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ACLU Reboots Gavin Grimm Challenge to Gloucester School Board Policy

Posted on: September 2nd, 2017 by Art Leonard No Comments

On August 2, the Richmond-based 4th Circuit Court of Appeals announced that instead of holding oral argument in Gavin Grimm’s lawsuit challenging the Gloucester County School Board’s bathroom access policy, it was sending the case back to the district court for a determination whether Grimm’s recent graduation from high school made the appeal moot.  Did Grimm still have standing to seek the injunctive relief that he sought? Grimm v. Gloucester County School Board, 2017 U.S. App. LEXIS 14158.  The three-judge panel had tentatively scheduled an oral argument for September to consider yet again whether Senior U.S. District Judge Robert G. Doumar erred when he dismissed Grimm’s Title IX sex discrimination claim against the Gloucester County School Board and denied Grimm’s motion for a preliminary injunction. The circuit panel speculated that its jurisdiction to decide the case may have been ended by Grimm’s graduation, but that it was not clear from the record before the court and the supplemental briefs filed by the parties earlier in July whether this is so, and the court concluded that more fact-finding was necessary before the issue of its jurisdiction could be decided.  A week later, however, Grimm’s lawyers from the ACLU agreed with the School Board to end the appeal concerning the preliminary injunction, submitting a stipulation to the 4th Circuit to that effect, resulting in a one-sentence order by that court dismissing the appeal.  Grimm v. Gloucester Bounty School Board, 2017 U.S. App. LEXIS 16697 (4th Cir. Aug. 30, 3017).  But they did not agree to end the case, instead filing an amended complaint on August 11, of which more details follow below.

Grimm’s mother originally filed suit on his behalf against the school board in July 2015, during the summer before his junior year, alleging that the Board’s policy of requiring students to use restrooms based on their biological sex rather than their gender identity violated Grimm’s right to be free of sex discrimination forbidden under Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14th Amendment.  Grimm sought a preliminary injunction so he could resume using the boys’ restrooms at the high school while the case was pending.  The Board moved to dismiss, arguing that Title IX did not apply to this dispute and that its action did not violate the Constitution.  Judge Doumar ruled on September 17, 2015, in favor of the Board’s motion to dismiss the Title IX claim, while reserving judgment on the 14th Amendment claim, and denied Grimm’s motion for a preliminary injunction to allow him to use the boys’ bathrooms as he appealed the dismissal.  While the case was pending before Judge Doumar, the U.S. Departments of Education and Justice filed a joint statement with the court supporting Grimm’s claim that barring him from using the boys’ bathrooms violated Title IX.

Ruling on Grimm’s appeal of the dismissal on April 19, 2016, the 4th Circuit focused on the document issued by the federal agencies, finding that the district court should have deferred to their interpretation of the Title IX regulations, finding it to be a reasonable interpretation of the regulations.  The court reversed Judge Doumar’s dismissal of the Title IX claim, and sent the case back to Doumar to reconsider Grimm’s request for a preliminary injunction.  Shortly thereafter, the Departments of Education and Justice sent a joint “Dear Colleague” letter to all the nation’s public schools that receive federal funds, more formally stating their position on Title IX coverage of the transgender facilities access issue and other issues relevant to equal educational opportunity for transgender students.  Responding to the Circuit’s remand, Doumar issued a preliminary injunction on June 23, 2016, too late to get Grimm access to the boys’ bathrooms during his junior year but potentially ensuring that he could use appropriate bathrooms at the high school during his senior year.  But that was not to be.  Even though Judge Doumar and the 4th Circuit refused to stay the preliminary injunction while the case was on appeal, the School Board successfully petitioned the Supreme Court for a stay while it prepared to file a petition to have the Supreme Court review the 4th Circuit’s ruling.  Thus, as the 2016-17 school year began, Grimm was still barred from using the boys’ bathrooms at his high school.

