything they were seeking, it would not be surprising if one or try to appeal this ruling to the Court of Appeals. The Appellate Division has left them to negotiate over issues as to which Naftali, at least, testified that there could be “no compromise.”  Since the divorce, Chava has come out of the Hasidic community and sought to raise her children in a progressive modern Orthodox community.  How these concerns will be reconciled is anybody’s guess, and the idea that these children will shuttle back and forth each week between two very different worlds will pose an extraordinary challenge to them.  We may not have heard the last about this case.

 

Justice Department Tells 2nd Circuit That Gays Are Not Protected from Discrimination Under Federal Civil Rights Law

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

The U.S. Department of Justice filed a brief on July 26 with the New York-based U.S. Court of Appeals for the 2nd Circuit, weighing in on the question whether Title VII of the Civil Rights Act of 1964 bans discrimination because of sexual orientation.  Not surprisingly, the Trump Administration’s answer is “No.”

 

Title VII lists forbidden grounds for employment discrimination: race or color, religion, sex and national origin. After it went into effect in July 1965, both the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcement of the statute, and the federal courts quickly took the position that people who encountered discrimination because they were gay or transgender could not pursue a claim under this law.  Both the administrative agency and the federal courts held fast to that position until relatively recently.

 

That consensus began to break down early in this century, first in response to discrimination claims by transgender people, as courts and then the EEOC (in 2012) accepted the argument that discriminating against somebody because they were transitioning or had transitioned was actually discrimination because of sex. The rationale they adopted derived from a 1989 decision by the Supreme Court, which recognized that discrimination against people for failing to comply with the employer’s stereotyped view about how people of a particular sex should behave, dress, or otherwise act, was actually discrimination because of their sex.  The 1989 case involved a woman who was denied a partnership in an accounting firm because some of the partners thought she was not sufficiently feminine to meet their image of a “lady partner,” and her immediate boss told her she should get her hair styled and start wearing makeup and jewelry if she wanted to be a partner.

 

By 2015, the EEOC had taken the analysis one step further to cover sexual orientation claims. It recognized that having a same-sex attraction violates gender stereotypes, similarly to the transgender cases, but also drew analogies to cases where courts found that discriminating against an employee for being in an interracial relationship was a form of race discrimination, called associational discrimination.  Further, the EEOC decided that it was really not plausible to distinguish between sexual orientation discrimination and sex discrimination, since both were concerned with treating people differently because of their sex.

 

Until this year, no federal appellate court had accepted these theories, but on April 4, the full bench of the Chicago-based U.S. Court of Appeals for the 7th Circuit became the first federal appeals court to rule that Title VII bans sexual orientation discrimination.  Reversing its prior precedents, the court accepted the EEOC’s analysis in a lawsuit by Kimberly Hively, a lesbian who had been denied a tenure-track position by an Indiana community college.  The college decided not to appeal, taking the position that it had not discriminated at all, so the case was sent back for trial to the district court.

 

Meanwhile, however, the same issue was being litigated in other parts of the country. In the Atlanta-based 11th Circuit, a sexual orientation discrimination claim by Jameka Evans against a Georgia hospital that had been dismissed by the district court was revived by the court of appeals, but on a narrower theory.  In common with several other circuits, the 11th Circuit will accept Title VII claims from gay plaintiffs who allege that they suffered discrimination because of their failure to conform to gender stereotypes.  In this case, while a three-judge panel ruled 2-1 to affirm the trial court’s rejection of the plaintiff’s sexual orientation discrimination claim, the panel sent the case back to the trial court to allow the plaintiff to pursue a sex stereotyping claim.  One member partially dissented, Judge William Pryor (who had been on Trump’s potential Supreme Court list), finding no basis for any Title VII claim by the plaintiff.  Another member of the court agreed to send the case back, but argued that Title VII should be interpreted to cover sexual orientation claims.  A third member found that the panel was bound by circuit precedent to reject the sexual orientation claim, but agreed that the plaintiff should have a chance to pursue a sex stereotype claim.  The 11th Circuit denied a petition to reconsider the Evans case “en banc” (by the full bench) a few weeks ago, and Lambda Legal announced that it will petition the Supreme Court to review the panel decision.  Lambda has until the first week of October to file its petition.

 

Meanwhile, however, within the 2nd Circuit, at least two federal district court judges have recently refused to dismiss sexual orientation claims under Title VII, finding that the circuit’s acceptance of the “associational theory” in a race discrimination case means that the court should accept sexual orientation discrimination claims.  Several other district judges have dismissed such claims, concluding that until the court of appeals explicitly overrules its earlier precedents, the trial judges are bound to follow them.  A few months ago, confronted by petitions for en banc review in three different cases, the Circuit announced that it would reconsider the panel decision in Estate of Donald Zarda v. Altitude Express.

 

In Zarda, the district court had dismissed a Title VII claim but allowed the case to go to trial under New York State’s Human Rights Law, which expressly outlaws sexual orientation discrimination. The jury ruled in favor of the employer, although it is questionable whether the jury was properly instructed about how to weigh the evidence.  The plaintiffs appealed the dismissal of the Title VII claim. A three-judge panel affirmed the district court’s dismissal, while noting that recent developments in the law could justify reconsideration by the full 2nd Circuit bench.  In a case decided by a different three-judge panel at around the same time, Christiansen v. Omnicom, the panel also upheld dismissal of a sexual orientation claim, but sent the case back to the district court for reconsideration as a sex stereotyping claim, and two of the judges joined a concurring opinion suggesting that it was time for the 2nd Circuit to reconsider the sexual orientation issue en banc in an “appropriate case.”  However, after granting en banc review in Zarda, the circuit court denied a petition for en banc review in Christiansen!

 

Briefs were due from the plaintiff’s side in the Zarda appeal during the last week in June. The EEOC, consistent with its interpretation of the statute, filed an amicus (friend of the court) brief in support of the Zarda. (Zarda, a sky-diving instructor, died in a diving accident after starting his discrimination case, so the lawsuit is now being pursued by his executors, seeking money damages for the estate.)    Briefs were due by July 26 from the employer and any amicus parties supporting its position.  After some suspense about what the Trump Administration might do, the Justice Department filed its brief right at the deadline.

