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Virginia Federal District Court to Determine Whether Gavin Grimm Case is Moot

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

On August 2, the Richmond-based 4th Circuit Court of Appeals announced that instead of holding oral argument in Gavin Grimm’s lawsuit challenging the Gloucester County School Board’s bathroom access policy, it was sending the case back to the district court for a determination whether Grimm’s recent graduation from high school made the case moot.  Grimm v. Gloucester County School Board, 2017 U.S. App. LEXIS 14158.  The three-judge panel had tentatively scheduled an oral argument for September to consider yet again whether U.S. District Judge Robert G. Doumar erred when he dismissed Grimm’s Title IX sex discrimination claim against the Gloucester County School Board. The circuit panel speculated that its jurisdiction to decide the case may have been ended by Grimm’s graduation, but that it was not clear from the record before the court and the supplemental briefs filed by the parties earlier this summer whether this is so, and the court concluded that more fact-finding is necessary before the issue of its jurisdiction can be decided.

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

Ruling on Grimm’s appeal of the dismissal on April 19, 2016, the 4th Circuit focused on the document issued by the federal agencies, finding that the district court should have deferred to their interpretation of the Title IX regulations, finding it to be a reasonable interpretation of the regulations.  The court reversed Judge Doumar’s dismissal of the Title IX claim, and sent the case back to Doumar to reconsider Grimm’s request for a preliminary injunction.  Reacting to the Circuit’s decision, Doumar issued a preliminary injunction on June 23, 2016, too late to get Grimm access to the boys’ bathrooms during his junior year but potentially ensuring that he could use appropriate bathrooms at the high school during his senior year.  But that was not to be.  Even though Judge Doumar and the 4th Circuit refused to stay the preliminary injunction while the case was on appeal, the School Board successfully petitioned the Supreme Court for a stay while it prepared to file a petition to have the Supreme Court review the 4th Circuit’s ruling.  Thus, as the 2016-17 school year began, Grimm was still barred from using the boys’ bathrooms at his high school.

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

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

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

If the mootness issue is decided in Grimm’s favor and the case returns to the 4th Circuit for a ruling on whether the Title IX claim was appropriately dismissed, it may yet provide a vehicle for the ACLU LGBT Right Project and the ACLU Foundation of Virginia, which represent Grimm, to get this issue back before the Supreme Court, although if they are ultimately successful in the 4th Circuit, that would depend on the School Board persisting in seeking Supreme Court review.  However, this issue is being litigated in other places, in some cases involving elementary school students, and it is possible that one of the other cases will get far enough along to knock at the Supreme Court’s door long before the plaintiff has graduated.  Indeed, while this litigation drama was unfolding in Gloucester County, the Chicago-based 7th Circuit Court of Appeals ruled on May 30 in Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034, that Title IX prohibits a public school from refusing to let transgender students use bathrooms appropriate for their gender identity, so the issue has percolated further elsewhere in the country.  It seems only a matter of time before it gets to the Supreme Court, regardless of what the Trump Administration may say about the issue, unless Congress intervenes by amending Title IX, an outcome that is unlikely unless the Senate Republicans abolish the filibuster rule for ordinary legislation, as Trump has been asking them to do, so far without success.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

 

EEOC Rules on Transgender Employee Restroom Rights

Posted on: April 9th, 2015 by Art Leonard No Comments

The Equal Employment Opportunity Commission (EEOC), the agency charged with enforcement of federal bans on sex discrimination in employment, has ruled that a transgender woman employed in a civilian position by the U.S. Department of the Army, is entitled to use restroom facilities consistent with her gender identity, despite the agency’s objection to providing such access before the individual has undergone sex-reassignment surgery.  Although the EEOC had previously ruled that refusal to employ somebody because of their gender identity was a form of sex discrimination in violation of federal law, this was its first pronouncement on one of the great looming issues in transgender workplace rights: restroom access.

The case is Lusardi v. McHugh, the complainant being Tamara Lusardi and the named defendant being Secretary of the Army John M. McHugh.  The EEOC designates this as Appeal No. 0120133395.

Lusardi was hired as a male-identified person in 2004, as a civilian employee with the U.S. Army Aviation and Missile Research Development and Engineering Center in Huntsville, Alabama.  The case decided by the EEOC relates to events from October 2010 through August 2011 when she was assigned to the AMRDEC Software Engineering Directorate, and was also doing work at the Project Management office, Aircraft Survivability Equipment, as a Software Quality Assurance Lead.

As early as 2007 she had begun to discuss her gender identity issues with the Division Chief, and she began the actual transitioning process in 2010, obtaining a legal name change from an Alabama court in April of that year from a male-identified first-name to her desired name of Tamara.  She requested that the name be changed in Department records, which was effected on October 13, 2010.  Two weeks later, at the request of the supervisor on the Aircraft Survivability Equipment job, she met with that supervisor and the Division Chief to discuss the process of transitioning to presenting herself in conformance with her gender identity, and the issue of how she would relate to co-workers came up, particularly regarding restroom use once she began presenting as a woman.  An agreement of sorts was reached, and memorialized in writing, that she would use a single-user restroom, referred to as the “executive restroom,” until she had undergone sex reassignment surgery.

She generally adhered to that agreement, but there were a few occasions when that restroom was unavailable or out of order, so she used the restroom designated for women, which brought forth objections from the supervisor and it turned into an issue.  There was also a problem of harassment, derived from another supervisor’s  apparent difficulty in accommodating to Lusardi’s gender identity.  This supervisor persisted in referring to Lusari with masculine pronouns or calling her “sir,” using her former first name, and “smirking” and “giggling” in front of others while stating “What is this, [Complainant’s former male name] or Tamara”?

Lusardi initially spoke with an EEO counselor about these issues in September 2011, and filed a formal complaint of disparate treatment and hostile environment with the agency’s EEO office on March 14, 2012.  A final agency decision was issued on September 5, 2013, concluding that she had failed to show a violation of the applicable ban on sex discrimination.  She appealed this ruling to the EEOC a few weeks later.  She also filed a complaint with the Office of Special Counsel, which is charged with ruling on internal executive branch personnel matters.  That office found that the restroom access denial was improper, in a report that ordered training for Army Department staffers but awarded no remedy to Lusardi.

Reversing the Army Department’s decision, the EEOC found that the disparate treatment in restroom access was a direct violation of the ban on sex discrimination.  Following up on the logical implications of its prior decision, it held that a transgender woman who is presenting as a woman is entitled to be treated by her employer as a woman.  This includes access to women’s facilities, regardless whether the individual has had surgery.  “This case represents well the peril of conditioning access to facilities on any medical procedure,” wrote the Commission.  “Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals or anyone else).  An agency may not condition access to facilities — or to other terms, conditions, or privileges of employment — on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.”

The EEOC also rejected the agency’s findings on the harassment claim, concluding that the insults to Lusardi were intentional, and ordered the agency to take concrete steps to educate its employees and supervisors on their non-discrimination obligations. The EEOC also ordered the agency to undertake a fact-finding investigation to determine compensatory damages for Lusardi in connection with the findings of sex discrimination and hostile environment.

It will be interesting to see whether the federal courts will fall in line with this ruling, which contradicts older court opinions.