The Supreme Court subsequently granted the Board’s petition to review the 4th Circuit’s decision, continuing the stay of the preliminary injunction, and scheduled an oral argument to take place on March 28, 2017.  Meanwhile, Donald Trump was elected president, took office in January, and appointed Jeff Sessions to be Attorney General and Betsy DeVos to be Secretary of Education.  Sessions and DeVos disagreed with the Obama Administration’s interpretation of Title IX, and on February 22 they announced that the Departments of Education and Justice were “withdrawing” the Obama Administration’s “Dear Colleague” letter and issuing a new one that, in effect, took no position on the appropriate interpretation of Title IX, instead stating that the question of bathroom access in public schools should be decided by the states and localities, not the federal government.  The Supreme Court reacted to this development by granting the Solicitor General’s subsequent request to cancel the oral argument, vacated the 4th Circuit’s decision, and sent the case back to the 4th Circuit to address the merits of Grimm’s appeal as a matter of judicial interpretation of the relevant statutory and regulatory provisions, there no longer being an executive branch interpretation to which the court need defer. The 4th Circuit directed the district court to quash the preliminary injunction and tentatively scheduled an argument to be held in September.  After Grimm graduated in June, the parties filed supplemental briefs to update the court on what had happened since it last considered the case.

The School Board argued that the case had become moot because Grimm had graduated. “The School Board argues that, absent any allegation of a ‘particular intention to return to school after graduation,’ this change of status deprives Grimm of a continued interest in the litigation, rendering the case moot,” wrote the court in its brief order issued on August 2.  “The School Board states further that its bathroom policy does not necessarily apply to alumni, and that the issue of whether the policy is applicable to alumni is not yet ripe for adjudication.”  Grimm responded that it was enough that his possible “future attendance at alumni and school-community events” at the high school gave him a continuing concrete interest in obtaining the injunctive relief he was seeking in this lawsuit.  He also pointed out that the School Board’s “noncommittal statement” that the policy did “not necessarily apply” to alumni “falls short of a representation that the Board will voluntarily cease discriminating against” him.

The court does not have jurisdiction of the case unless there is an “actual case or controversy” between the parties. The Supreme Court has established that this means that the plaintiff, Grimm, must have a concrete interest in the outcome, which would mean that the policy he is challenging must actually affect him personally.  “Thus,” wrote the court, “a crucial threshold question arises in this appeal whether ‘one or both of the parties plainly lack a continuing interest’ in the resolution of this case such that it has become moot.”  The court decided that “the facts on which our jurisdiction could be decided are not in the record before us.”  The factual record in this case consisted of the sworn allegations that were presented to the district court in 2015 when it was ruling on the Board’s motion to dismiss the case, when Grimm was but a rising junior at the high school.  Thus, the 4th Circuit panel decided it was necessary to send the case back to the district court for “factual development of the record by the district court and possibly additional jurisdictional discovery.”  They were not sending the case back for a new ruling by the district court on the merits, just for a ruling on the question of mootness after additional fact-finding.  Any determination by Judge Doumar that the case was moot could, of course, be appealed by Grimm.

But litigating over the issue of mootness with respect to the preliminary injunction did not strike the ACLU as the best approach at this point in the litigation, so it secured agreement from the School Board to move the 4th Circuit to dismiss the appeal, and proceeded to file an amended complaint.  The new complaint supplements the original complaint with factual allegations bringing the story up to date, culminating with the following: “As an alumnus with close ties to the community, Gavin will continue to be on school grounds when attending football games, alumni activities, or social events with friends who are still in high school.”  This would support his continuing personal stake in the issue of appropriate restroom access at the school.  The complaint restates 14th Amendment and Title IX as sources of legal authority for the argument that the school board’s policy violates federal law.  The request for relief is reframed to reflect Grimm’s alumni status, seeking a declaration that the policy is illegal, nominal damages (symbolic of the injury done to Grimm by denying him appropriate restroom access), a permanent injunction allowing Grimm to use the same restrooms as “other male alumni,” his reasonable litigation costs and attorneys’ fees, and “such other relief as the Court deems just and proper.”  The school board can be expected to move to dismiss the amended complaint with the argument it made to the court in suggesting that the case was moot, but this time the standing question will be litigated solely with respect to Grimm’s alumni status going forward.

It appears from the docket number stamped on the amended complaint by the court clerk’s office, 4:15-cv-00054-AWA-DEM, that the case is now assigned to District Judge Arenda L. Wright Allen, who was appointed by President Obama in 2011. Judge Doumar, 87, who issued the earlier rulings for the district court, is a senior judge who was appointed by Ronald Reagan in 1981.