 

It is somewhat unusual for the government to file an amicus brief in opposition to a position taken by a federal agency, and it is also unusual for the government to file a brief in a case between private parties – a former employee versus a business – but the federal government has a significant interest in this case, and the politics of EEOC v. DOJ are unusual because of the timing. Until this month, the majority of the EEOC Commissioners have been appointees of President Obama.  They decided the key sexual orientation case two years ago by a vote of 3-2, with the Republican commissioners dissenting.  Upon confirmation of Trump’s appointees to fill some vacancies, control of the EEOC will switch over to Republican hands.  But for now, the EEOC continues to pursue sexual orientation discrimination cases under Title VII, and has even filed some new lawsuits this year despite the change of administrations in January.  On the other hand, the Justice Department reflects the views of the new administration, which are consistent with those expressed by 7th Circuit Judge Diane Sykes (also on Trump’s potential Supreme Court list), who wrote a dissenting opinion in the Hively case.

 

Why does the Trump Administration have a strong interest in a case between private parties? Because Title VII has provisions banning sex discrimination in the federal workforce, and because the president’s political base and the Republicans in Congress stand in opposition to outlawing sexual orientation discrimination.  This is clear from the failure of Republican legislators to co-sponsor the Equality Act, a bill that would amend Title VII to add sexual orientation and gender identity or expression to the statutory list of forbidden grounds of employment discrimination.  A few Republicans were co-sponsors of the Employment Non-Discrimination Act, a narrower bill that was pending in Congress from the mid-1990s through Obama’s first term until it was supplanted by the Equality Act, but not enough to call that bipartisan legislation.  The Employment Non-Discrimination Act came up for floor votes once in each house of Congress but in different sessions of Congress.  On both of those occasions it received few votes from Republican legislators, and their party’s platform never endorsed it.

 

The Justice Department’s brief, noting the EEOC’s position in the case, states that “the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” And, almost needless to say, the Justice Department under the outspokenly anti-gay Jeff Sessions is not persuaded by any of the EEOC’s arguments.  The brief argues that Congress did not intend to ban sexual orientation discrimination in 1964 when it enacted Title VII and that should be the end of the matter.  The failure of Congress to approve any amendment to add sexual orientation to the law is cited as evidence of continuing legislative intent, and the brief argues that only Congress can change the law.  It argues at length that the theories embraced by the EEOC and the 7th Circuit are mistaken interpretations of the Supreme Court’s rulings on sex stereotyping and associational discrimination, and that there is a distinct difference between sex discrimination and sexual orientation discrimination, despite statements by many federal judges that they have difficulty drawing the line between the two.

 

The 2nd Circuit will not be oblivious to the political nature of the government’s opposition.  The concurring opinion in the Christiansen case, written by 2nd Circuit Chief Judge Robert Katzmann, virtually endorsed the EEOC’s interpretation of the statute while calling for the circuit to reconsider its earlier precedents.  And a majority of the judges who will sit on the en banc panel were appointed by Bill Clinton or Barack Obama and have generally taken a more liberal approach to interpreting Title VII.  The circuit’s earlier precedents that are being reconsidered were issued by three-judge panels at a time when the arguments for allowing sexual orientation discrimination claims were not nearly as well developed as they have been in recent years, and the circuit has accepted the associational discrimination theory in a race discrimination case after those earlier cases were decided.  It is likely to see that theory’s applicability here, as the district judges have commented.  However, if the Supreme Court decides to grant Lambda Legal’s petition to review the 11th Circuit case, it is possible that the 2nd Circuit will hold up on deciding the Zarda appeal until the Supreme Court has spoken.  Interesting timing issues will arise this fall.  The 2nd Circuit argument is scheduled for late in September, before the Supreme Court will begin its fall term and start announcing whether it will grant petitions for review filed over the summer.

 

The brief filed by Altitude Express in opposition to the appeal has raised significant jurisdictional arguments that would give the 2nd Circuit a way out of deciding this appeal on the merits, if the judges are so inclined.  That brief argues that when he filed his initial discrimination charge with the EEOC, Donald Zarda expressly disclaimed making a sexual orientation discrimination claim under Title VII, relying instead on the allegation that he suffered discrimination for failing to comply with sex stereotypes.  That was the theory he initially presented in his federal court complaint under Title VII as well, and it was dismissed by the trial judge, who opined that Zarda’s factual allegations were not sufficient for a sex stereotyping claim.  Zarda only pressed a sexual orientation claim under the New York State Human Rights Law.  Thus, Altitude Express argues, he cannot now argue for a sexual orientation discrimination claim under Title VII, because the statute requires that any claim first be presented to the administrative agency, and further that any ruling by the court of appeals on that question would be, in effect, an advisory opinion, as the jury has already ruled against his sexual orientation discrimination claim.  There’s no telling how the 2nd Circuit will respond to these arguments, but one suspects that if they had serious doubts about jurisdiction, they would not have granted the en banc petition.

 

In the meantime, however, it is clear that if the Supreme Court grants review in the 11th Circuit Evans case, the federal government, represented by the Solicitor General, will come into the case against the plaintiff, and by then the EEOC will be in Republican control and will probably not be filing a separate brief.  Once again, the Trump Administration is actively disavowing the LGBT-supportive stance that the candidate claimed during the election last year.  The brief was filed just as Trump was tweeting his decision to bar transgender people from military service, which seemed no coincidence.

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.

Supreme Court Will Consider Religious and Free Speech Exemptions to Anti-Discrimination Law in Colorado Wedding Cake Case

Posted on: June 26th, 2017 by Art Leonard No Comments

On June 26 the United States Supreme Court granted a petition filed by Alliance Defending Freedom (ADF), the anti-gay “religious” law firm, on behalf of Jack Phillips and his business, Masterpiece Cakeshop, to determine whether the Colorado Court of Appeals correctly denied Phillips’ claim that he is privileged under the 1st Amendment to refuse an order to bake a wedding cake for a same-sex couple.  Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission, No. 16-111 (cert. granted June 26, 2017).

