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11th Circuit Panel Splinters Over Lesbian’s Appeal of Title VII Dismissal

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

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit issued a divided ruling on March 10 holding that a lesbian plaintiff suing for discrimination under Title VII of the Civil Rights Act of 1964 could file an amended complaint alleging that she suffered discrimination because of sex stereotyping, but upholding the district court’s dismissal of her claim that sexual orientation discrimination violates the statute.  A dissenting judge, agreeing with the Equal Employment Opportunity Commission (EEOC), which submitted an amicus brief in the case, and Lambda Legal, which was appointed to represent the plaintiff on appeal, argued that the plaintiff should be allowed to pursue her sexual orientation discrimination claim as well.  Lambda Legal, representing the appellant, immediately announced that it would petition for rehearing “en banc” before the entire 11th Circuit bench.

Unsurprisingly, the judges rejecting the sexual orientation claim, Circuit Judge William Pryor and Florida District Judge Jose Martinez, were appointed by President George W. Bush.  The dissenter, Circuit Judge Robin Rosenbaum, was appointed by President Barack Obama.

This case is one of appeals recently argued in three different federal circuits presenting the question whether sexual orientation discrimination claims are covered as “discrimination because of sex” under Title VII.  The Chicago-based 7th Circuit heard argument “en banc” on November 30, and the New York-based 2nd Circuit heard three-judge panel argument in two different appeals in January. So far, no federal circuit court has ruled favorably on such a claim, although many have ruled that gay plaintiffs can sue under Title VII on gender-based sex stereotyping claims, depending on their factual allegations.  There are older court of appeals precedents in most circuits rejecting sexual orientation discrimination claims, as such, under Title VII.  The Supreme Court has never directly ruled on the question.

In this case, Evans v. Georgia Regional Hospital, plaintiff Jameka Evans claimed that she was discriminated against in her position as a security officer at the hospital because of both gender non-conformity and sexual orientation.  Evans is a “butch” lesbian who claims she was discriminated against because she failed to carry herself in a “traditional womanly manner” and that “it was ‘evident’ that she identified with the male gender, because of how she presented herself – ‘(male uniform, low male haircut, shoes, etc.’),” wrote Judge Martinez.

She filed her case in federal district court in Savanah, Georgia, without a lawyer (“pro se”). The district judge, J. Randal Hall, referred her case to a magistrate judge to rule on procedural issues and “screen” the claim, as is usually done with “pro se” cases.  Magistrate Judge George R. Smith found procedural problems and, applying old circuit precedent, held that the claim of sexual orientation discrimination could not be brought under Title VII.  Smith recommended dismissal of the case. Lambda Legal submitted an amicus brief, urging Judge Hall to reject the Magistrate’s recommendation, but Hall dismissed without reference to Lambda’s arguments.  However, Hall then appointed Lambda to represent Evans on appeal to the 11th Circuit, and Gregory Nevins from Lambda’s Atlanta office argued the appeal.  The hospital never responded to the complaint and was not represented at the one-sided argument before the court of appeals.

At the heart of this appeal and of the other pending cases on the same question is the effect of two Supreme Court rulings, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services. In the first of these, the Court ruled that an employer’s denial of a partnership to a woman because of her failure to conform to the employer’s stereotyped view of how women should behave and present themselves was evidence of discrimination “because of sex” in violation of Title VII.  In the second, the Supreme Court overturned the lower court’s dismissal of a same-sex harassment case in a unanimous opinion authored by Justice Antonin Scalia holding that the interpretation of discrimination “because of sex” was not limited based on the intentions of Congress when it enacted the statute in 1964.  Scalia commented that “comparable evils” to those that Congress sought to address might be covered by the statute, and that we are governed by the language of our statutes as adopted by Congress, not by the presumed intentions expressed by individual legislators or committees as reflected in the legislative history.  Thus, a claim by a man that he was subjected to sexual harassment by male co-workers could be dealt with under Title VII, even if members of Congress did not anticipate or intend that such cases could be brought under Title VII.

LGBT rights advocates have used these two Supreme Court cases to argue that gay and transgender plaintiffs who suffer discrimination because of their sexual orientation or gender identity should be able to bring sex discrimination claims under Title VII. Sex stereotyping is arguably present to some extent in all such cases and, at a more fundamental level, anti-gay and anti-trans discrimination is “necessarily” because of sex.  These arguments persuaded the EEOC during the Obama Administration, resulting in administrative rulings in cases raised by LGBT federal employees, and have also persuaded some federal district judges.  Several federal courts of appeals have accepted the sex stereotyping argument, but only to a limited extent, according to the extensive concurring opinion in Evans’s case by Judge Pryor.  So far, no federal circuit court has accepted the argument that an otherwise gender-conforming gay person can bring a sex discrimination claim under Title VII.

Judge Martinez premised his vote to reject the sexual orientation discrimination claim on a 1979 decision by the 5th Circuit, Blum v. Gulf Oil Corporation, 597 F.2d 936, in which that court said that “discharge for homosexuality is not prohibited by Title VII” as an alternative basis for its ruling.  Effective on September 30, 1981, a statute divided the old 5th Circuit in half, assigning Georgia to the newly-created 11th Circuit. At that time, the 11th Circuit ruled that former 5th Circuit cases would be treated as precedent in the new 11th Circuit, so this case counts as a binding circuit precedent.  Lambda argued that the 1979 ruling is no longer valid in light of the 1989 Price Waterhouse decision and the 1999 Oncale decision.  Martinez and Pryor both rejected that argument, but dissenting Judge Rosenbaum embraced it.  At the oral argument, Judge Pryor had observed that in light of the Blum precedent, the three judge panel most likely could not rule in favor of Evans on this point, as only an en banc panel could reverse circuit precedents.

As to the sex stereotyping claim, Martinez asserted that Evans’ pro se complaint “failed to plead facts sufficient to create a plausible inference that she suffered discrimination. In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.”  However, he wrote, it was inappropriate for the district judge to dismiss her case outright rather than allowing her to file an amended complaint, since her theory of sex stereotyping discrimination was a theory accepted in the 11th Circuit and it was possible that, in light of the court’s discussion of her claim, she might be able to meet these pleading deficiencies in an amended complaint.  It is customary in pro se cases to allow the plaintiff to file an amended complaint if she is asserting a claim under a valid legal theory and there is a possibility that a better framed complaint could survive screening.

Pryor’s concurring opinion agreed that the magistrate erred in asserting that a sex stereotyping argument by a lesbian plaintiff was just “another way to claim discrimination based on sexual orientation,” and thus Evans should get a second chance to frame a complaint that might survive review. However, he argued at length to refute the arguments by the EEOC and Judge Rosenbaum that sexual orientation discrimination claims were “necessarily” sex discrimination claims.  Pryor insisted on a strict distinction between “status” and “conduct,” arguing that sex stereotyping claims were tied to the plaintiff’s conduct in failing to conform to gender stereotypes.  Thus, a claim of sexual orientation discrimination not accompanied by factual allegations about the plaintiff’s gender non-conformity fell short, in his view, of coming within the compass of discrimination “because of sex.”  He was not willing to accept the argument that being sexually attracted to members of the same-sex would suffice to constitute non-conformity with sexual stereotypes.

Judge Rosenbaum took a diametrically opposite approach, embracing a theoretical description of how Price Waterhouse had changed Title VII law by extending prior sex stereotyping cases to adopt a “prescriptive stereotyping” model. In prior cases, the Supreme Court had condemned “ascriptive stereotyping,” situations where an employer discriminated against a class of employees because of a stereotype about the class.  For example, an employer required women to contribute more to its pension plan than men in order to get the same monthly benefits upon retirement, based on the stereotype that women live longer than men so it would all “even out” in the end.  The Supreme Court condemned this practice as sex discrimination, finding that the statute protects individuals from being treated based on class-based stereotypes.  In Price Waterhouse, the Court for the first time condemned “prescriptive stereotyping,” where an employer discriminated against an employee because she failed to conform to a sexual stereotype, presenting a demeanor which was not traditionally feminine.

Applying this to the sexual orientation case, Rosenbaum accepted the argument that in such cases the employer was discriminating because the employee violated the stereotypical view that men are supposed to be attracted to women, not to men, and vice versa. Furthermore, she found that it was clearly sex discrimination to treat a woman differently based on whether she was attracted to men or women.

Judge Rosenbaum argued that Pryor’s opinion was “at war” with his vote a decade ago that allowed a sex discrimination claim under the Equal Protection Clause by a transgender employee of the Georgia legislature. Indeed, Pryor’s vote in the former case, Glenn v. Brumby, had given the plaintiff hope in this case that the panel might rule in her favor.  Pryor devoted considerable effort in his concurring opinion to explaining why he found this case to be different, once again relying on the “status” and “conduct” distinction.  Cross-dressing and announcing plans to transition were “conduct,” in his view, while having a sexual orientation was “status.”  He argued that sex stereotyping theory was concerned with conduct, not status, in its focus on gender non-conformity.

