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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.

Supreme Court May Consider Whether Federal Law Already Outlaws Sexual Orientation Discrimination

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

Lambda Legal has announced that it will petition the Supreme Court to decide whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination because of sex, also bans discrimination because of sexual orientation. Lambda made the announcement on July 6, when the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, announced that the full circuit court would not reconsider a decision by a three-judge panel that had ruled on March 10 against such a claim in a lawsuit by Jameka K. Evans, a lesbian security guard who was suing Georgia Regional Hospital for sexual orientation discrimination.

The question whether Title VII can be interpreted to cover sexual orientation claims got a big boost several months ago when the full Chicago-based 7th Circuit ruled that a lesbian academic, Kimberly Hively, could sue an Indiana community college for sexual orientation discrimination under the federal sex discrimination law, overruling prior panel decisions from that circuit.  The 7th Circuit was the first federal appeals court to rule in favor of such coverage.  Lambda Legal represented Hively in her appeal to the 7th Circuit.

Title VII, adopted in 1964 as part of the federal Civil Rights Act, did not even include sex as a prohibited ground of discrimination in the bill that came to the floor of the House of Representatives for debate. The primary focus of the debate was race discrimination. But a Virginia representative, Howard Smith, an opponent of the bill, introduced a floor amendment to add sex.  The amendment was approved by an odd coalition of liberals and conservatives, the former out of a desire to advance employment rights for women, many of the later hoping that adding sex to the bill would make it too controversial to pass. However, the amended bill was passed by the House and sent to the Senate, where a lengthy filibuster delayed a floor vote for months before it passed without much discussion about the meaning of the inclusion of sex as a prohibited ground for employment discrimination.  (The sex amendment did not apply to other parts of the bill, and the employment discrimination title is the only part of the 1964 Act that outlaws sex discrimination.)

Within a few years both the Equal Employment Opportunity Commission and federal courts had issued decisions rejecting discrimination claims from LGBT plaintiffs, holding that Congress did not intend to address homosexuality or transsexualism (as it was then called) in this law. The judicial consensus against coverage did not start to break down until after the Supreme Court’s 1989 decision on Ann Hopkin’s sex discrimination lawsuit against Price Waterhouse.  The accounting firm had denied her partnership application.  The Court accepted her argument that sex stereotyping had infected the process, based on sexist comments by partners of the firm concerning her failure to conform to their image of a proper “lady partner.”

Within a few years, litigators began to persuade federal judges that discrimination claims by transgender plaintiffs also involved sex stereotyping. By definition a transgender person does not conform to stereotypes about their sex as identified at birth, and by now a near consensus has emerged among the federal courts of appeals that discrimination because of gender identity or expression is a form of sex discrimination under the stereotype theory.  The Equal Employment Opportunity Commission changed its position as well, following the lead of some of the court decisions, in 2012.

Advocates for gay plaintiffs also raised the stereotype theory, but with mixed success. Most federal circuit courts were unwilling to accept it unless the plaintiff could show that he or she was gender-nonconforming in some obvious way, such as effeminacy in men or masculinity (akin to the drill sergeant demeanor of Ann Hopkins) in women.  The courts generally rejected the argument that to have a homosexual or bisexual orientation was itself a violation of employer’s stereotypes about how men and women were supposed to act, and some circuit courts, including the New York-based 2nd Circuit, had ruled that if sexual orientation was the “real reason” for discrimination, a Title VII claim must fail, even if the plaintiff was gender nonconforming.  Within the past few years, however, several district court and the EEOC have accepted the stereotype argument and other arguments insisting that discrimination because of sexual orientation is always, as a practical matter, about the sex of the plaintiff.  This year, for the first time, a federal appeals court, the Chicago-based 7th Circuit, did so in the Hively case.  A split among the circuits about the interpretation of a federal statute is listed by the Supreme Court in its practice rules as the kind of case it is likely to accept for review.

The Supreme Court has been asked in the past to consider whether Title VII could be interpreted to cover sexual orientation and gender identity claims, but it has always rejected the invitation, leaving in place the lower court rulings.

However, last year the Court signaled its interest in the question whether sex discrimination, as such, includes gender identity discrimination, when it agreed to review a ruling by the Richmond-based 4th Circuit Court of Appeals, which held that the district court should not have dismissed a sex-discrimination claim by Gavin Grimm, a transgender high school student, under Title IX of the Education Amendments of 1972, which bans sex discrimination by schools that get federal money.  The 4th Circuit held in Grimm’s case that the district court should have deferred to an interpretation of the Title IX regulations by the Obama Administration’s Department of Education, which had decided to follow the lead of the EEOC and federal courts in Title VII cases and accept the sex stereotyping theory for gender identity discrimination claims. Shortly before the Supreme Court was scheduled to hear arguments in this case, however, the Trump Administration “withdrew” the Obama Administration interpretation, pulling the rug out from under the 4th Circuit’s decision.  The Supreme Court then canceled the argument and sent the case back to the 4th Circuit, where an argument has been scheduled for this fall on the question whether Title IX applies in the absence of such an executive branch interpretation.