The petition was filed last July 22, and had been listed for discussion during the Court’s conferences more than a dozen times. The addition of Donald Trump’s nominee, Neil Gorsuch, to fill a vacancy on the Court was likely the catalyst for a decision to grant review, although it the ultimate disposition of the case could heavily depend on the views of Justice Anthony Kennedy, the “swing justice” on the Court in cases involving LGBT issues.  However, in an interesting twist, one of the main precedents that stands in the way of a victory for Phillips and Masterpiece Cakeshop is an opinion written in 1990 by Justice Antonin Scalia, whose death led to Gorsuch’s appointment.

The petition asks the Court, in effect, to reverse or narrow its long-standing precedent, Employment Division v. Smith, in which Justice Antonin Scalia wrote that individuals do not have a constitutional right based on their religious beliefs to refuse to comply with “neutral” state laws of general application. Neutral state laws are those that do not directly concern religious beliefs or practices, but whose application may incidentally affect them.  In response to this decision, both Congress and many state governments have passed statutes allowing persons to claim religious exemptions from complying with statutes under certain circumstances.

The question which the Court will consider, as phrased by ADF in its petition, is: “Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment?”

The Court has addressed the free speech aspects of this issue in the past.  In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995), the Court ruled that a state’s public accommodation law would have to give way to the 1st Amendment expressive association rights of the organizers of Boston’s St. Patrick’s Day Parade, who refused to allow an LGBT group to march under its own banner in the parade.  The Court ruled unanimously, in an opinion by Justice David Souter, that a parade is a quintessential expressive activity, and the organizers of the parade have a right to exclude groups whose presence would convey a message that the parade organizers do not wish to convey.

By a bare 5-4 majority, the Court extended that ruling in Boy Scouts of America v. Dale (2000), in which Chief Justice William Rehnquist wrote for the Court, holding that the Boy Scouts of America, like the Boston parade organizers, is an expressive association and could refuse to allow an openly gay man to serve as an assistant scoutmaster because this would communicate to its members and the public a view as to homosexuality that the BSA did not want to communicate.  The ruling sparked two dissenting opinions, sharply contesting the majority’s weighing of rights in allowing the Boy Scouts to discriminate and challenging the view that BSA could be characterized as an “expressive association.”

Interestingly, the winning parties in both of these cases have over time come to see the wisdom of allowing at least some LGBT people to participate in their activities.  The Boston parade organizers have allowed some LGBT groups to participate in their parade in recent years, and BSA voted to allow its local troops to permit participation by LGBT people as members and adult leaders, although troops sponsored by religious organizations have continued to exclude LGBT people in some places.

The Court has yet to return to the religious objection aspect of this case.  A few years ago it refused to review a decision by the New Mexico Supreme Court holding that a wedding photographer did not have a 1st Amendment right to refuse to provide her services to a lesbian couple seeking photographic documentation of their commitment ceremony.  Since then, courts in several other states have rejected religious exemption claims by various businesses that provide wedding-related services, including a recent New York ruling refusing a religious exemption to a farm that had hosted and catered weddings.  The more recent Hobby Lobby case, in which the Supreme Court held that a closely-held corporation could refuse on religious grounds to cover certain contraceptive methods under its health care plan, was litigated in terms of a statutory exemption provided by the federal Religious Freedom Restoration Act, and thus was not grounded on a constitutional claim.

A recent appellate ruling by a Kentucky court, however, upheld the right of a company that makes custom t-shirts to refuse an order from a gay organization for shirts to publicize the organization’s Gay Pride festival.  The 2-1 ruling was premised on the court’s conclusion that the denial of services was not based on the sexual orientation of anybody, but the concurring judge also cited the state’s Religious Freedom Restoration Act, while the dissenter found a clear violation of the a municipal anti-discrimination law and no right to a religious exemption.

In the case granted review by the Supreme Court, Charlie Craig and David Mullins were planning to go out-of-state to marry, because in 2012 Colorado did not yet allow same-sex marriages.  However, they planned to follow up with a celebration near their home in order to more easily involve their family and friends, and went to Masterpiece Cakeshop to order a cake for the occasion.  The owner, Jack Phillips, declined their order, citing his religious objection to same-sex marriage.  When Craig and Mullins publicized this refusal, they were offered a free wedding cake by another bakery which they accepted, but they also decided to file a charge of sexual orientation discrimination with the Colorado Civil Rights Division.  The Division ruled in their favor, approving an administrative law judge’s decision that rejected Phillips’s 1st Amendment defenses of free exercise of religion and freedom of speech and found that Phillips had violated the state’s statutory ban on sexual orientation discrimination by businesses.

ADF appealed the administrative ruling to the Colorado Court of Appeals, which rejected both of Phillips’ constitutional arguments.  The court held that baking and decorating a wedding cake is not speech or artistic expression, as Phillips had argued, and that the Commission’s order “merely requires that [Phillips] not discriminate against potential customers in violation of [the Colorado Anti-Discrimination Act] and that such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.”  The court deemed the Act to be a “neutral law of generally applicability,” and thus within the scope of the Supreme Court’s Employment Division v. Smith precedent.  Colorado does not have a Religious Freedom Restoration Act that could arguably create a statutory exemption to the anti-discrimination statute.

Because the Supreme Court granted review on both the free speech and religious exercise claims, there might result a split decision by the Court.  If it wants to adhere to a broad view of Employment Division v. Smith, it can easily follow the route taken by various state courts that have refused to allow businesses to claim a constitutional religious exemption from complying with anti-discrimination laws.  Or, it could use this case to back away from the Employment Division holding or narrow it in some way.