The sharp division among the judges may lead the 11th Circuit to agree to hear the case en banc, especially noting that one member of the panel was a district judge.  The federal judiciary is so short-handed as a result of the Republican-controlled Senate’s stonewalling of President Obama’s court of appeals nominees during his second term that it has become increasingly common for some particularly short-staffed circuits to fill-out three-judge panels by “designating” district court judges to provide the third member to make up a panel.  These district judges do not participate if the case is reargued en banc.  Furthermore, with the 7th Circuit having held en banc argument on this question recently, it seems clear that many federal judges believe it is time to reconsider the issue.  Meanwhile, decisions from the 7th and 2nd Circuits are eagerly awaited, especially if they create a “circuit split” that would entice the Supreme Court to agree to take up the issue.

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.

Another Federal Judge Lets Gay Plaintiff Pursue Discrimination Claim under Title VII

Posted on: November 22nd, 2016 by Art Leonard No Comments

One of the nation’s most senior federal trial judges, Warren W. Eginton (age 92) of Connecticut, rejected an employer’s motion to dismiss a Title VII sex discrimination claim brought by an openly gay employee in a November 17 ruling.  Boutillier v. Hartford Public Schools, 2016 U.S. Dist. LEXIS 159093, 2016 WL 6818348 (D. Conn.).  Eginton, who was appointed by Jimmy Carter in 1979 and has been a senior judge (semi-retired) since 1992, accepted the argument that Title VII can be interpreted to ban sexual orientation discrimination, despite prior contrary rulings by the U.S. Court of Appeals for the 2nd Circuit, to which his decision can be appealed.

 

Eginton’s ruling came less than two weeks after a federal district judge in Pennsylvania, Cathy Bissoon, appointed by Barack Obama, issued a similar ruling in EEOC v. Scott Medical Health Center, bucking contrary appellate precedent in the 3rd Circuit Court of Appeals.  Could this be the beginning of a trend?

 

Lisa Boutillier, a lesbian who formerly taught in the Hartford Public School system, claimed that she had suffered discrimination and retaliation because of her sexual orientation and physical disability in violation of the Connecticut Fair Employment Practices Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act.  Because Connecticut law explicitly bans sexual orientation and disability discrimination, she could have brought her case in state court and, by confining her claims to state law, she could have avoided ending up in federal court where adverse circuit precedent might have doomed her Title VII claim.  Instead, however, her attorney, Margaret M. Doherty, included the federal claims and filed in the U.S. District Court, prompting the school district to file a motion arguing that Title VII does not cover this case.  The case could remain in Judge Eginton’s court only if he found that Boutillier could assert a potentially valid claim under either or both of the Americans with Disabilities Act or Title VII of the Civil Rights Act. Eginton concluded that Boutillier failed to allege facts sufficient to qualify as a person with a disability under the ADA, so her ability to maintain the action in federal court turned entirely on whether she could allege a sex discrimination claim under Title VII.       There is little doubt from her factual allegations that if Title VII covers this case, Boutillier will have stated a potentially valid claim and avoid summary judgment against her.

 

Judge Eginton devoted most of his opinion to the Title VII question.  He sharply disputed the Second Circuit’s prior rulings refusing to allow sexual orientation discrimination claims under Title VII.  “Early interpretations of Title VII’s sex discrimination provisions reached illogical conclusions based on a supposed traditional concept of discrimination, which, for example, determined that discrimination based on pregnancy was not discrimination based on sex,” he began his analysis, noting that Congress had overruled that mistaken early Supreme Court decision by amending Title VII.  He said that the pregnancy case “and other similar decisions that imposed incongruous traditional norms were misguided in their interpretations regardless of whether Congress had been able to overrule them.”  He charged that these early cases were mistaken because “they failed to take the ordinary meaning of the Act’s text to its logical conclusions . . . .  The converse of the majority’s decision,” wrote Eginton, “and equally absurd, would be to hold that an exclusion in coverage for prostate cancer does not discriminate against men based on sex.  Such conclusion represent a fundamental failure of ordinary interpretation.”

 

He found a similar error of reasoning in the Second Circuit’s approach to sexual orientation claims.  He noted that when Congress overruled the pregnancy case, the House Report stated: “It is the Committee’s view that the dissenting Justices correctly interpreted the Act.”  The 2nd Circuit has premised its view on lack of legislative history showing that Congress intended to protect gay people from discrimination when it included “sex” in Title VII in 1964.  “Acknowledging that the legislative history on whether sexual orientation should be included in the category of sex under Title VII is slight,” wrote Eginton, “it is difficult to glean the absence of prior intention merely from subsequent efforts by Congress to reinforce statutory civil rights protections” by adding “sexual orientation” to federal law, as the 2nd Circuit has repeatedly done.  He pointed out that the Supreme Court has cautioned against relying on legislative inaction as an indication of legislative intent.

 

More importantly, however, he wrote, “straightforward statutory interpretation and logic dictate that sexual orientation cannot be extricated from sex: the two are necessarily intertwined in a manner that, when viewed under the Title VII paradigm set forth by the Supreme Court, place sexual orientation discrimination within the penumbra of sex discrimination.”

 

The judge pointed out the inconsistency between the 2nd Circuit’s approach to sexual orientation and its cases about race discrimination.  The 2nd Circuit has accepted the argument that it is race discrimination when an employer discriminates against an employee for engaging in an interracial relationship.  “The logic is inescapable,” wrote Eginton: “If interracial association discrimination is held to be ‘because of the employee’s own race,’ so ought sexual orientation discrimination be held to be because of the employee’s own sex.”  The 2nd Circuit’s cases are “not legitimately distinguishable,” he argued.  “If Title VII protects individuals who are discriminated against on the basis of race because of interracial association (it does), it should similarly protect individuals who are discriminated against on the basis of sex because of sexual orientation – which could otherwise be named ‘intrasexual association.’”

 

He pointed out that the Supreme Court’s key decision in Price Waterhouse v. Hopkins “bolsters” his conclusion, in holding that “sex stereotyping could constitute discrimination because of sex. . .  Indeed, stereotypes concerning sexual orientation are probably the most prominent of all sex related stereotypes, which can lead to discrimination based on what the Second Circuit refers to interchangeably as gender non-conformity.”  The 2nd Circuit has refused to extend this reasoning to sexual orientation cases, however, using an analysis that Eginton maintains is “inherently unmanageable, as homosexuality is the ultimate gender non-conformity, the prototypical sex stereotyping animus.”

 

He quoted extensively from a recent 7th Circuit decision, Hively v. Ivy Tech Community College, where a 3-judge panel of that court dismissed a sexual orientation discrimination claim because of circuit precedent, but two members of the panel submitted an opinion suggesting that the circuit should be reconsidering its position.  Since then, the 7th Circuit has voted to grant “en banc” review in the case, with reargument scheduled for November 30.

 

Eginton pointed out the paradox stemming from the 2nd Circuit’s position.  “Essentially, employers are prohibited from discriminating against employees for exhibiting stereotypical gay behavior, yet, at the same time, employers are free to discriminate against employees for actually being gay.”  Thus, Eginton, concluded, he would follow the lead of the 2nd Circuit’s interracial discrimination case instead of its past dismissal of sexual orientation discrimination claims “by interpreting the ordinary meaning of sex under Title VII to include sexual orientation, thereby obviating the need to parse sexuality from gender norms.”  Eginton pointed out that the EEOC adopted this view in 2015, the 7th Circuit agreed to a full rehearing in Hively, and a 2nd Circuit panel will soon rule on appeals from trial court dismissals of sexual orientation claims in several cases from New York.  While the 2nd Circuit’s expected ruling on those appeals “may ultimately decide the fate of plaintiff’s Title VII claims,” he wrote, “in the meantime, summary judgment will be denied.  Plaintiff has adequately established a right to protection under Title VII.”

New Court Ruling Shows What May Be Lost Due to Trump/Pence Election

Posted on: November 17th, 2016 by Art Leonard No Comments

A November 4 ruling in a sexual orientation discrimination case that was brought by the Equal Employment Opportunity Commission (EEOC) shows that progress on LGBTS rights may be lost as a result of the election of Donald Trump and Mike Pence. The ruling in EEOC v. Scott Medical Health Center, 2016 U.S. Dist. LEXIS 153744, 2016 WL 6569233 (W.D. Pa.), was issued by U.S. District Judge Cathy Bissoon, who was nominated to the federal district court in Pittsburgh by President Obama in 2010 and confirmed by the Senate in October 2011 by a vote of 82-3.  The judge, a Brooklyn native, was reportedly the first woman of Indian descent to sit as a federal judge when she took her previous position as a U.S. Magistrate Judge in 2008. In this ruling, the judge held that Title VII may be used to protect gay people from sexual orientation discrimination.