Meanwhile, the Title VII issue has been percolating in many courts around the country. Here in New York, the 2nd Circuit Court of Appeals has had several recent panel decisions in which the judges have refused to allow sexual orientation discrimination claims because they are bound by earlier decisions of the court to reject them, although in some cases they have said that the gay plaintiff could maintain their Title VII case if they could show gender nonconforming behavior sufficient to evoke the stereotype theory. In one of these cases, the chief judge of the circuit wrote a concurring opinion, suggesting that it was time for the Circuit to reconsider the issue by the full court.  In another of these cases, Zarda v. Altitude Express, the court recently granted a petition for reconsideration by the full bench, appellants’ briefs and amicus briefs were filed late in June, and oral argument has been scheduled for September 26.  The EEOC as well as many LGBT rights and civil liberties organizations and the attorneys general of the three states in the circuit have filed amicus briefs, calling on the 2nd Circuit to follow the 7th Circuit’s lead on this issue.

This sets up an interesting dynamic between the 11th Circuit case, Evans, and the 2nd Circuit case, Zarda.  Lambda’s petition for certiorari (the technical term for seeking Supreme Court review) is due to be filed by 90 days after the denial of its rehearing petition by the 11th Circuit, which would put it early in October, shortly after the 2nd Circuit’s scheduled argument in Zarda.  After Lambda files its petition, the Respondent, Georgia Regional Hospital (perhaps, as a public hospital, represented by the state attorney general’s office), will have up to 30 days to file a response, but this is uncertain, since the hospital failed to send an attorney to argue against Evans’ appeal before the 11th Circuit panel.  Other interested parties who want the Supreme Court to take or reject this case may filed amicus briefs as well.  If Lambda uses all or virtually all of its 90 days to prepare and file its petition, the Supreme Court would most likely not announce whether it will take the case until late October or November.  If it takes the case, oral argument would most likely be held early in 2018, with an opinion expected by the end of the Court’s term in June.

That leaves the question whether the 2nd Circuit will move expeditiously to decide the Zarda case?  Legal observers generally believe that the 2nd Circuit is poised to change its position and follow the 7th Circuit in holding that sexual orientation claims can be litigated under Title VII, but the circuit judges might deem it prudent to hold up until the Supreme Court rules on the Evans petition and, if that petition is granted, the 2nd Circuit might decide to put off a ruling until after the Supreme Court rules.  In that case, there will be no change in the 2nd Circuit’s position until sometime in the spring of 2018, which would be bad news for litigants in the 2nd Circuit.  Indeed, some district judges in the Circuit are clearly champing at the bit to be able to decide sexual orientation discrimination claims under Title VII, and two veteran judges have bucked the circuit precedent recently, refusing to dismiss sexual orientation cases, arguing that the 2nd Circuit’s precedents are outmoded.  A few years ago the 2nd Circuit accepted the argument in a race discrimination case that an employer violated Title VII by discriminating against a person for engaging in a mixed-race relationship, and some judges see this as supporting the analogous argument that discriminating against somebody because they are attracted to a person of the same-sex is sex discrimination.

The 2nd Circuit has in the past moved to rule quickly on an LGBT issue in a somewhat similar situation.  In 2012, cases were moving up through the federal courts challenging the Defense of Marriage Act (DOMA), which had been held unconstitutional by several district courts.  A race to the Supreme Court was emerging between cases from Boston (1st Circuit), New York (2nd Circuit), and San Francisco (9th Circuit).  The Supreme Court received a petition to review the 1st Circuit case, where GLAD represented the plaintiffs.  The ACLU, whose case on behalf of Edith Windsor was pending before the 2nd Circuit, filed a petition with the Supreme Court seeking to leapfrog the district court and bring the issue directly up to the highest court.  After the ACLU filed its petition, the 2nd Circuit moved quickly to issue a decision, and the Supreme Court granted the petition.  Meanwhile, Lambda Legal, representing the plaintiff whose case was pending in the 9th Circuit, had filed its own petition asking the Supreme Court to grant review before the 9th Circuit decided that appeal.  It was all a bit messy, but ultimately the Court granted the ACLU’s petition and held the other petitions pending its ultimate decision, announced on June 26, 2013, declaring DOMA unconstitutional.  If the 2nd Circuit moves quickly, it might be able to turn out an opinion before the Supreme Court has announced whether it will review the Evans case, as it did in 2012 in the DOMA case (although that was just a panel decision, not a ruling by the full circuit bench.)  The timing might be just right for that.