While this litigation drama was unfolding in Gloucester County, the Chicago-based 7th Circuit Court of Appeals ruled on May 30 in Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034, that Title IX prohibits a public school from refusing to let transgender students use bathrooms appropriate for their gender identity, so the issue has percolated further elsewhere in the country. The Kenosha School District filed a petition for certiorari with the Supreme Court on August 25.  So it is distinctly possible, that the action on this issue will move there and this case may well end up being put “on hold” by the court if the Supreme Court agrees to hear the Kenosha appeal.

Federal Court Refuses to Enjoin School District from Allowing Transgender Students to Use Facilities Consistent With Their Gender Identity

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

After rendering a bench ruling in mid-August in anticipation of the approaching resumption of school for the fall semester, U.S. District Judge Edward G. Smith released a lengthy opinion (running over 75 pages in LEXIS) on August 25, explaining why he was denying a preliminary injunction motion by plaintiffs in Doe v. Boyertown Area School District, 2017 U.S. Dist. LEXIS 137317, 2017 WL 3675418 (E.D. Pa.), in which the plaintiffs, cisgender students and their parents, sought to block the school district’s unwritten policy of allowing transgender students to use bathroom and changing room facilities consistent with their gender identity.

Alliance Defending Freedom (ADF), a non-profit law firm self-identified with conservative Christian principles which has filed similar lawsuits against other school districts, represents the plaintiffs in arguing that constitutional and common law privacy rights of the students are violated by the school district’s policy. In addition to local attorneys representing the school district, intervenors on behalf of defendants are represented by attorneys from the ACLU’s LGBT Rights Project and ACLU of Pennsylvania with cooperating attorneys from Cozen O’Connor’s New York and Philadelphia offices.

This case presents in many respects a mirror image of the lawsuits brought by transgender teens seeking the right to use bathroom and changing facilities at their high schools consistent with their gender identity. In both kinds of cases, testimony is presented that the plaintiffs have suffered emotional and physical harm because the schools’ usage policy interferes with their ability to use a convenient, non-stigmatizing restroom when they need it.  In this case, cisgender students affirmed that they were so traumatized at the prospect of encountering a “student of the other sex” – as they insist on calling transgender students – in the restroom or locker room, that they avoid using the facilities altogether during the school day, and the fear of such encounters haunts them throughout the day.  The court rejected the underlying premise, because Boyertown Area High School (referred to by the acronym BASH throughout the opinion) has provided numerous single-user facilities and alternative locations that would accommodate the plaintiffs’ concerns, and has made physical alterations in the common facilities to enhance the ability of individuals to avoid exposing themselves unclothed (fully or partially) to other students.  The plaintiffs’ position is to argue that transgender boys are really girls, and transgender girls are really boys, and the traditional of sex-segregated restroom and locker-room facilities most be preserved in order to protect the long-recognized privacy interests of cisgender people.  But to the court, the issue for decision in August 2017 had to be based on the facilities available for the upcoming academic year, as to which alterations and additions have changed the situation since the incidents during the 2016-17 school year that gave rise to the lawsuit.

The court sets out the factual allegations in great detail, including findings that this writer – having attended high school in the 1960s – found startling, such as a finding that few of the students at the high school actually use the showers after their gym classes. (When this writer attended high school, showering after gym was mandatory and closely monitored by the coaches, and the required freshman swimming course at his college prohibited students in the class from wearing anything in the pool.)  Another startling finding: that the high school, even before the recent renovations, had several single-user restrooms available to students, and not just in the nurse’s and administrative offices, so that any student seeking absolute privacy for their restroom needs could easily avail themselves of such facilities.

This lawsuit can be traced to several instances during the Fall Semester of 2016 when plaintiffs claim to have been startled, abashed, and disturbed to discover students whom they considered to be of the opposite sex in the locker room or restroom, leading them to approach administrators to complain and subsequently to involve their parents in further complaints. The transgender students were in these facilities after having obtained permission from school administrators who had determined that the students had sufficiently transitioned to make it appropriate. The administrators were determining, on a case-by-case basis, the students in question had transitioned sufficiently that it would have been awkward, unsettling, and perhaps even dangerous to them for them to use facilities consistent with the sex originally noted on their birth certificates.