In this case, Dale Baxley was hired in mid-July 2013 by Scott Medical Health Center in a telemarketing position. He claims that he was subjected by his manager, Robert McClendon, to “a continuing course of unwelcome and offensive harassment because of his sex” that created a hostile work environment.  According to the Complaint filed in the district court, McClendon “routinely made unwelcome and offensive comments about Baxley, including but not limited to regularly calling him ‘fag,’ ‘faggot,’ ‘fucking faggot,’ and ‘queer,’ and making statements such as ‘fucking queer can’t do your job.’”  The Complaint also alleges that after McClendon found out that Baxley is gay and had a same-sex partner, he “made highly offensive statements to Baxley about Baxley’s relationship with the partner such as saying, ‘I always wondered how you fags have sex,’ ‘I don’t understand how you fucking fags have sex,’ and ‘Who’s the butch and who is the bitch?’”  Baxley was gone from the job after about a month of McClendon’s verbal abuse, a victim – he claims – of “constructive discharge.”  That is, his working conditions were so miserable that he was compelled to quit.

Ironically, the EEOC’s lawsuit on behalf of Baxley resulted not from a charge he filed but from the agency’s investigation of discrimination charges filed with the Pittsburgh office by five of Baxley’s former female co-workers. These women alleged that they were subjected to sexual harassment by McClendon, including “unwanted touching so frequently and severely that it created a hostile and offensive work environment and resulted in adverse employment decisions being taken against them.”  While investigating these charges, the agency learned about McClendon’s treatment of Baxley and Baxley’s claim that he had been constructively discharged.

At the end of the investigation, the EEOC issued a “Letter of Determination” to Scott Medical Health Center stating that the investigation “also revealed that McClendon harassed a male employee because of sex, specifically and repeatedly referring to the male employee as a ‘faggot,’ and repeatedly asking about the employee’s sexual experiences and preferences. The investigation revealed that McClendon targeted this male employee because he did not conform to what McClendon believed was acceptable or expected behavior for a male because of his association with members of the same sex rather than the opposite sex.”  The letter concluded that McClendon’s conduct created a hostile environment resulting in the constructive discharge of Baxley.  The EEOC attempted unsuccessfully to achieve a conciliation agreement with the employer, then filed this lawsuit.

This was the first lawsuit that the EEOC filed on behalf of a gay former employee alleging that his discharge was “because of sex” in violation of Title VII of the Civil Rights Act of 1964. In July 2015, the agency had reversed its position of half a century when it ruled in Baldwin v. Foxx that the U.S. Transportation Department may have violated Title VII when it denied a promotion to a gay air traffic controller.  After accepting the view that sexual orientation claims can be asserted under Title VII, the agency was on the lookout for appropriate private sector cases to bring, in order to vindicate a public policy against such discrimination as well as seeking a remedy for the employee involved.  The agency was seeking to establish court precedents that would lock its interpretation into the case law.  Prior to this case filing, all of the Title VII sexual orientation claims presented to federal courts had been lawsuits filed by individual discrimination victims, not by the federal agency.

The Health Center asked the court to dismiss the EEOC’s complaint, arguing that Title VII does not prohibit discrimination based on sexual orientation, citing two precedents from the U.S. Court of Appeals for the 3rd Circuit, Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257 (3rd Cir. 2001), and Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3rd Cir. 2009), in support of that argument.  But Judge Bissoon found that in those prior decisions, the court of appeals had not been presented with all the arguments that the EEOC has developed in support of its 2015 change of position on this issue, and more recent events have undermined the earlier rulings, so she concluded that those rulings – by the court with direct appellate authority over district court decisions from Pennsylvania – did not compel dismissal of this complaint.

The EEOC advanced three lines of argument in support of its position. First, that Baxley was “targeted because he is a male, for had he been female instead of a male, he would not have been subjected to discrimination for his intimate relationships with men.”  Second, the he was “targeted and harassed because of his intimate association with someone of the same sex, which necessarily takes Baxley’s sex into account.”  And, third, that he was “targeted because he did not conform to his harasser’s concepts of what a man should be or do.”  This last argument is a version of the “sex stereotype” theory that the Supreme Court approved in 1989 in Price Waterhouse v. Hopkins.

Judge Bissoon said that the EEOC’s three arguments were actually just one argument stated three different ways, “with the singular question being whether, but for Mr. Baxley’s sex, would he have been subjected to this discrimination or harassment. The answer, based on these allegations, is no.”

For purposes of ruling on a motion to dismiss a claim, the court assumes that the plaintiff’s factual allegations are true, and asks whether, based on those facts, the plaintiff has a plausible legal claim. Thus, Judge Bissoon was ruling, if the EEOC can prove these factual allegations, it will win the case.

Judge Bissoon held, straightforwardly, that “Title VII’s ‘because of sex’ provision forbids discrimination on the basis of sexual orientation.” This statement directly contradicts the two prior 3rd Circuit rulings, but Judge Bissoon found that it was consistent with how the law had developed under Title VII, dating back as early as 1983 when the Supreme Court began “broadening” its interpretation of sex discrimination in a series of cases culminating with Price Waterhouse in 1989.  She also noted that at least one federal appeals court, the Cincinnati-based 6th Circuit, has already used the sex stereotyping theory to extend protection to a transgender plaintiff.

As the EEOC has done, Judge Bissoon quoted Justice Scalia’s statement in the Supreme Court’s 1998 same-sex harassment case, Oncale v. Sundowner Offshore Services, that “statutory prohibitions often go beyond the principal evil [that Congress intended to address] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Thus, the lack of any evidence that Congress intended to prohibit sexual orientation discrimination in 1964 does not require rejecting a sexual orientation discrimination claim in 2016.

Referring back to Price Waterhouse, the judge wrote, “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality. As the EEOC states, ‘discrimination against a person because of the sex of that person’s romantic partner necessarily involves stereotypes about “proper” roles in sexual relationships – that men are and should only be sexually attracted to women, not men.’  This discriminatory evil is more than reasonably comparable to the evil identified by the Supreme Court in Price Waterhouse.  Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two.”

And the judge found that this argument was not presenting in its fully developed form to the 3rd Circuit in its earlier cases, so it had not been specifically rejected by that court.  In its earlier cases, furthermore, the 3rd Circuit panels had relied on the failure of Congress to pass the Employment Non-Discrimination Act as evidence that Congress did not intend to protect gay people from discrimination.  “However,” she wrote, “subsequent Third Circuit decisions have questioned the value of reliance on Congress inaction.”  Furthermore, she pointed out, many of the cases relied upon in those earlier 3rd Circuit decisions had in turned relied upon circuit court cases that pre-dated Price Waterhouse, and so necessarily had not ruled on the sex stereotype theory.

“The Supreme Court’s recent opinion legalizing gay marriage demonstrates a growing recognition of the illegality of discrimination on the basis of sexual orientation,” wrote the judge. “That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate.” Thus, the court denied the employer’s motion to dismiss the Title VII complaint.

If the employer appeals this case to the 3rd Circuit, it will be reaching an appellate bench with seven Democratic appointees (by Presidents Clinton and Obama) and five Republican appointees (by Presidents Bush I and II).  There are two vacancies.  There are nine active senior judges of the circuit, mostly appointed by Republican presidents, who might sit on particular three-judge panels but would not participate in “en banc” reviews by the full circuit bench.   By random draw, any particular three-judge panel might by more or less receptive to Judge Bissoon’s reasoning, although one can’t conclusively presume that every Democratic appointee will agree and every Republican appointee will disagree.  But the point to bear in mind is that Obama, through his appointments, switched the 3rd Circuit from a more conservative to a more progressive bench, and Trump can rebalance the circuit by filling the two vacancies and the next one that comes along if a Clinton or Obama appointee takes senior status.

Similarly, at the EEOC, significant progress in protecting LGBT rights came through administrative rulings and litigation decisions undertaken by President Obama’s appointees. The agency has become a vocal proponent of a broad interpretation of Title VII to protect LGBT people from employment discrimination, and its reasoning has been followed by other agencies, such as the Department of Labor and the Department of Education.   It seems unlikely that Trump’s appointees, once attaining full control of the federal agencies and departments, would keep to the same course.  Indeed, it is not a sure thing that Trump will allow Obama’s executive orders banning sexual orientation and gender identity discrimination within the Executive Branch, to stay in place.  The Order requiring federal contractors to have non-discrimination policies is likely on the repeal list.