The Court is unlikely to rule for Phillips on the free speech argument if it sticks with its precedents, since the recognized constitutional exception is for organizations or activities that have a primary or significant expressive purpose. Both Hurley and Dale involved non-profit organizations, not businesses, that were engaged in activities that the Court found (by only a narrow margin in the case of the Boy Scouts) to have strong expressive association claims.  It is unlikely that a business whose primary activity is selling cakes could make a similar claim.  But the Supreme Court can be full of surprises, and there have been significant changes in its membership since these cases were decided.  The Court might bow to the argument by ADF that people of strong religious convictions who wish to incorporate those convictions into their businesses have a right not to be compelled by the government to undertake activities that would express a view contrary to their religious beliefs.  This would potentially tear a big hole in the protection against discrimination provided by the public accommodations laws most of the states, and not just those that ban discrimination because of sexual orientation or gender identity.

The Colorado Court of Appeals’ decision will be defended before the Supreme Court by the state’s attorneys. Lambda Legal and One Colorado, with cooperating attorneys John McHugh and Anthony Giacomini of Denver-based Reilly Pozner LLP, filed an amicus brief in response to the petition.  Given the wide-ranging interest in the issues underlying this case, it is likely that the Court will receive a mountain of amicus briefs.  Oral argument will be held sometime next winter.

 

West Virginia Supreme Court Sharply Split on State Hate Crimes Law Interpretation

Posted on: May 15th, 2017 by Art Leonard No Comments

A sharply-divided West Virginia Supreme Court of Appeals voted 3-2 on May 9 to reject the application of the state’s Hate Crimes Law to the criminal prosecution of Steward Butler, who reacted to two gay men kissing each other on a sidewalk in Huntington, West Virginia, in the early hours of April 5, 2015, by exiting his car and slugging both men in the face. State v. Butler, 2017 WL 1905948, 2017 W. Va. LEXIS 333 (May 9, 2017).

W.Va. Code Section 61-2-9(c), which was enacted in 1987, makes it a felony to willfully injure somebody because of their “race, color, religion, ancestry, national origin, political affiliation or sex.” According to the opinion for the majority of the court by Chief Justice Allen H. Loughry, II, since 1987 members of the legislature have introduced 26 bills to amend the law to add “sexual orientation” to the list, but none has succeeded.

Butler was positively identified as the perpetrator because one of the victims managed to record part of the assault on his cellphone. “That video recording,” wrote the court, “as well as the statements taken from the defendant’s companions, were used to identify the defendant as the alleged perpetrator.”  The Cabell County prosecutor presented the case to a grand jury, which charged Butler with two counts of battery and two violations of the Hate Crimes Law.  Butler moved to dismiss the Hate Crimes counts, arguing that the statute did not apply to assaults motivated by the sexual orientation of the victim.

Circuit Judge Paul T. Farrell granted Butler’s motion, dismissing the hate crime counts. He found that “sex” and “sexual orientation” are “two distinct categories of potential discrimination” and that the legislature’s decision not to add “sexual orientation” to the statute, when many other states had done so, clearly signified its intention, so the court “cannot expand the word ‘sex’ to include ‘sexual orientation.’”

The local prosecutor appealed this ruling. Perhaps not surprisingly, West Virginia Attorney General Patrick Morrisey’s office filed a brief supporting the dismissal, while Lambda Legal, which has been actively litigating the issue whether “sex” includes “sexual orientation” in discrimination statutes, filed a brief supporting the local prosecutor.

A bare majority of the Supreme Court agreed with Judge Farrell that the hate crime counts must be dismissed. Chief Justice Loughry rejected any contention that the word “sex” as used in the statute was “ambiguous.”  As such, he wrote, it was not subject to “interpretation” but must be applied according to its “plain meaning.”

“Affording the undefined term ‘sex’ its common and ordinary meaning,” he wrote, “we find the word to be clear and unambiguous and to have a very different meaning and import than the term ‘sexual orientation.’” To support this proposition, he cited definitions from four dictionaries, noted that all but a five states have passed hate crimes laws but that no court has ever before interpreted those that do not specifically mention “sexual orientation” to apply to crimes committed because a victim was lesbian or gay.  He also repeated several times that the failure of the legislature to pass any of the 26 bills proposed to add “sexual orientation” to the statute evidenced legislative intent not to include it.  Furthermore, he wrote, in a criminal case the court should use the “rule of lenity” to ensure that people have clear notice of what conduct is condemned by the statute.  He also insisted that the court’s ruling did not imply approval of Butler’s conduct, and pointed out that Butler is still charged with two counts of battery.

“It is imperative to remember that it is not for this Court arbitrarily to read into a statute that which it does not say,” wrote Loughry. “Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obligated not to add to statutes something the legislature purposely omitted.”

Justice Margaret L. Davis, joined by Justice Robin Jean Workman, dissented in an opinion that brought together the recent opinions accepting the proposition that discriminating because of a person’s sexual orientation necessarily involves sex discrimination. As far as the dissenters are concerned, the term “sex” in the statute is not ambiguous but the prohibition of willfully injuring somebody because of their sex clearly includes the facts of this case.

Justice Davis built her argument by running through the developing case law, starting with the U.S. Supreme Court’s 1989 Price Waterhouse decision and ending with 2nd Circuit Chief Justice Katzmann’s recent concurring opinion in Christiansen v. Omnicom Corporation.  This summary culminated with the following bold assertion:  “If a man stands on a corner kissing a man and is beaten because he is kissing a man, has he been assaulted because of his sex?  Yes, but not simply because he possesses male anatomical parts; rather, the crime occurred because he was perceived to be acting outside the social expectations of how a man should behave with a man.  But for his sex, he would not have been attacked.”

“The indictment in this case properly alleged the attack occurred because of the victims’ sex,” she continued. “Certain individuals are targeted for violence because they are perceived to violate socially-established protocols for gender and sex roles.  The perpetrators in such instances have drawn conclusions that the victim has contravened certain unspoken rules, and the bias-motivated crime thus ensues.”

Quoting from the 7th Circuit’s recent decision in Hively v. Ivy Tech Community College, she wrote, “While the majority might find the crime was actually committed ‘because of sexual orientation,’ it is a ‘common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.’”