The evidence presented to the court was that transgender students went through a transitional facilities usage period as they were transitioning in their gender presentation, generally preferring the single-user facilities until their transition was far enough along that they would feel more comfortable using facilities consistent with their gender expression and expected their presence would not cause problems. Indeed, there was testimony that when one transgender boy went into the girls’ restroom, he was chased out by the girls, who perceived him a boy and didn’t want him in there! Because surgical transition is not available under established standards of care before age 18, none of the transgender students at the high school had genital surgery, so their transitions were based on puberty-blocking drugs, hormones, grooming and dress.  One suspects that parents particularly objected to the presence of transgender girls who still had male genitals in the girls’ facilities, but there were no allegations that any transgender girl was exposing male genitals to the view of others in the common facilities.

When the issue arose and the administrators had to respond to a handful of protesting students and parents, they had long since received the “Dear Colleague” letter sent out by the Obama Administration’s Education and Justice Departments in May 2016, which advised that Title IX required public schools to accommodate transgender students by allowing them to use restrooms consistent with their gender identity and presentation. The Boyertown administrators, who did not seek authorization from the school board prior to problems arising, treated that letter as “the law of the land” and informally extended approval on a case-by-case basis to transgender students seeking permission to use appropriate facilities, a phenomenon which began to surface in that school district prior to the 2016 school year.  Not only did they refrain from adopting a formal written policy, but they also refrained from announcing the school’s policy to the student body or parents generally.  Thus, it is not surprising that some students were startled to encounter students who they considered to be of the “wrong sex” in their facilities.  The response of the administrators to the complaints was the this was the school’s policy and the students should just treat the situation as natural and adjust to it, which some students and their parents found unacceptable.

After the issue blew up during the 2016-2017 school year, the board of education voted 6-3 to back up the administrators, but there was still no formal written policy, and the school actually refused a demand by some parents to produce a written policy. Although the Trump Administration “withdrew” the Obama Administration’s interpretation of Title XI, the substitute letter issued in 2017 did not take a firm position on whether Title IX required such accommodations, merely asserting that the matter required further “study” and should be left to state and local officials to decide.  The Boyertown administrators decided to continue the policy they were following.  This lawsuit was first filed in March 2017, with an amended complaint adding more plaintiffs on April 18.

The complaint asserted claims under the 14th Amendment, Title IX, and Pennsylvania common and statutory law (the Public School Code, which mandates that public schools provide separate facilities for boys and girls).  They claimed a substantive due process violation (privacy), hostile environment sex discrimination in violation of Title IX, and Pennsylvania common law invasion of privacy in violation of public policy.

Judge Smith’s opinion thoroughly dissects the plaintiff’s arguments and carefully distinguishes the cases they cite as precedents, taking the perspective that the issue in deciding the motion for preliminary injunction is whether to preserve the status quo (the school district’s current policy of allowing transgender students, with permission given on a case-by-case basis depending upon their stage of transition and gender presentation, to the use the facilities with which they are comfortable), or to upset the status quo by requiring transgender students to restrict themselves to using single-user facilities or those consistent with their sex as identified at birth. There is a strong bias in considering preliminary injunctions in favor of preserving the status quo, so the plaintiffs had a heavy burden to persuade the court that they were likely to prevail on the merits of their claim in an ultimate ruling, and that the status quo policy inflicted real harm on them that would outweigh the harm that halting the policy would impose on the transgender students and the district.  As to both of those issues, Judge Smith found that plaintiffs had failed to make their case.

In particular, the school’s alteration and expansion of its facilities had significantly undermined the privacy arguments, and the court easily rejected the contention that the possibility of encountering one of about half a dozen transgender students in a high school with well over a thousand students had created a “hostile environment” for cisgender students. The court also noted that the common law privacy precedents concerned situations where the individual defendants had physically invaded the private space of the plaintiffs.  In this case, the individual defendants are school administrators, none of whom had personally invaded the private space of students using restroom and locker room facilities.

Judge Smith devoted a substantial portion of his opinion to recounting expert testimony, presenting a virtual primer on the phenomena of gender identity, gender dysphoria, and transition from a medical and social perspective. The opinion clearly and strongly rejects the plaintiffs’ argument that this case is about boys invading girls’ facilities or vice versa.  The tone and detail of the opinion reflect the considerable progress that has been made in educating courts and the public about these issues.