Luckily, individuals can continue to file discrimination lawsuits under Title VII, so the loss of the agency as a plaintiff in their cases will not shut them out of court. But preserving the gains made so far may be difficult against the tide of new judicial and agency appointments that will be made beginning January 21.  Stalling on confirmations by the Senate has left close to 100 federal judgeships vacant, and there are hundreds of agency appointments to be made as well, which will cumulatively change the direction in which federal anti-discrimination law has been developing during the Obama years.  The appointment of new Supreme Court justices will matter as well, of course, because ultimately the question whether Title VII and other federal sex discrimination laws protect LGBT people will end up before that Court, where a transgender “bathroom” case under Title IX has already been accepted for review.   If these cases are decided after Trump has had two Supreme Court appointments, it is reasonable to speculate that the newly solidified conservative majority will not be inclined to adopt such a broad interpretation of Title VII or other federal sex discrimination laws.  Elections matter.

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Supreme Court Stays Injunction against Gloucester School District in Transgender Restroom Case

Posted on: August 15th, 2016 by Art Leonard No Comments

On August 3 the U.S. Supreme Court granted an application by the Gloucester (Virginia) County School Board to stay a preliminary injunction that had been issued by U.S. District Judge Robert Doumar (E.D. Va.) on June 23; see 2016 WL 3581852. Gloucester County School Board v. G.G., 136 S.Ct. 2442 (No. 16A52), granting stay. The injunction ordered the school board to allow Gavin Grimm, a transgender boy, to use the boys’ restroom facilities at his high school while the trial court determined whether the school’s policy denying such access violates Title IX of the Education Amendments Act of 1972.  What was unusual about the Supreme Court’s action was the brief concurring statement from Justice Stephen Breyer explaining that he had voted to grant the application as a “courtesy.”  The Court indicated that Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan “would deny the application.”  With the vacancy created by the death of Justice Scalia last winter, the four conservative members of the Court – Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas – could not issue the stay, which requires a majority of the Court.

The court specified that the injunction was stayed “pending the timely filing and disposition of a petition for a writ of certiorari.” If the Court denies the writ (that is, refuses to review the lower court’s ruling on the merits), the injunction will go into effect.  If the Court votes to grant review, the stay would end when the Supreme Court issues its ruling on the merits of the appeal.

The lawsuit involves the hotly disputed question whether Title IX’s ban on discrimination “because of sex” by educational institutions prohibits a school from denying transgender students access to restroom and locker-room facilities consistent with their gender identity. It is undisputed that when Congress enacted Title IX several decades ago, there was no consideration or discussion about whether it would require such a result, and it was made clear in the legislative history and subsequent regulations and guidelines that Title IX did not prohibit educational institutes from designating access to such facilities as male-only or female-only. (Indeed, many states have statutory requirements that educational institutions provide separate restroom and locker-room facilities for males and females.)  Furthermore, a series of cases under the various sex discrimination laws over several decades had rejected claims that they extended to gender identity discrimination. As to Title IX, it was not until relatively recently, when teens began to identify as transgender and to begin transitioning while still in school, that the issue has heated up, and it was not until 2015 that the U.S. Department of Education, charged with interpreting and enforcing Title IX, took the position that the ban on discrimination “because of sex” included discrimination because of gender identity.

The Education Department’s interpretation, expressed first in a letter released in connection with litigation over restroom access in a suburban Illinois school district, was not entirely unprecedented, since several lower federal courts have ruled under a variety of sex discrimination laws that discrimination because of gender identity is form of sex discrimination. These include the San Francisco-based 9th Circuit, in a case under the Violence against Women Act (VAWA), the Boston-based 1st Circuit, in a case under the Fair Credit Act, the Atlanta-based 11th Circuit, in a case interpreting the Equal Protection Clause of the 14th Amendment, and the Cincinnati-based 6th Circuit, in a case under Title VII of the Civil Rights Act of 1964 concerning employment discrimination.  However, challengers to the Education Department’s interpretation have argued that it is, in effect, a “changing of the rules” that can only be effected through a formal regulatory process under the Administrative Procedure Act, and not through a position letter in a pending case or an informal “guidance” memorandum.

In this Gloucester County case, Gavin Grimm had been using the boys’ facilities without incident after his gender transition until some complaints by parents to the school board resulted in a vote to adopt a policy requiring Grimm and any other transgender students to use either the facilities consistent with the gender indicated on their birth certificates (sometimes called “biological sex”) or to use single-user facilities designated for use by either sex, such as the restroom in the school nurse’s office. Since medical authorities will not perform “sex-reassignment surgery” on minors, it is impossible for a transgender youth to qualify for a change of gender designation on their birth certificate in most states, and some states rule out such changes altogether.  Grimm, who presents as male, sued under Title IX, claiming that the school district’s new access rule violated his rights under Title IX and the Equal Protection Clause.  Judge Doumar initially rejected his Title IX claim and reserved judgement on the Equal Protection claim, disagreeing with the Education Department’s interpretation of the statute.  132 F.Supp.3d 736 (E.D.Va., Sep. 17, 2015). This ruling was reversed on April 19 by the Richmond-based 4th Circuit Court of Appeals, 822 F.3d 709, which ruled that Doumar should have deferred to the Education Department’s interpretation of its own regulations and the statute.  The 4th Circuit subsequently voted to deny en banc review of this ruling, 824 F.3d 450 (May 31, 2016).  The 4th Circuit sent the case back to Judge Doumar, who then issued the preliminary injunction, and refused to stay it.  The 4th Circuit also refused to stay it, on July 12, 2016 WL 3743189.  The school district’s application to the Supreme Court indicated that it would be filing a petition for review of the 4th Circuit’s April 23 ruling, but in the meantime it wanted to preserve the “status quo” until there was a final ruling on the merits of the case.  Most pressingly, it wanted to ensure that its existing access rule would be in place when classes resumed at the high school.

At the heart of the disputes about Title IX restroom access cases is a fundamental disconnect between those who reject, based on their religious views or other beliefs, the idea that a transgender man is actually male or a transgender woman is actually female. (This is expressed in the controversial Mississippi HB 1523, which seeks to privilege those whose religious beliefs reject the concept of gender identity being discordant with anatomical sex at birth, by allowing individuals and businesses holding such beliefs to refuse to recognize transgender identity.)  Based on their political rhetoric and the arguments they make in court, it is clear that these critics believe that gender is fixed at birth and always coincides with anatomical sex, rejecting the whole idea of gender transition.  Thus, their slogan: No men in women’s restrooms, and no women in men’s restrooms.  Some premise this opposition on fears about safety, while others emphasize privacy, arguing that people have a “fundamental” constitutional privacy right not to confront transgender people in single-sex facilities.)  On the other side of the issue are those who accept the experience of transgender people and the findings of scientific researchers who have detected evidence that there is a genetic and/or biological basis for individuals’ strong feeling that they are misclassified.

This is, of course, not the only pending case placing in issue the Education Department’s interpretation of Title IX (which has also been endorsed by the Justice Department as it has represented the Education Department in court), or the broader question of whether federal sex discrimination laws are limited to instances of discrimination against somebody because of their “biological sex.” A three-judge panel of the 7th Circuit Court of Appeals recently ruled that circuit precedent required dismissal of a sexual orientation employment discrimination claim under Title VII, and the plaintiffs in that case will be seeking rehearing by the full 7th Circuit “en banc.”  There are also two appeals pending in the New York-based 2nd Circuit appealing dismissals of sexual orientation discrimination claims under Title VII, as well as an appeal in the Atlanta-based 11th Circuit by an employer seeking reversal of a district court’s refusal to dismiss such a claim.

There are also multiple lawsuits pending in North Carolina and Mississippi, and cases involving multiple states as plaintiffs in Texas and Nebraska, challenging the federal government’s interpretations of “sex discrimination” in either or both of the sexual orientation and gender identity contexts. Early in August federal district judges held hearings in several of these cases where litigants were seeking preliminary injunctions, either to bar enforcement of state laws or to block enforcement of Title IX by the Education Department.  The district court in Mississippi has refused to stay its injunction against the Mississippi law, and has been backed up by the New Orleans-based 5th Circuit Court of Appeals.  Mississippi will seek a Supreme Court stay, and in light of the Gloucester County stay, seems likely to receive one.

Justice Breyer cited in support of his “courtesy” vote a 2008 case, Medellin v. Texas, where the four liberal members of the Court had voted to grant a stay of execution of a Mexican national while important issues concerning the consular treaty rights of foreign nationals being tried on criminal charges in U.S. courts were unsettled and no member of the conservative branch of the Court was willing to provide a fifth vote as a “courtesy” to put off the execution until the underlying legal issues could be resolved.  In this case, the four conservative members of the Court clearly believed that the school district should not have to comply with the injunction until the underlying legal issues were settled, and Breyer was willing to extend to them the courtesy that none of them would extend in the 2008 case!