She accused the majority of concluding its analysis “prematurely. Simply finding the absence of those two magic words fatal to the State’s contention is the most effortless answer this Court could conjure. But while an answer without more in-depth analysis may be the path of least resistance, it also gives the shortest shrift to critical thinking. . .  The pertinent question is not whether the statute contains the words ‘sexual orientation.’  Rather, it is whether the crime was committed because of the victims’ sex.  The phrase ‘because of sex’ encompasses the actions taken against the victims in this case.”

Justice Davis rejected any argument that the developments in discrimination law could not be carried over to the criminal law context. She pointed out that developments in discrimination law and criminal law have been intertwined over the years.  “Anti-hate legislation has typically taken the form of either penalty enhancement or independent legislation,” she wrote.  “Both types generally define the unlawful acts as acts motivated ‘because of’ (‘based on,’ ‘on the basis of,’ ‘by reason of,’ etc.) . . . [certain protected statuses]. This form is similar to Title VII, the federal employment discrimination statute, a point Chief Justice Rehnquist invoked in upholding the Wisconsin [criminal] statute” in Wisconsin v. Mitchell in 1993.

She also pointed out that allowing the hate crime counts to proceed did not put the Supreme Court in the position of “both judge and jury,” as it would still be up to the prosecutor to prove the assertions of discriminatory intent required by the statute. “Allowing Counts I and III to stand would provide the prosecution ample time to prove the assertions, the jury would be properly instructed on evidentiary requirements and burdens of proof, and the State would be required to prove its allegations of statutory violation beyond a reasonable doubt.  At this juncture, however, the evaluation must concentrate upon the sufficiency of the indictment for a hate crime, and it is my firm belief that the majority of this Court adopted an overly narrow focus, metaphorically missing the forest for the trees.”

Because this decision did not address any federal constitutional issues, it cannot be appealed by the prosecutor to the U.S. Supreme Court. Theoretically, one might argue that the majority’s decision violates the equal protection rights of gay victims, as the court has interpreted the statute to protect straight people from being attacked because of their sex but to deny the same protection to gay people, for no reason other than the legislature’s repeated rejection of amendments to extend such protection to gay people.  But as far as one can tell from reading the majority and dissenting opinions, nobody made that argument in the West Virginia courts, so it was not preserved for review.

Federal Court Rules for “Unique” Family in Fair Housing Act Case

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

A federal district judge in Colorado granted summary judgment under the Federal Fair Housing Act (FHA) on April 5 to a couple in a “unique relationship” who were turned down by a landlord who had two residential properties available for rent that would have met the needs of the couple and their family. Judge Raymond P. Moore found that in turning down two woman (one of whom is transgender) who are married to each other and their two children as tenants, the landlord had discriminated against them because of their sex, as well as their familial status, both of which are forbidden grounds of discrimination under the federal law.

The court also granted judgment to the plaintiffs under Colorado’s Anti-Discrimination Act, which explicitly bans discrimination because of sexual orientation or transgender status as well as familial status.

The landlord, Deepika Avanti, owns three rental properties close to each other in Gold Hill, Colorado. Two are single family houses, and the third is a building subdivided into two separate living spaces, referred to as “townhouses.”  As of April 24, 2015, one of the townhouses was rented to a heterosexual couple, Matthew and Chiara, and the other was being advertised for rent on Craigslist.

The plaintiffs are Rachel Smith, a transgender woman, and Tonya Smith. They had been married for five years and were living with their two children in rental housing that they had to vacate because the building was being sold and withdrawn from the rental market.  They responded to the Craigslist advertisement by emailing Avanti.  “In the email, among other things, Tonya discussed her family, including mentioning that Rachel is transgender,” wrote Judge Moore.  Avanti responded to the email, mentioning that both the townhouse and one of the single family houses, which had three bedrooms, were available for rent. She also asked Tonya to send photos of her family.  Replying by email, Tonya agreed to meet Avanti that evening and attached a photo of the Smith family.

Tonya and Rachel and their children met with Avanti that evening and got to view the townhouse and the single-family house that were available for rent. They also got to meet Matthew and Chiara, the tenants of the other townhouse.  After she returned to her home, Avanti emailed Tonya Smith twice that night.  In the first email, she told Tonya that they were “not welcome to rent the Townhouse because of Matt and Chiara’s concerns regarding their children and ‘noise.’”  In the second email, Avanti said she had talked to her husband and “they have ‘kept a low profile’ and ‘want to continue it’ that way,” so they would not rent either residence to the Smiths.

The next morning, Tonya emailed Avanti, asking what she meant by “low profile.” Avanti replied “that the Smith’s ‘unique relationship and ‘uniqueness’ would become the town focus and would jeopardize [Avanti’s] low profile in the community.”

It took the Smiths months to find a suitable place to rent. Because they had to vacate their existing residence, they moved in with Rachel’s mother for a week and had to shed possessions to fit into a small space.  The new apartment they found did not meet their needs as well as Avanti’s property would have done, due to the location.  Their new apartment placed them in a less desirable school district for the children and required a longer daily commute to her job for Rachel, although she subsequently switched to a job closer to their new apartment.

They sued in federal court, asserting claims under the Fair Housing Act and the Colorado Anti-Discrimination Act. The basis for the federal court having jurisdiction to hear the case was the federal statutory claim, which was divided into a sex discrimination claim and a familial status claim.

The more significant part of the ruling for purposes of LGBT law is the federal sex discrimination claim. Federal discrimination statutes do not at present expressly forbid sexual orientation or gender identity discrimination, but courts are increasingly willing to apply bans on sex discrimination to claims brought by GLBT plaintiffs.  Although the Department of Housing during the Obama Administration took the position that the FHA should be construed to apply to sexual orientation and gender identity discrimination, the Trump Administration has not announced a position on this.  Judge Moore’s opinion thus may be breaking new ground by granting summary judgment in favor of the Smiths on their sex discrimination claim.