On the plaintiff’s likelihood of ultimately winning their case on the merits, Judge Smith pointed to the most definitive appellate ruling so far on the contested transgender bathroom issue, a recent decision by the U.S. Court of Appeals for the 7th Circuit involving a lawsuit by Ash Whitaker, a transgender student, against the Kenosha (Wisconsin) school district, which the school district asked the Supreme Court to review, coincidentally on the date that Judge Smith released this opinion.  No other federal circuit appeals court has issued a ruling on the merits of the constitutional and Title VII claims being put forth on this issue, although the 4th Circuit had in 2016 dictated deference to the Obama Administration’s interpretation in Gavin Grimm’s lawsuit against the Gloucester County (Virginia) school district, only to have that decision vacated by the Supreme Court last spring after the Trump Administration “withdrew” the Obama Administration’s “Dear Colleague” letter.  That case is still continuing, now focused on a judicial determination of the merits after the filing of an amended complaint by the ACLU.

Because ADF is on a crusade to defeat transgender-friendly facilities policies, it will most likely seek to appeal this denial of injunctive relief to the 3rd Circuit, which has yet to weigh in directly on the issue, although there are conflicting rulings by district courts within the circuit in lawsuits brought by transgender students.  ADF’s first step could be to seek emergency injunctive relief from the Circuit court and, failing that, the Supreme Court (which had during the summer of 2016 granted a stay of the preliminary injunction issued in the Grimm case).  If the Supreme Court grants the Kenosha school district’s petition, as seems likely, the underlying legal issues may be decided during its 2017-18 Term, before the Boyertown case gets to a ruling on the merits of plaintiffs’ claims.

Judge Smith was nominated to the district court by President Obama in 2013, winning confirmation from the Senate in 2014. A substantial part of his prior career involved service as a military judge, followed by a period of private practice and then service as a state court judge.  In his Senate confirmation vote he received more votes from Republicans than Democrats.  The Washington Post reported at the time that Smith was the first Obama judicial nominee to win more Republican than Democratic votes.

Sexual Orientation Discrimination Under Title VII in the 2nd Circuit: A Work in Progress

Posted on: May 11th, 2017 by Art Leonard No Comments

As the 2nd Circuit Court of Appeals ponders three petitions asking for en banc consideration of the question whether Title VII of the Civil Rights Act of 1964 can be interpreted to ban sexual orientation discrimination as a form of sex discrimination, a federal trial judge in Manhattan has ruled that “in light of the evolving state of the law,” it would be “imprudent” for the court to grant a motion to dismiss a gay plaintiff’s sexual orientation discrimination claim.

Senior District Judge Alvin K. Hellerstein, appointed by Bill Clinton in 1998, issued his ruling in Philpott v. State University of New York on May 3, the day after the third en banc petition was filed.   An en banc hearing in the 2nd Circuit involves participation by all eleven active judges in the circuit, plus any senior judges who participated in a three-judge panel decision that is being reheard en banc.  Appeals are normally heard by three-judge panels, which are bound to follow existing circuit precedents.  Only an en banc panel (or the Supreme Court) can reconsider and reverse such precedents.

The 2nd Circuit ruled in 2000, in the case of Simonton v. Runyon, that Title VII could not be interpreted to forbid sexual orientation discrimination.  This holding was reiterated by a second panel in 2005, in Dawson v. Bumble & Bumble, and yet again this year on March 27 in Christiansen v. Omnicom Group.  However, the 2nd Circuit’s Chief Judge, Robert Katzmann, who was sitting as a member of the panel in Christiansen, wrote a concurring opinion, joined by one of the other judges, arguing that the issue should be considered en banc in “an appropriate case.”  Katzmann’s discussion basically embraced the arguments articulated by the Equal Employment Opportunity Commission in its 2015 decision holding that David Baldwin, a gay air traffic controller, could bring a sexual orientation discrimination claim under Title VII against the U.S. Department of Transportation.