7th Circuit Panel Rejects Lesbian Professor’s Title VII Claim

Posted on: July 29th, 2016 by Art Leonard No Comments

A three-judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit ruled on July 28 that a lesbian professor could not sue the local community college in South Bend, Indiana, for sexual orientation discrimination under Title VII of the federal Civil Rights Act of 1964, rejecting her argument that anti-gay discrimination is a form of sex discrimination in violation of that law.  Hively v. Ivy Tech Community College, 2016 U.S. App. LEXIS 13746, 2016 Westlaw 4039703.

 

Weighing in on a question that has taken on renewed vitality since last July, when the Equal Employment Opportunity Commission (EEOC), a federal agency that enforces Title VII, ruled that David Baldwin, a gay air traffic controller, could bring an employment discrimination claim against the U.S. Transportation Department, the court, while describing the existing precedents in the 7th Circuit as “illogical,” nonetheless concluded that it was bound by those precedents.

 

Kimberly Hively began teaching part-time at Ivy Tech Community College in 2000. She applied six times for full-time positions for which she claimed to be qualified, but she was always turned down and her part-time contract was not renewed in July 2014.  By then, she had already filed a complaint with the EEOC on December 13, 2013, representing herself.  This was about 18 months before that agency changed its long-standing position and began to approve gay Title VII claims in the air traffic controller case.   The EEOC’s position, however, is not binding on federal courts.

 

Hively did not file a complaint with the South Bend human rights agency. Although that city’s anti-discrimination law was amended in 2012 to include sexual orientation, the city does not have jurisdiction to legislate about personnel practices at state-operated educational institutions, and they are explicitly exempted from coverage by the local law.  There is no Indiana state law forbidding sexual orientation discrimination.

 

After the EEOC concluded that it did not have jurisdiction, it sent Hively a “right to sue” letter. She filed her claim in federal court on August 15, 2014.  The college filed a motion to dismiss, arguing that sexual orientation discrimination claims are not covered under Title VII.  Hively, citing the advances of gay rights in the courts, urged that the college should not be allowed to discriminate based on sexual orientation.  On March 3, 2015, U.S. District Judge Rudy Lozano granted the college’s motion.   Citing a 7th Circuit decision from 2000 and a 2010 decision by the federal district court in Indiana, Judge Lozano wrote, “While this Court is sympathetic to the arguments made by Hively in her response brief, this Court is bound by Seventh Circuit precedent.  Because sexual orientation is not recognized as a protected class [sic] under Title VII, that claim must be dismissed.”

 

Hively also alleged a violation of 42 U.S.C. Section 1981, which Judge Lozano had to dismiss as well, because the Supreme Court interprets that 19th-century statute to apply only to race discrimination claims.  HiverlyivelyHi also asked to amend her complaint to push a claim for breach of contract, seeking enforcement of the college’s published non-discrimination policy, but that claim would arise under Indiana state contract law, and federal courts usually refuse to address state law claims when they have determined that the plaintiff has no federal law claim.

 

The fate Hively suffered in the district court shows the perils of individuals trying to navigate the complexities of federal employment law without legal representation. A well-versed lawyer might have found a way to construct a 14th Amendment Equal Protection claim on her behalf, which could be directed against individual school officials if she could allege sufficient facts to suggest that they refused to consider her applications because she is a lesbian, although there would be no guarantee of success because the Supreme Court has yet to rule on whether sexual orientation discrimination claims against public officials are entitled to heightened or strict scrutiny.

 

Attorney Gregory Nevins from Lambda Legal’s Atlanta office represented her on appeal to the 7th Circuit, where oral argument took place on September 30 and a long wait began for the court’s opinion.  The wait seemed surprising, because the three-judge panel would most likely easily conclude, as had Judge Lozano, that circuit precedent would dictate affirmance.  But the court took nine months to release its decision.  (By contrast, the 7th Circuit issued its marriage equality decision in 2014 less than two weeks after oral argument.)

 

Judge Ilana Rovner’s opinion obviously took so long because the majority of the panel was not content just to issue a pro forma dismissal in reliance on circuit precedent. The first, shorter, part of Rovner’s opinion, performing that function, was joined by Senior Judges William Bauer and Kenneth Ripple.  But the second, much longer, part, joined by Judge Ripple, provides a lengthy and detailed discussion of how the  EEOC’s Baldwin decision has led to an intense debate in the district courts around the country about how those old precedents are clearly out-of-step with where the country has moved on LGBT rights.

 

Judge Rovner (or, more likely, Lambda Legal in its appellate brief) collected district court decisions from all over the country – particularly from circuits where there were no adverse appeals court rulings – in which judges have decided to follow the EEOC’s reasoning and find that discrimination because of sexual orientation is “necessarily” sex discrimination.

 

The logical pathway to that conclusion runs through the Supreme Court’s 1989 ruling, Price Waterhouse v. Hopkins, which accepted the argument that discrimination against an employee because that employee fails to meet their employer’s sex-stereotypical views about how employees present themselves, is evidence of sex discrimination. That case involved a woman who was denied a partnership because she was perceived as inadequately feminine in her dress and conduct by partners who voted on the partnership decision.

 

Since 1989 some district courts have extended protection under Title VII to LGBT plaintiffs who could plausibly allege that they encountered discrimination because of sex stereotypes, but other courts have refused to take such cases, criticizing them as attempting to “bootstrap” coverage for sexual orientation into Title VII against the intent of Congress. What has emerged is a hodgepodge of decisions, resulting in the odd situation that, at least in some circuits, a gay plaintiff who is also obviously gender-nonconforming in terms of dress and speech may be protected under Title VII using the stereotyping theory, but a “straight-acting” gay plaintiff would have no protection.  Judge Rovner pointed out the irrationality of this, but, unfortunately, the 7th Circuit precedents seemed inescapable to this panel.

 

After discussing how various courts have pointed out the difficulties of distinguishing between a sex-stereotyping case and a sexual orientation case, she observed that the difficult is not necessarily impossible. “There may indeed be some aspects of a worker’s sexual orientation that create a target for discrimination apart from any issues related to gender,” she wrote.  “Harassment may be based on prejudicial or stereotypical ideas about particular aspects of the gay and lesbian ‘lifestyle,’ including ideas about promiscuity, religious beliefs, spending habits, child-rearing, sexual practices, or politics.  Although it seems likely that most of the causes of discrimination based on sexual orientation ultimately stem from employers’ and co-workers’ discomfort with a lesbian woman’s or a gay man’s failure to abide by gender norms, we cannot say that it must be so in all cases.  Therefore we cannot conclude that the two must necessarily be coextensive unless or until either the legislature or the Supreme Court says it is so.”

 

In this case, she pointed out, Kimberly Hively had not made any specific allegations of gender non-conformity, other than the implicit contention that being a lesbian, as such, was gender non-conforming in that she was attracted to women rather than men. Although a few district courts, especially after the Baldwin ruling, have found that to be enough to squeeze into coverage under the sex stereotype theory, the 7th Circuit hasn’t gotten there yet, and this panel did not feel empowered to extend circuit precedent to accept that argument.

 

While noting the significant advances in LGBT rights at the Supreme Court from Romer v. Evans (1996) through Obergefell v. Hodges (2015), Judge Rovner pointed out that in none of those cases has the Supreme Court said anything that would deal directly with the question whether anti-gay discrimination must be treated as a form of sex discrimination under Title VII. But she did observe the stark legal anomaly created by last year’s marriage equality decision.

 

“The cases as they do stand, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act,” she wrote. “For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.  From an employee’s perspective, that right to marriage might not feel like a real right if she can be fired for exercising it.  Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, ‘You are a hard-working employee and have added much value to my company, but I am firing you because you are gay.’  And the employee would have no recourse whatsoever – unless she happens to live in a state or locality with an anti-discrimination statute that includes sexual orientation.  More than half of the United States, however, do not have such protections.”

 

She pointed out the additional oddity that even a “straight” employee who was discharged because her employer mistakenly thought she was a lesbian would have no protection, unless she could show her overt violation of gender stereotypes aws the reason for the discrimination. Straight people are not protected from “mistaken” sexual orientation discrimination!

 

Judge Rovner observed that this state of the law “leads to unsatisfying results.” It also is inconsistent with Title VII race discrimination cases that impose liability when an employer fires a white employee because he or she is dating or marrying a person of a different race.  It is now well-established that it is race discrimination to single out somebody because of their interracial social life.  Why not, as a logical matter, prohibit discriminating against somebody because of their same-sex social life?  The logic seems irrefutable.  “It is true that Hively has not made the express claim that she was discriminated against based on her relationship with a woman,” wrote Judge Rovner, “but that is, after all, the very essence of sexual orientation discrimination.  It is discrimination based on the nature of an associational relationship – in this case, one based on gender.”