Because Colorado is within the 10th Circuit, Judge Moore had to follow 10th Circuit precedent in determining whether the Smiths could sue for sex discrimination under the Fair Housing Act.  The Smiths had argued that discrimination based on “sex stereotypes” is “discrimination based on sex” under the FHA.  Moore pointed out that the 10th Circuit has followed court rulings under Title VII of the Civil Rights Act when interpreting the FHA discrimination ban, and that the 10th Circuit has an employment discrimination ruling on a claim by a transgender plaintiff, Etsitty v. Utah Transit Authority, 502 F.3d 1215 (2007).  In that case, the court ruled that “discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII,” and that “Title VII protections” do not extend to “discrimination based on a person’s sexual orientation.”  However, the Etsitty opinion did recognize the possibility that a gay or transgender plaintiff might claim sex discrimination because of gender stereotyping, relying on the Supreme Court’s 1989 Title VII ruling, Price Waterhouse v. Hopkins, 490 U.S. 228, where the court held that discriminating against a woman for her failure to conform to the employer’s stereotyped views of how women should act and present themselves in a business setting could violate the statute.

Judge Moore noted that in the Etsitty opinion the 10th Circuit had “cited with approval” to Smith v. City of Salem, 378 F.3d 566 (6th Circuit 2004), a decision upholding a Title VII claim by a transgender woman who was being pressured to quit by the City’s Fire Department after confiding in a supervisor that she was transitioning.  The court held that the fact that the plaintiff is a “transsexual” was “not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”  In a 2014 decision, McBride v. Peak Wellness Center, 688 F.3d 698, the 10th Circuit has, according to Judge Moore, “implicitly recognized that claims based on failure to conform to stereotypical gender norms may be viable.”

This was enough for Moore. “In this case,” he wrote, “the Smiths contend that discrimination against women (like them) for failure to conform to stereotype norms concerning to or with whom a woman should be attracted, should marry, and/or should have children is discrimination on the basis of sex under the FHA.  The Court agrees,” he continued, finding that “such stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act (e.g., that a woman should not be overly aggressive, or should not act macho), and are products of sex stereotyping.”

Moore also stated agreement with the Smiths’ argument that “discrimination against a transgender (here, Rachel) because of her gender-nonconformity is sex discrimination. In other words,” he explained, “that discrimination based on applying gender stereotypes to someone who was assigned a certain sex (here, male) at birth, constitutes discrimination because of sex.”  So long as the argument was phrased in terms of stereotyping, Moore believed that he could rule on the claim under the FHA.  However, he cautioned, “To the extent the Smiths argue something more – that the FHA has been violated based on sex stereotyping as they have been discriminated against solely because of Rachel’s status as transgender, and that the Smiths were discriminated against because of their sexual orientation or identity – the Court declines to do so.”  Thus, the court did not hold, as such, that discrimination because sexual orientation or gender violate the FHA’s ban on sex discrimination, but embraced such a broad view of sex stereotyping that the opinion appears to have much the same effect.

As to the motion for summary judgment, Moore concluded that the “undisputed material facts” show that Avanti violated the FHA, as her reference to the Smiths’ “unique relationship” and their family’s “uniqueness” showed reliance on stereotypes “of to or with whom a woman (or a man) should be attracted, should marry, or should have a family.”

As to the “familial status” discrimination claim, there is clear precedent that it violates the FHA for a landlord to have an “adults only” policy or to discriminate against prospective tenants because they have children, so that was a clear winner. Judge Moore also found it relatively simple to rule in the Smiths’ favor on their state law claims, since Colorado explicitly forbids housing discrimination because of sexual orientation (which is defined to include “transgender status”) as well as familial status.  The next stage of the lawsuit will be to determine the damages or relief that the court might order.

The Smiths are represented by Karen Lee Loewy and Omar Francisco Gonzalez-Pagan, from Lambda Legal’s New York office, and cooperating attorneys from Holland & Hart LLP’s Denver office: Matthew Paul Castelli and Benjamin Nichols Simler.

Landmark Federal Appeals Ruling Holds Sexual Orientation Discrimination Violates Title VII

Posted on: April 5th, 2017 by Art Leonard No Comments

The full bench of the U.S. Court of Appeals for the 7th Circuit, based in Chicago, substantially advanced the cause of gay rights on April 4, releasing an unprecedented decision in Kimberly Hively v. Ivy Tech Community College, 2017 WL 1230393, holding that Title VII of the Civil Rights Act of 1964, which applies generally to all employers with fifteen or more employees as well as many federal, state and local government operations, prohibits discriminating against a person because of their sexual orientation.  The text of the statute does not mention sexual orientation, so the interpretive question for the court was whether discriminating against somebody because they are lesbian, gay or bisexual can be considered a form of sex discrimination.

What was particularly amazing about the affirmative decision, the first to rule this way by a federal appeals court, was that the 7th Circuit is composed overwhelmingly of Republican appointees, many of whom were appointed as long ago as the Reagan Administration.  Although the lead opinion for the Circuit was written by Chief Judge Diane Pamela Wood, who was appointed by Bill Clinton, the 8-member majority of the 11-judge bench included more Republicans than Democrats.  Many of the judges in the majority could be generally characterized as judicial conservatives.

Wood’s opinion was joined by Frank Easterbrook (Reagan appointee), Ilana Rovner (George H. W. Bush appointee), Ann Claire Williams (Clinton appointee), and David F. Hamilton (the only Obama appointee on the Circuit). Richard Posner (Reagan appointee) wrote a concurring opinion.  Joel Martin Flaum (Reagan appointee) wrote a concurring opinion which was joined by Kenneth Francis Ripple (Reagan appointee).  The dissent by Diane S. Sykes (George W. Bush appointee) was joined by Michael Stephen Kanne (Reagan appointee) and William Joseph Bauer (Ford appointee).  Ripple and Bauer are senior judges who were sitting on the en banc hearing because they were part of the three-judge panel (with Judge Rovner) that ruled on the case last year.  The Circuit has 11 authorized positions, but there are two vacancies among the active judges, part of the Republican Senate’s legacy of refusing to confirm most of President Obama’s judicial appointees during his second term.