The first of the en banc petitions was filed on April 19 in Cargian v. Breitling USA, Inc., in which another Manhattan trial judge, George B. Daniels, dismissed a gay watch salesman’s Title VII sexual orientation discrimination claim, finding that 2nd Circuit appellate precedents binding on the court rejected sexual orientation claims as a form of sex discrimination.  Judge Daniels ruled on September 29, 2016, and Frederick Cargian filed an appeal to the 2nd Circuit.  When the Christiansen decision was issued on March 27, it became clear that Cargian’s appeal to a three-judge panel would be a waste of time and judicial resources, and the American Civil Liberties Union, representing Cargian along with the New York Civil Liberties Union and solo plaintiffs’ attorney Janice Goodman, decided to petition the Circuit to take the case up directly en banc.

The second petition was filed on April 28 by Matthew Christiansen’s attorney, Susan Chana Lask.   The three-judge panel in Christiansen’s case had refused to allow the case to continue on a sexual orientation discrimination theory, but had concluded that it was possible that Christiansen would be able to proceed under a gender stereotype theory.  The panel clarified the 2nd Circuit’s approach in such cases, rejecting the trial judge’s conclusion that if the factual allegations suggest that sexual orientation played a role in the discrimination suffered by the plaintiff, he would be not be allowed to proceed under Title VII.  The trial court’s approach overlooked an important element of Title VII, an amendment adopted in 1991 providing that a plaintiff is entitled to judgment if sex is a “motivating factor” in his or her case, even if other factors contributed to the employer’s discriminatory conduct.  The Supreme Court ruled in 1989 that discriminating against an employee because the employee fails to conform to gender stereotypes is evidence of discrimination because of sex.  In such a case, the sexual orientation of the plaintiff would be irrelevant, so long as the plaintiff could show that gender stereotyping was a motivating factor in their mistreatment.

At first it appeared that Christiansen would not seek en banc review, despite Judge Katzmann’s concurring opinion, as the panel unanimously voted to send the case back to the district court for consideration as a gender stereotyping case. Attorney Lask was quoted in newspaper reports as preparing to proceed to trial on the stereotyping theory.  The ACLU’s en banc petition changed the game plan, evidently, and Christiansen’s en banc petition was filed on April 28.

Meanwhile, on April 18, a different panel of the 2nd Circuit decided Zarda v. Altitude Express, once again holding that a gay plaintiff could not advance a sexual orientation discrimination claim under Title VII.  Gregory Antollino, an attorney for an executor of the Estate of Donald Zarda, a gay skydiving instructor who had died in a skydiving accident after the being discharged from his employment, filed a petition for en banc rehearing on May 2, with Stephen Bergstein of Bergstein & Ullrich as co-counsel representing a co-executor.

The very next day Judge Hellerstein issued his ruling, allowing Jeffrey Philpott, the gay former Vice President of Student Affairs at the State University of New York’s College of Optometry to pursue his Title VII sexual orientation discrimination, hostile environment and retaliation claims. Judge Hellerstein rejected the defendant’s alternative argument that even if sexual orientation discrimination is covered by Title VII, Philpott’s factual allegations were insufficient to support his claims.  However, Judge Hellerstein joined with several other district judges within the 2nd Circuit in ruling that an employee of an educational institution may not bring an employment discrimination claim under Title IX of the Education Amendments of 1992, which bans sex discrimination by educational institutions that receive federal money.  Although the plain language of Title IX can be interpreted to cover employment discrimination claims, Hellerstein agreed with other courts that have found that Congress did not intend to supplant Title VII, with its specific time deadlines and administrative exhaustion requirements, for employees of educational institutions who have sex discrimination claims.

After briefly describing the 2nd Circuit precedents, Hellerstein noted defendant’s argument that the court must dismiss the sexual orientation claims, and also Philpott’s request for leave to file an amended complaint focused on gender stereotyping.  “Neither relief is appropriate,” wrote the judge.  “The law with respect to this legal question is clearly in a state of flux, and the Second Circuit, or perhaps the Supreme Court, may return to this question soon.  In light of the evolving state of the law, dismissal of plaintiff’s Title VII claim is improper.”

Hellerstein then provided a summary of Judge Katzmann’s Christiansen concurrence, which he referred to more than once as a “majority concurrence” as it was signed by two of the three panel members. Hellerstein pointed to the 7th Circuit Court of Appeals en banc decision in Hively v. Ivy Tech Community College, issued on April 4, in which “the Seventh Circuit became the first Court of Appeals to unequivocally hold that ‘discrimination on the basis of sexual orientation is a form of sex discrimination’ and therefore cognizable under Title VII.”