 

Rover found it “curious” that “the Supreme Court has opted not to weigh in on the question of whether Title VII’s prohibition on sex-based discrimination would extend to protect against sexual orientation discrimination” and that even in “the watershed case of Obergefell” the court “made no mention of the stigma and injury that comes from excluding lesbian, gay, and bisexual persons from the workforce or subjecting them to un-remediable harassment and discrimination.” But, frustratingly, the Supreme Court has yet to tackle head-on the direct issue of anti-gay discrimination in a way that would provide guidance to lower federal courts and state courts, and has so far consistently denied review in cases presenting this question.  “In addition to the Supreme Court’s silence,” she observed, “Congress has time and time against said ‘no’ to every attempt to add sexual orientation to the list of categories protected from discrimination by Title VII.”

 

Ultimately the judge was very critical of the 7th Circuit’s precedent.  “It may be that the rationale appellate courts, including this one, have used to distinguish between gender non-conformity discrimination claims and sexual orientation discrimination claims will not hold up under future rigorous analysis,” she wrote.  “It seems illogical to entertain gender non-conformity claims under Title VII where the non-conformity involves style of dress or manner of speaking, but not when the gender non-conformity involves the sine qua non of gender stereotypes – with whom a person engages in sexual relationships.  And we can see no rational reason to entertain sex discrimination claims for those who defy gender norms by looking or acting stereotypically gay or lesbian (even if they are not), but not for those who are openly gay but otherwise comply with gender norms.  We allow two women or two men to marry, but allow employers to terminate them for doing so.  Perchance, in time, these inconsistencies will come to be seen as denying practical workability and will lead us to reconsider our precedent.”  She then quoted Justice Kennedy’s Obergefell decision, pointing out how “new insights and societal understandings” could lead to changes in the law.

 

Rovner concluded that it was “unlikely” that society would tolerate this anomalous situation for long. “Perhaps the writing is on the wall,” she wrote.  “But writing on the wall is not enough.  Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is affirmed.”

 

This conclusion is not totally accurate.  The full 7th Circuit, considering this issue en banc, could decide to overrule the prior precedent within the circuit without waiting for passage of the Equality Act (which would amend Title VII to add sexual orientation and gender identity) or for a Supreme Court ruling.  Judge Rovner’s extended critique implies receptivity to rethinking the precedent, so perhaps a motion for rehearing en banc could find favor with a majority of the judges of the circuit.

 

A little “circuit math” suggests the possibility: There are nine active judges on the 7th Circuit, with two vacancies for which President Obama has made nominations that are stalled in the Senate.  Only one of the active judges was appointed by President Obama, David Hamilton, and two were appointed by President Clinton, Chief Judge Diane Wood and Ann Williams.  All the other judges are appointees of Presidents George H.W. Bush and Ronald Reagan.  (There is no appointee of George W. Bush sitting on the 7th Circuit.)

 

The three-judge panel in this case consisted entirely of Republican appointees: Judge Rovner by the first President Bush, Senior Judges Bauer and Ripple by Presidents Ford and Reagan. Interestingly, Ripple and Rovner, both Republican appointees with long service on the court, agree that the precedent is “illogical” and not “rational.”  Unfortunately, Judge Ripple, as a Senior Judge, would not participate in an en banc rehearing.  But perhaps despite the strong 6-3 overall Republican tilt of this circuit, a full nine-member bench might find a majority for granting en banc rehearing and changing the circuit precedent.  That would require at least one more Republican appointee to join Rovner and the three Democratic appointees to make a 5-4 majority.

 

One of the other Republican appointees, Richard Posner, could be the prime candidate for that. He wrote the 7th Circuit’s magnificent marriage equality decision, which reflected his strong receptivity to reconsidering his views on LGBT issues, a point he has subsequently reiterated in a law review article musing about his changing understanding of LGBT issues since he was appointed to the court by Ronald Reagan in the 1980s.

 

On the other hand, it is possible that this opinion took so long to get out because some attempt was made within the judges’ chambers to provoke a spontaneous en banc reconsideration , but it was unsuccessful.  Who knows?  Mysterious are the inner workings of our courts.

Federal Trial Courts Divided Over Title VII Sexual Orientation Discrimination Claims

Posted on: June 21st, 2016 by Art Leonard No Comments

Last July the Equal Employment Opportunity Commission (EEOC), reversing its position dating back fifty years, issued a ruling that a gay man could charge a federal agency employer with sex discrimination in violation of Title VII of the Civil Rights Act of 1964 for denying a promotion because of his sexual orientation. The Baldwin v. Foxx decision is an administrative ruling, not binding on federal courts, and federal trial judges are sharply divided on the issue.

During May and June, federal district judges in Virginia, New York, Illinois, Mississippi and Florida issued rulings in response to employers’ motions to dismiss Title VII claims of sexual orientation discrimination.  In each case, the employer argued that the plaintiff’s Title VII claim had to be dismissed as a matter of law because the federal employment discrimination statute does not forbid sexual orientation discrimination.

Title VII was enacted as part of the Civil Rights Act of 1964. Although the House committee considering the bill took evidence about sex discrimination, it decided to send the bill to the House floor without including “sex” as a prohibited basis for discrimination, because this was deemed  too controversial and might sink the bill. During the floor debate, however, a southern representative, Howard Smith of Virginia, a conservative Democrat who was opposed to the proposed ban on race discrimination, proposed an amendment to add “sex” to the list of prohibited grounds.  Most historical accounts suggest that Smith’s strategy was to make the bill more controversial, thus ensuring its defeat.  More recent accounts have suggested that Smith, although a racist, was actually a supporter of equal rights for women and genuinely believed that sex discrimination in the workplace should be banned.  (His amendment did not add “sex” to the other titles of the bill addressing other kinds of discrimination.)  The amendment passed, and ultimately the bill was enacted, going into effect in July 1965.

Because “sex” was added through a House floor amendment, the Committee Report on the bill says nothing about it, and the subsequent debate in the Senate (where the bill went directly to the floor, bypassing committee consideration) devoted little attention to it, apart from an amendment providing that pay practices “authorized” by the Equal Pay Act of 1963 would not be outlawed by Title VII. As a result, the “legislative history” of Title VII provides no explanation about what Congress intended by including “sex” as a prohibited ground of discrimination.

During the first quarter century of Title VII, the EEOC and the federal courts consistently rejected claims that the law outlawed sexual orientation discrimination. In the absence of explanatory legislative history, they ruled that Congress must have intended simply  to prohibit discrimination against women because they are women or against men because they are men, and nothing more complicated or nuanced than that.  This interpretation was challenged in 1989, when the Supreme Court ruled in Price Waterhouse v. Hopkins that a woman who failed to conform to her employer’s sex stereotypes could bring a sex discrimination case under Title VII, adopting a broader and more sophisticated view of sex discrimination.

Since 1989, some lower federal courts have used the Price Waterhouse ruling to allow gay or transgender plaintiffs to assert sex discrimination claims in reliance on the sex stereotype theory, while others have rejected attempt to “bootstrap” sexual orientation or gender identity into Title VII in this way.   More recently, several federal appeals courts have endorsed the idea that gender identity discrimination claims are really sex discrimination claims, and a consensus to that effect has begun to emerge, but progress has been slower on the sexual orientation front.

Last summer the EEOC’s decision in Baldwin v. Foxx presented a startling turnabout of the agency’s view. The EEOC does not adjudicate discrimination claims against non-governmental and state employers, but it is assigned an appellate role concerning discrimination claims by federal employees.  In Baldwin v. Foxx, the EEOC reversed a ruling by the Transportation Department that a gay air traffic controller could not bring a sexual orientation discrimination claim under Title VII.  Looking at the developing federal case law since Price Waterhouse and seizing upon a handful of federal district court decisions that had allowed gay plaintiffs to bring sex discrimination claims under a sex stereotype theory, the agency concluded that a sexual orientation discrimination claim is “necessarily” a sex discrimination claim and should be allowed under Title VII.

Since that July 15 ruling, many federal district judges have had to rule on motions by employers to dismiss Title VII sexual orientation discrimination claims. The precedential hierarchy of the federal court system has required some of them to dismiss those claims because the circuit court of appeals to which their rulings could be appealed had previously ruled adversely on the issue.  In other circuits, however, the question is open and some judges have taken the EEOC’s lead.

On May 5, U.S. District Judge Robert E. Payne in Virginia found that he was bound by 4th Circuit precedent to reject a sexual orientation discrimination claim under Title VII, even though the plaintiff, an openly-gay administrative assistant at Virginia Union University, had alleged clear evidence of anti-gay discrimination by the university president.  Judge Payne found that a 1996 decision by the 4th Circuit, Wrightson v. Pizza Hut of America, was still binding.  Payne noted that other federal trial courts were divided about whether to defer to the EEOC’s Baldwin ruling, but in any event he felt bound by circuit precedent to dismiss the claim.