The Circuit’s decision to grant en banc review clearly signaled a desire to reconsider the issue, which Judge Rovner had called for doing in her panel opinion. Rovner then made a persuasive case that changes in the law since the 7th Circuit had previously ruled negatively on the question called out for reconsideration.  Those who attended the oral argument on November 30 or listened to the recording on the court’s website generally agreed that the circuit was likely to overrule its old precedents, the only mystery being who would write the opinion, what theories they would use, and who would dissent.

The lawsuit was filed by Kimberly Hively, a lesbian who was working as an adjunct professor at the college, which is located in South Bend, Indiana. Despite years of successful teaching, her attempts to secure a full-time tenure-track position were continually frustrated and finally her contract was not renewed under circumstances that led her to believe it was because of her sexual orientation.  Since Indiana’s state law does not forbid sexual orientation discrimination, and South Bend’s ordinance (which does forbid sexual orientation discrimination) would not apply to the state college, she filed suit in federal court under Title VII.  She represented herself at that stage.  The trial judge, Rudy Lozano, granted the college’s motion to dismiss the case on the ground that 7th Circuit precedents exclude sexual orientation discrimination claims under Title VII.

Hively obtained representation from Lambda Legal on appeal. The three-judge panel rejected her appeal, while two of the judges urged that the precedents be reconsidered.

Judge Wood found that several key Supreme Court decisions have broadened the meaning of “because of sex” in Title VII, to the extent that she could write that “in the years since 1964, Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman for Job A, or a man for Job B.” The broadening includes launching a complex law of sexual harassment, including same-sex sexual harassment, and discrimination against a person who fails to conform to “a certain set of gender stereotypes.”

As have many of the other judges who have written on this issue, Wood quoted from Justice Antonin Scalia’s opinion for the unanimous court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the same-sex harassment case, in which, after noting that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” this did not mean that the statute could not be interpreted to apply to such a situation. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” Scalia wrote, “and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Woods found convincing Hively’s contention, argued to the court by Lambda Legal’s Greg Nevins, that two alternative theories would support her claim. The first follows a “comparative method in which we attempt to isolate the significance of the plaintiff’s sex to the employer’s decision: has she described a situation in which, holding all other things constant and changing only her sex, she would have been treated the same way?”  The second rests on an intimate association claim, relying on the Supreme Court’s 1967 ruling striking down state laws barring interracial marriages, Loving v. Virginia.  The Supreme Court held that a ban on interracial marriage was a form of race discrimination, because the state was taking race in account in deciding whom somebody could marry.  Similarly here, an employer is taking sex into account when discriminating against somebody because they associate intimately with members of the same sex.  After briefly describing these two theories, Wood wrote, “Although the analysis differs somewhat, both avenues end up in the same place: sex discrimination.”

Woods noted at least two rulings by other circuits under Title VII that had adapted Loving’s interracial marriage analysis to an employment setting, finding race discrimination where an employer discriminated against persons who were in interracial relationships, Parr v. Woodmen of the World Life Insurance Co., 791 F.2 888 (11th Cir. 1986), and Holcomb v. Iona College, 521 F.3d 130 (2nd Cir. 2008).  These citations were a bit ironic, since the 11th and 2nd Circuits have in recent weeks rejected sexual orientation discrimination claims under Title VII, in which the plaintiffs advanced the same analogy to support their Title VII claims.  These recent opinions were by three-judge panels that held themselves to be bound by prior circuit rulings.  Lambda Legal has already filed a petition for en banc review in the 11th Circuit case, and counsel for plaintiff in the 2nd Circuit case is thinking about doing the same.

Ultimately, Wood acknowledged, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’ The effort to do so has led to confusing and contradictory results, as our panel opinion illustrated so well.  The EEOC concluded, in its Baldwin decision, that such an effort cannot be reconciled with the straightforward language of Title VII.  Many district courts have come to the same conclusion.  Many other courts have found that gender identity claims are cognizable under Title VII.”

Woods recited the now well-worn argument about how it is a basic inconsistency in the law that a person can enter into a same-sex marriage on Saturday and then be fired without legal recourse for having done so when they show up at the workplace on Monday. That is still the state of the law in a majority of the states.

Wood acknowledged that this decision does not end the case. Because Hively’s original complaint was dismissed by the district court without a trial, she has not yet been put to the test of proving that her sexual orientation was a motivating factor in the college’s decision not to hire her or renew her adjunct contract.  And, what passed unspoken, the college might decide to petition the Supreme Court to review this ruling, although the immediate reaction of a college spokesperson was that the school – which has its own sexual orientation non-discrimination policy – denies that it discriminated against Hively, and is ready to take its chances at trial.

Judge Posner submitted a rather odd concurring opinion, perhaps reflecting the oddity of some of his comments during oral argument, including the stunning question posed to the college’s lawyer: “Why are there lesbians?” Posner, appointed by Reagan as an economic conservative and social libertarian, has evolved into a forceful advocate for LGBT rights, having satisfied himself that genetics and biology play a large part in determining sexual identity and that it is basically unfair to discriminate against LGBT people without justification.  He wrote the Circuit’s decision striking down bans on same-sex marriage in Indiana and Wisconsin in 2014.

In this opinion, he takes on the contention that it is improper for the court to purport to “interpret” the language adopted by Congress in 1964 to cover sexual orientation discrimination. After reviewing various models of statutory interpretation, he insisted that “interpretation can mean giving a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text) – a meaning that infuses the statement with vitality and significance today.”  He used as his prime example judicial interpretation of the Sherman Antitrust Act of 1890, adopted “long before there was a sophisticated understanding of the economics of monopoly and competition.”  As a result of changing times and new knowledge, he observed, “for more than thirty years the Act has been interpreted in conformity to the modern, not the nineteenth-century, understanding of the relevant economics.” Basically, the courts have “updated” the Act in order to keep it relevant to the present.