“Among other reasons,” wrote Hellerstein, “the Seventh Circuit made this ruling ‘to bring our law into conformity with the Supreme Court’s teachings.’ The Seventh Circuit was also compelled by ‘the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without also discriminating on the basis of sex.’”

Hellerstein asserted that because Philpott “has stated a claim for sexual orientation discrimination, ‘common sense’ dictates that he has also stated a claim for gender stereotyping discrimination, which is cognizable under Title VII. The fact that plaintiff has framed his complaint in terms of sexual orientation discrimination and not gender stereotyping discrimination is immaterial.  I decline to embrace an ‘illogical’ and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination, and in so doing, I join several other courts throughout the country.”

A few days after Hellerstein’s ruling, another panel of the 2nd Circuit avoided dealing with the same question in Magnusson v. County of Suffolk, an appeal from a May 2016 ruling by District Judge Sandra Feuerstein in the Eastern District of New York (Long Island).  Judge Feuerstein had rejected Arline Magnussen’s sexual orientation harassment Title VII claim on alternative grounds: that 2nd Circuit precedent does not allow sexual orientation claims, and that the employer could not be held liable under Title VII because Magnussen had unreasonably failed to invoke the employer’s internal grievance procedure to deal with her harassment complaint.  In a short memorandum signed by the Clerk of the Court, the 2nd Circuit ruled on May 11 that it need not address the Title VII interpretation issue in light of the district court’s finding that the employer could not held liable for whatever harassment the plaintiff might have suffered.

In terms of en banc review, in both Cargian and Zarda the court would face a case where the only stereotyping claim that would be viable would be that as gay men the plaintiffs did not conform to the stereotype that men should be attracted to women, so it would have to deal directly with the question whether sexual orientation is, as the EEOC stated and the 7th Circuit accepted, “necessarily” sex discrimination.  In Christiansen, the appellate panel found that the plaintiff might invoke other gender stereotype issues to make a viable claim under Title VII under the Circuit’s existing precedents, thus providing a less certain vehicle for getting the Circuit to confront the central legal issue.

If the 2nd Circuit grants the Christiansen or Cargian petitions, the en banc panel would consist of the eleven active members of the court.  If it grants the Zarda petition, those judges could be joined by two senior judges, Robert Sack and Gerard Lynch, who sat on the three-judge panel.  Of the eleven active judges, a majority were appointed by Democratic presidents: three by Clinton and four by Obama.  If the senior judges are added, a thirteen-member panel would include four appointed by Clinton and five appointed by Obama.  It is not clear from the Circuit’s published rules whether the senior judges could participate if the Circuit decides to consolidate the cases for rehearing en banc, but it is possible that they could only participate in deciding the Zarda case.

4th Circuit Judges Hail Gavin Grimm as a Civil Rights Leader

Posted on: April 10th, 2017 by Art Leonard No Comments

A pair of federal appeals court judges have saluted Gavin Grimm, a transgender high school senior, as a civil rights leader in the struggle to establish equal rights for transgender people under the law.

On April 7, the Richmond-based 4th Circuit Court of Appeals granted a motion by the Gloucester County (Virginia) School District to vacate a preliminary injunction issued last summer by the U.S. District Court, which had ordered the school district to allow Grimm, a transgender boy, to use the boys’ restrooms at the high school during his senior year.  G.G. v. Gloucester County School Board, 2017 WL 1291219.

That Order was quickly stayed by the U.S. Supreme Court, which then agreed to hear the school board’s appeal of the Order last fall. However, after the Trump Administration withdrew the Obama Administration’s interpretation of Title IX of the Education Amendments of 1972, to which the 4th Circuit had deferred in ordering the district court to issue the Order, the Supreme Court cancelled the scheduled oral argument and returned the case to the 4th Circuit.  Although the Order is now vacated, presumably the 4th Circuit still retains jurisdiction to decide whether the district court was correct in its decision to dismiss Gavin Grimm’s sex discrimination claim under Title IX in the absence of an administrative interpretation to which to defer, since it was Grimm’s appeal of the dismissal that brought the case to the 4th Circuit in the first place.