A district judge on Long Island, Sandra J. Feuerstein, reached a similar result in Magnusson v. County of Suffolk on May 17, dismissing a Title VII claim by an openly-lesbian custodial worker at the Suffolk County Department of Public Works, who alleged that her failure to comply with her supervisors’ stereotypes of how women should dress had led to discrimination against her. Relying on prior decisions by the New York City-based 2nd Circuit Court of Appeals, Judge Feuerstein refrained from discussing more recent developments and dismissed the claim, asserting that the plaintiff’s “claims regarding incidents of harassment based on her sexual orientation do not give rise to Title VII liability.”

However, on May 31, a senior district judge in Illinois decided that prudence in light of the developing situation counseled against dismissing a pending “perceived sexual orientation” claim in the case of Matavka v. Board of Education. Judge Milton I. Shadur confronted the school district’s motion to dismiss a discrimination claim by  an employee at J. Sterling Morton High School, who alleged that “he experienced severe harassment from his coworkers and supervisors, including taunts that he was ‘gay’ and should ‘suck it,’ frequent jokes about his perceived homosexuality, and hacking of his Facebook account to identify him publicly as ‘interested in boys and men’, and an email stating ‘U. . . are homosexual.’”  Judge Shadur observed that the Chicago-based 7th Circuit Court of Appeals had in the past rejected sexual orientation discrimination claims under Title VII, which “would appear to bury” Matavka’s Title VII claim.  But, he noted, Baldwin v. Foxx, while not binding on the court, may prompt a rethinking of this issue, and that the 7th Circuit heard oral argument on September 30 of a plaintiff’s appeal from a different federal trial judge’s dismissal of a sexual orientation discrimination claim in the case of Hively v. Ivy Tech Community College.  “Should Hively follow recent district court decisions in finding Baldwin persuasive,” he wrote, “that finding plainly would affect the disposition of Morton High’s motion.  That being so, the prudent course at present is to stay this matter pending the issuance of a decision in Hively.”

The 7th Circuit has not issued a decision in Hively as of this writing.  Judge Shadur stayed a ruling on the motion until July 29, and said that if the 7th Circuit had not issued a ruling by then, he might stay it further.

The federal appeals courts are not bound by any rules about how soon after oral argument they must issue opinions. Sometimes the 7th Circuit moves quickly.  During 2014 it took just a week after the August 26 oral argument to rule affirmatively on a marriage equality case on September 4, giving the states of Wisconsin and Indiana time to petition the Supreme Court for review before the start of the Court’s October term.  The panel that heard the Hively argument has not ruled in more than eight months, suggesting that an extended internal discussion may be happening among the nine active judges of the 7th Circuit, to whom the panel’s proposed opinion would be circulated before it is released.  Panels may not depart from circuit precedent, but a majority of the active judges on the circuit can overrule their past decisions.  A 7th Circuit ruling reversing the district court’s dismissal of the Hively complaint would be a major breakthrough for Title VII coverage of sexual orientation claims.

Meanwhile, two decisions issued in June have taken opposite views on the question. In Brown v. Subway Sandwich Shop of Laurel, U.S. District Judge Keith Starrett of the Southern District of Mississippi bowed to prior 5th Circuit rulings rejecting sexual orientation claims under Title VII, and he even claimed, somewhat disingenuously, that the EEOC’s Baldwin decision did not support the plaintiff’s claim, stating that Baldwin “takes no position on the merits of the claim and resolves only timeliness and jurisdictional issues.”  While this may appear to be technically true, since the EEOC was ruling on an appeal from the Transportation Department’s dismissal of the claim and not ultimately on the merits, on the other hand the EEOC definitely did take a “position” on the question whether sexual orientation discrimination claims are covered by Title VII; it had to address this question in order to determine that it had jurisdiction over the claim.  The EEOC clearly stated in Baldwin that sexual orientation discrimination claims are “necessarily” sex discrimination claims.

By contrast, U.S. District Judge Mark E. Walker of the Northern District of Florida, finding that the 11th Circuit Court of Appeals has not issued a precedential ruling on the question, refused to dismiss a “perceived sexual orientation” discrimination claim in Winstead v. Lafayette County Board of County Commissioners on June 20.  Pointing out that the 11th Circuit had ruled in 2011 in Glenn v. Brumby that a gender identity discrimination claim could be considered a sex discrimination claim under the Equal Protection Clause using a sex stereotyping theory, Judge Walker found that the Baldwin ruling, which also discussed sex stereotyping as a basis for a sexual orientation claim, was persuasive and should be followed.

Judge Walker rejected the argument made by some courts that using the stereotyping theory for this purpose was inappropriately “bootstrapping” claims of sexual orientation discrimination under Title VII. “These arguments seem to this Court to misapprehend the nature of animus towards people based on their sexual orientation, actual or perceived,” he wrote.  “Such animus, whatever its origin, is at its core based on disapproval of certain behaviors (real or assumed) and tendencies towards behaviors, and those behaviors are disapproved of precisely because they are deemed to be ‘inappropriate’ for members of a certain sex or gender.”

He concluded: “This view – that discrimination on the basis of sexual orientation is necessarily discrimination based on gender or sex stereotypes, and is therefore sex discrimination – is persuasive to this Court, as it has been to numerous other courts and the EEOC.” He also contended that it “follows naturally from (though it is not compelled by) Brumby, which is binding Eleventh Circuit precedent.  Simply put, to treat someone differently based on her attraction to women is necessary to treat that person differently because of her failure to conform to gender or sex stereotypes, which is, in turn, necessarily discrimination on the basis of sex.”

Ironically, Judge Walker turned to an opinion written by the late Justice Antonin Scalia, an outspoken opponent of LGBT rights, to seal the deal. He quoted from Scalia’s opinion for the Supreme Court in Oncale v. Sundowner Offshore Services, a 1998 decision that same-sex harassment cases could be brought under Title VII.  “No one doubts,” wrote Judge Walker, “that discrimination against people based on their sexual orientation was not ‘the principal evil Congress was concerned with when it enacted Title VII,’” quoting Scalia, and continuing the quote,  “’But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.’”  Scalia was opposed to relying on “legislative history” to determine the meaning of statutes, instead insisting on focusing on the statutory language and giving words their “usual” meanings.

Judge Walker concluded that his decision not to dismiss the Title VII claim “does not require judicial activism or tortured statutory construction. It requires close attention to the text of Title VII, common sense, and an understanding that ‘in forbidding employers to discrimination against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes,’” a quote from a 1971 court of appeals ruling that had been cited by the Supreme Court.

Judge Walker’s decision provides the most extended district court discussion of the merits of allowing sexual orientation discrimination claims under Title VII, but it will not be the last word, as the EEOC pushes forward with its affirmative agenda to litigate this issue in as many federal courts around the country as possible, building to a potential Supreme Court ruling. So far, the Supreme Court has refused to get involved with the ongoing debate about whether sexual orientation or gender identity discrimination claims are covered under Title VII.  It refused to review the 11th Circuit’s decision in Glenn v. Brumby.  But it can’t put things off much longer.  An affirmative 7th Circuit ruling in Hively would create the kind of “circuit split” that usually prompts the Supreme Court to agree to review a case.  That may not be long in coming.

A Flood of New Litigation on LGBT Rights

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

May has brought a flood of litigation over LGBT rights in the federal courts. During the first few days of the month, half a dozen federal lawsuits were filed addressing either the transgender bathroom issue or continuing state-level resistance to marriage equality.

First out of the box was a lawsuit filed in federal court in Chicago on May 4 by two right-wing litigation groups – The Thomas More Society and the Alliance Defending Freedom – challenging the U.S. Department of Education’s agreement with Township School District 211 that settled a lawsuit about transgender restroom access.   Under the settlement agreement the school district will allow transgender students to use restrooms and other facilities consistent with their gender identity.  The case stirred considerable local controversy, and the litigation groups were able to recruit five students and their parents, banding together as “Students and Parents for Privacy,” to challenge the settlement.  They argue that the students have a fundamental constitutional right of “bodily privacy” that is violated when transgender students show up in the restroom, that the settlement violates the parents’ fundamental right to direct the education and upbringing of their children by exposing the children to such shocking things, and, perhaps most importantly, that the Education Department’s position that gender identity discrimination violates Title IX of the Education Amendments Act, a federal law that bans sex discrimination in schools that receive federal money, is a misinterpretation of that statute and was not validly adopted.

This last argument rests on a plausible reading of the Administrative Procedure Act, a federal statute that specifies procedures that federal agencies must follow when they adopt new regulations. While the Education Department has not adopted a regulation on the subject, the plaintiffs make a strong argument that its enforcement of its interpretation is tantamount to a regulation.  The plaintiffs argue that the Department is not free to take such a position without going through the formalities of the Administrative Procedure Act, because the Department is enforcing its view as if it was a regulation and because the position it is taking was consistently rejected for the first several decades of Title IX’s existence.  (The statute dates from the early 1970s.)  If the courts agree, the Department would have to go through a time-consuming process that could stretch out over many months in order to adopt a valid regulation, and then the regulation would be subject to challenge in the federal appeals courts, which could tie it up in litigation for years.