He argued that the same approach should be brought to interpreting Title VII, adopted more than half a century ago. This old law “invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted.”  And, after reviewing the revolution in understanding of human sexuality and public opinion about it, he concluded it was time to update Title VII to cover sexual orientation claims, even though “it is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII.”  Although some of the history he then recites might arouse some quibbles, he was able to summon some pointed examples of Justice Scalia employing this method in his interpretation of the Constitution regarding, for example, flag-burning and an individual right to bear arms.

“Nothing has changed more in the decades since the enactment of the statute than attitudes toward sex,” wrote Posner, going on to recite the litigation history of the struggle for marriage equality that culminated in 2015 with the Supreme Court’s ruling in Obergefell v. Hodges.

Although it might sound odd at times as a judicial opinion, Posner’s concurrence is eminently readable and packed full of interesting information, including his list of “homosexual men and women (and also bisexuals, defined as having both homosexual and heterosexual orientations)” who have made “many outstanding intellectual and cultural contributions to society (think for example of Tchaikovsky, Oscar Wilde, Jane Addams, Andre Gide, Thomas Mann, Marlene Dietrich, Bayard Rustin, Alan Turing, Alec Guinness, Leonard Bernstein, Van Cliburn, and James Baldwin – a very partial list).”

This brought to the writer’s mind a famous paragraph in Supreme Court Justice Harry Blackmun’s opinion rejecting a challenge to the traditional anti-trust exemption for professional baseball, in which Blackmun included his own list of the greatest professional baseball players in history (compiled through a survey of the Supreme Court’s members and their young legal clerks).

Instead of pursuing Judge Wood’s line of reasoning, Posner was ready to declare that sexual orientation discrimination is a form of sex discrimination without such detailed analysis. “The most tenable and straightforward ground for deciding in favor of Hively is that while in 1964 sex discrimination meant discrimination against men or women as such and not against subsets of men or women such as effeminate men or mannish women, the concept of sex discrimination has since broadened in light of the recognition, which barely existed in 1964, that there are significant numbers of both men and women who have a sexual orientation that sets them apart from the heterosexual members of their genetic sex (male or female), and that while they constitute a minority their sexual orientation is not evil and does not threaten society.  Title VII in terms forbids only sex discrimination, but we now understand discrimination against homosexual men and women to be a form of sex discrimination; and to paraphrase [Oliver Wendell Holmes, Jr.], ‘We must consider what this country has become in deciding what that [statute] has reserved.’”

In his concurring opinion Judge Flaum took a narrower approach, noting that Title VII was amended in 1991 to provide that “an unlawful employment practice is established when the complaining party demonstrates that … sex … was a motivating factor for any employment practice, even though other factors also motivated the practice.” In other words, discrimination does not have to be “solely” because of sex to violate Title VII.  It is enough if the individual’s sex was part of the reason for the discrimination.  In light of this, Flaum (and Ripple, who joined his opinion) would look to the analogy with discrimination against employees in interracial relationships.  In addition, he noted, “One cannot consider a person’s homosexuality without also accounting for their sex: doing so would render ‘same’ and ‘own’ meaningless” in dictionary definitions that define homosexuality in terms of  whether somebody is attracted to persons of “the same” or “their own” sex.  Clearly, “sex” is involved when people are discriminated against because they are gay.

Judge Sykes’s dissent channeled scores of cases going back to the early years of Title VII and argued against the method of statutory interpretation used by the various opinions making up the majority. “The question before the en banc court is one of statutory interpretation,” she wrote.  “The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion.  So does Judge Posner in his concurrence.  Neither is faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted.  The result is a statutory amendment courtesy of unelected judges.  Judge Posner admits this; he embraces and argues for this conception of judicial power.  The majority does not, preferring instead to smuggle in the statutory amendment under cover of an aggressive reading of loosely related Supreme Court precedents.  Either way, the result is the same: the circumvention of the legislative process by which the people govern themselves.”

Although Sykes conceded that sexual orientation discrimination is wrong, she was not ready to concede that one could find it illegal by interpretation of a 1964 statute prohibiting sex discrimination at a time when the legislature could not possibly have been intending to ban discrimination against LGBT people. As Posner pointed out, that issue wasn’t on the radar in 1964.  Thus, to Sykes, Bauer and Kanne, it was not legitimate for a court to read this into the statute under the guise of “interpretation.”

Speculating about the ultimate fate of this decision could go endlessly on. There are fierce debates within the judiciary about acceptable methods of interpreting statutes, and various theories about how to deal with aging statutes that are out of sync with modern understandings.

Posner’s argument for judicial updating allows for the possibility that if Congress disagrees with what a court has done, it can step in and amend the statute, as Congress has frequently amended Title VII to overrule Supreme Court interpretations with which it disagreed. (For example, Congress overruled the Supreme Court’s decision that discrimination against pregnant women was not sex discrimination in violation of Title VII.)  Posner’s approach will be familiar to those who have read the influential 1982 book by then-Professor (now 2nd Circuit Judge) Guido Calabresi, “A Common Law for the Age of Statutes,” suggesting that courts deal with the problem of ancient statutes and legislative inertia by “updating” statutes through interpretation to deal with contemporary problems, leaving it to the legislature to overrule the courts if they disagree.  This method is more generally accepted in other common law countries (British Commonwealth nations), such as Australia, South Africa, India and Canada, than in the United States, but it clearly appeals to Posner as eminently practical.

So far the Republican majorities in Congress have not been motivated to address this issue through amendments to Title VII, or to advance the Equality Act, introduced during Obama’s second term, which would amend all federal sex discrimination laws to address sexual orientation and gender identity explicitly. Perhaps they will be provoked to act, however, if the question gets up to the Supreme Court and the 7th Circuit’s view prevails.

With the possibility of appeals now arising from three different circuits with different views of the issue, Supreme Court consideration of this question is highly likely. Public opinion polls generally show overwhelming support for prohibiting sexual orientation and gender identity discrimination in the workplace, which might serve as a brake on conservative legislators who would otherwise respond adversely to a Supreme Court ruling approving the 7th Circuit’s holding.