Although the court granted the school district’s unopposed motion to vacate the Order, a member of the panel, Senior Circuit Judge Andre M. Davis, was moved to write a short opinion reflecting on the case. Circuit Judge Henry M. Floyd directed that Davis’s opinion be published together with the 4th Circuit’s order, and Judge Paul V. Niemeyer, who had dissented from the 4th Circuit’s decision, agreed to the publication.

Davis’s eloquent brief opinion deserves to be read in full. Throughout the opinion, Grimm is referred to by his initials, as the case was filed on his behalf by his mother and stalwart champion in his struggle for equal rights, Deirdre Grimm.

DAVIS, Senior Circuit Judge, concurring:

G.G., then a fifteen-year-old transgender boy, addressed the Gloucester County School Board on November 11, 2014, to explain why he was not a danger to other students. He explained that he had used the boys’ bathroom in public places throughout Gloucester County and had never had a confrontation. He explained that he is a person worthy of dignity and privacy. He explained why it is humiliating to be segregated from the general population. He knew, intuitively, what the law has in recent decades acknowledged: the perpetuation of stereotypes is one of many forms of invidious discrimination. And so he hoped that his heartfelt explanation would help the powerful adults in his community come to understand what his adolescent peers already did. G.G. clearly and eloquently attested that he was not a predator, but a boy, despite the fact that he did not conform to some people’s idea about who is a boy.

Regrettably, a majority of the School Board was unpersuaded. And so we come to this moment. High school graduation looms and, by this court’s order vacating the preliminary injunction, G.G.’s banishment from the boys’ restroom becomes an enduring feature of his high school experience. Would that courtesies extended to others had been extended to G.G.

Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals—Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few—who refused to accept quietly the injustices that were perpetuated against them. It is unsurprising, of course, that the burden of confronting and remedying injustice falls on the shoulders of the oppressed. These individuals looked to the federal courts to vindicate their claims to human dignity, but as the names listed above make clear, the judiciary’s response has been decidedly mixed. Today, G.G. adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, “the arc of the moral universe is long, but it bends toward justice.” G.G.’s journey is delayed but not finished.

G.G.’s case is about much more than bathrooms. It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It’s about governmental validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity. His case is part of a larger movement that is redefining and broadening the scope of civil and human rights so that they extend to a vulnerable group that has traditionally been unrecognized, unrepresented, and unprotected.

G.G.’s plight has shown us the inequities that arise when the government organizes society by outdated constructs like biological sex and gender. Fortunately, the law eventually catches up to the lived facts of people; indeed, the record shows that the Commonwealth of Virginia has now recorded a birth certificate for G.G. that designates his sex as male.

G.G.’s lawsuit also has demonstrated that some entities will not protect the rights of others unless compelled to do so. Today, hatred, intolerance, and discrimination persist — and are sometimes even promoted — but by challenging unjust policies rooted in invidious discrimination, G.G. takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail, and that the core dignity of every one of our brothers and sisters is respected by lawmakers and others who wield power over their lives.

G.G. is and will be famous, and justifiably so. But he is not “famous” in the hollowed-out Hollywood sense of the term. He is famous for the reasons celebrated by the renowned Palestinian-American poet Naomi Shihab Nye, in her extraordinary poem, Famous. Despite his youth and the formidable power of those arrayed against him at every stage of these proceedings, “[he] never forgot what [he] could do.”

Judge Floyd has authorized me to state that he joins in the views expressed herein.

S. Nye, “Famous”:

The river is famous to the fish.

The loud voice is famous to silence, which knew it would inherit the earth before anybody said so.

The cat sleeping on the fence is famous to the birds watching him from the birdhouse.

The tear is famous, briefly, to the cheek.

The idea you carry close to your bosom is famous to your bosom.

The boot is famous to the earth, more famous than the dress shoe, which is famous only to floors.

The bent photograph is famous to the one who carries it and not at all famous to the one who is pictured.

I want to be famous to shuffling men who smile while crossing streets, sticky children in grocery lines, famous as the one who smiled back.

I want to be famous in the way a pulley is famous, or a buttonhole, not because it did anything spectacular, but because it never forgot what it could do.

Supreme Court Will Not Decide Transgender Title IX Case This Term

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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