On the other hand, many of the plaintiffs’ arguments have already been rejected by the Richmond-based U.S. Court of Appeals for the 4th Circuit, when it ruled on April 19 that a federal court in Virginia should have deferred to the Education Department’s interpretation of Title IX in a case brought by a transgender boy seeking appropriate restroom access in his Virginia high school.  That ruling turned on the court’s agreement with the Education Department that existing statutory provisions and regulations (which allow schools to maintain separate restrooms for males and females) were ambiguous as to how to treat transgender people, justifying the Department in adopting a position consistent with its view of the purpose of the law to provide equal educational opportunity.  The 4th Circuit held that the district court should defer to the Department’s judgment, since it was not a clearly erroneous interpretation of the statute and the existing regulations.  In the Chicago lawsuit, the plaintiffs argue that the statute and regulations are not ambiguous, but this rests on their assertion that the Congress that passed Title IX so long ago could not have intended any meaning for the term “sex” other than “biological sex” as determined at birth.  The 4th Circuit, by contrast, found that the term “sex” without any explanatory statutory definition could have a variety of meanings depend upon the context in which it was used, and is thus inherently ambiguous.

Chicago is in the 7th Circuit, so the 4th Circuit’s ruling is not binding on the lawsuit filed there.  More than thirty years ago, the 7th Circuit ruled in a case under Title VII of the Civil Rights Act that discrimination because of gender identity did not violate the sex discrimination provision and the federal court in Chicago may find itself constrained, if not directly bound, by that precedent under a different but parallel statute, although thirty years of developments in the courts have arguably rendered it obsolete.  Federal courts have generally held that the term “sex” in Title VII and Title IX should be given the same meaning, and that cases construing one of those statutes can be consulted when construing the other.

Just five days later, on May 9, there was a flurry of new litigation in the U.S. District Courts of North Carolina, focused on the bathroom provisions of H.B. 2. H.B. 2 was introduced in the state legislature, approved by both houses and signed by Governor Pat McCrory in one day, March 23.  It wiped out local government bans on sexual orientation and gender identity discrimination, quashed the right of North Carolinians to sue for any kind of discrimination in state courts, and prohibited localities from adopting their own rules on government contracting and minimum wages.  Most controversially, however, it provided that in all public facilities with restrooms, changing rooms, locker rooms and the like, multi-occupancy facilities must be segregated by biological sex, defined as the sex recorded on a person’s birth certificate.  The state’s attorney general, Roy Cooper, denounced the measure as discriminatory and said his office would not defend it.

Lambda Legal and the ACLU filed a federal lawsuit in the Middle District of North Carolina on March 28, challenging portions of H.B. 2 under the 14th Amendment and Title IX, and subsequently one of the transgender plaintiffs in the case also filed charges of discrimination under Title VII with the Equal Employment Opportunity Commission (which had ruled last year that Title VII requires employers to allow transgender employees to use restrooms consistent with their gender identity).  Within a few weeks, the 4th Circuit’s April 19 ruling in the Virginia Title IX case placed the legality of the bathroom provisions in doubt.  The controversy surrounding H.B. 2, especially the bathroom provision and the preemption of local anti-discrimination ordinances, caused adverse reactions that echoed throughout the country as governors and mayors prohibited official travel to North Carolina, some major employers announced reconsideration of plans to locate facilities there, and conventions and major musical performers cancelled activities in the state.  But Governor McCrory and the Republican state legislative leaders rejected calls to rescind the statute.

The Justice Department weighed in early in May, when the Civil Rights Division sent a letter to Governor McCrory, who had been vigorously defending the law in national media, informing him that the Justice Department considered the bathroom provision to violate federal sex discrimination laws and demanding a response by May 9. Governor McCrory’s response was to file a lawsuit on May 9, seeking a declaration from the federal district court in the Eastern District of North Carolina that the bathroom provisions did not violate federal civil rights laws.  U.S. Attorney General Loretta Lynch then held a press conference at which she unveiled a new lawsuit by the federal government against North Carolina, filed in the Middle District of North Carolina, seeking a declaration that the bathroom provision violates federal law.  Lynch’s statement, which quickly went viral on the internet, promised transgender people that the federal government recognized them and was standing behind them, thus putting the full weight of the Justice Department on the line backing the Education Department and the EEOC in their interpretations of “sex discrimination” under their respective statutes.

Since North Carolina Attorney General Cooper was refusing to defend H.B. 2, Governor McCrory retained a private lawyer, Karl S. Bowers, Jr., of Columbia, South Carolina, who filed the complaint co-signed by the governor’s General Counsel, Robert C. Stephens, and local North Carolina attorneys from the Raleigh firm of Millberg Gordon Stewart PLLC.  Presumably they will also be conducting the defense in the Justice Department’s case.  Their argument, consistent with McCrory’s public statements, was that the state was not discriminating against transgender people, merely requiring them to use alternative facilities in order to protect the privacy rights of others.  The complaint echoed the governor’s “common sense privacy policy” argument, and insisted that federal courts have “consistently” found that Title VII “does not protect transgender or transsexuality per se.”  While the complaint lists half a dozen federal court rulings supporting that position, it conveniently fails to note numerous court decisions holding to the contrary, including decisions by the 6th Circuit Court of Appeals, based in Cincinnati, and district courts in many different states.

The Justice Department will probably move to transfer McCrory’s case to the Middle District of North Carolina, where it can be consolidated with the Justice Department’s lawsuit and perhaps the pending Lambda/ACLU lawsuit. There was another lawsuit defending H.B. 2 filed on May 9 in the Eastern District court by North Carolina Senate Leader Phil Berger (R-Rockingham) and House Speaker Tim Moore (R-Cleveland), but it is hard to conceive how they could have standing to bring a federal lawsuit on their own, so it is likely to be dismissed if the government makes a motion to that effect.

Meanwhile, there were also new litigation developments in Mississippi, challenging House Bill 1523, the so-called “Protecting Freedom of Conscience from Government Discrimination Act.” HB 1523 was passed in response to the Supreme Court’s Obergefell marriage equality decision of last June 26.  Subsequent to Obergefell, the New Orleans-based 5th Circuit Court of Appeals upheld a federal district court injunction against the state of Mississippi’s enforcement of its anti-gay marriage ban, and marriage equality came to the state.  State legislators quickly went to work undermining this by devising H.B. 1523, which essentially gives government officials, businesses, and religious believers permission to discriminate against same-sex couples, provided that the discriminators have a sincere religious belief that marriage should only involve one man and one woman.  The measure is scheduled to go into effect on July 1.

The ACLU lawsuit filed on May 9 in the federal court in Jackson, Mississippi, charges that H.B. 1523 violates the 14th Amendment “by subjecting the lawful marriages of same-sex couples to different terms and conditions than those accorded to different-sex couples.”  In effect, Mississippi has set up a “separate but equal” framework, which “imposes a disadvantage, a separate status, and so a stigma upon all married same-sex couples in Mississippi.”  The lawsuit names as defendant the Mississippi State Registrar of Vital Records, Judy Moulder.

Among its many discriminatory provisions, H.B. 1523 provides that government employees “who wish to recuse themselves from issuing marriage licenses to same-sex couples” will be required to Moulder, and she will be required to maintain a list of officials who have recused themselves from providing same-sex couples with the services that are routinely provided to different-sex couples, and they will be excused from providing these services to same-sex couples. These recusant officials are also charged by the statute with a requirement to make arrangements to insure that same-sex couples do receive the services to which they are entitled, but the statute does not establish any mechanism to ensure compliance with this provision.

The ACLU lawsuit seeks a declaration from the court that H.B. 1523 is unconstitutional “on its face” and an injunction against it going into effect.   It was immediately followed by more court action, as New York attorney Roberta Kaplan, who represents the plaintiffs in the Mississippi marriage equality case, filed a motion in federal district court on May 10, asking Judge Carlton Reeves to reopen the case so they can name Judy Moulder as an additional defendant and modify his injunction to require the state to come up with the necessary procedures to ensure that same-sex couples who seek to marry will not encounter any delays due to recusals on religious grounds by state officials.  Indeed, she argues, anyone recusing themselves from serving same-sex couples should be disqualified from serving different-sex couples as well, as failure to do so would violate the obligations of all state officials to provide non-discriminatory service. The motion also asks that the list of recusant officials be posted on the website of the Registrar of Vital Records so that couples won’t have to subject themselves to the indignity of being turned away when they seek marriage licenses.