Another concern, of course, is the composition of the Supreme Court bench when this issue is to be decided. At present, the five justices who made up the majority in the DOMA and marriage equality cases are still on the Court, but three of them, Justices Anthony Kennedy (who wrote those opinions), Ruth Bader Ginsburg, and Stephen Breyer, are the three oldest justices, and there have been rumors about Kennedy considering retirement.  Donald Trump’s first appointee to the Court, Neil Gorsuch, filling the seat previously occupied by arch-homophobe Antonin Scalia, immediately showed his own anti-LGBT colors with a disingenuous dissenting opinion issued on June 26 in a case from Arkansas involving birth certificates for the children of lesbian couples, and it seems likely that when or if Trump gets another appointment, he will appoint a person of similar views.  Kennedy, who turns 81 this month, has not made a retirement announcement and has hired a full roster of court clerks for the October 2017 Term, so it seems likely he intends to serve at least one more year.  There is no indication that Ginsburg, 84, or Breyer, 79 in August, plan to retire, but given the ages of all three justices, nothing is certain.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Lecture for Investiture as Robert F. Wagner Professor of Labor and Employment Law

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

Arthur S. Leonard, Lecture for Investiture as Robert F. Wagner Professor of Labor and Employment Law, New York Law School, April 26, 2017

A Battle Over Statutory Interpretation: Title VII and Claims of Sexual Orientation and Gender Identity Discrimination

I feel particularly honored to have my name associated with that of United States Senator Robert F. Wagner, Sr., NYLS Class of 1900, a hero of the New Deal whose legislative leadership gave us such important achievements as the National Labor Relations Act – commonly known among labor law practitioners as the Wagner Act – and the Social Security Act — laws that have shaped our nation for generations.   Senator Wagner was an immigrant who made an indelible mark on the United States. I hope that in some small way I have made a contribution that makes this named chair fitting.

I decided to select a topic for this talk that would bring together the two major areas of my teaching and scholarship: labor and employment law, and sexuality law. These intersect in the question whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination against an individual because of his or her sex, will be open to claims by job applicants and workers that they have suffered discrimination because of their sexual orientation or gender identity. We are at a decisive point in the judicial battle over that question, having achieved just weeks ago the breakthrough of our first affirmative appellate ruling on the sexual orientation question, following several years of encouraging developments on the gender identity question.

To understand the significance of this, we have to go back more than half a century, to the period after World War II when the modern American gay rights movement began stirring with the protests of recent military veterans against unequal benefits treatment, with the formation of pioneering organizations like the Mattachine Society in Los Angeles and New York and The Daughters of Bilitis in San Francisco, and with the vital behind-the-scenes work undertaken by gay scholars as the great law reform effort of the Model Penal Code was being launched by the American Law Institute. That postwar period of the late 1940s and 1950s played out alongside the rise of the Civil Rights Movement, for which the passage of the Civil Rights Act of 1964 was a signal achievement.

The early gay rights advocacy groups had their lists of goals, and some kind of protection against discrimination was prominent among them, but that task seemed monumental, at a time when there was no federal statute prohibiting employment discrimination of any kind. Until Illinois adopted the Model Penal Code in 1960, which effectively repealed criminal sanctions for private consensual gay sex, it was a crime in every state; a serious felony with long prison sentences in many. President Dwight Eisenhower issued an executive order shortly after taking office banning the employment of “homosexuals” and “sexual perverts” in the federal civil service. A major immigration law passed during the 1950s for the first time barred homosexuals from immigrating to the U.S. and qualifying for citizenship by labeling us as being “afflicted by psychopathic personality,” making us excludable on medical grounds. The military barred gay people from serving on similar grounds, and many lines of work that required state licensing and determinations of moral fitness systematically excluded LGBT people. To be an ‘openly gay’ lawyer or doctor was virtually unthinkable in the 1950s and on into the 1960s.

When Congress was considering the landmark civil rights bill, first introduced during the Kennedy Administration and shepherded into law by Lyndon Johnson, the idea that lesbians, gay men, bisexuals and transgender people might seek or obtain assistance rather than condemnation from Congress seemed a pipe dream. None of the legislators involved with the bill proposed protecting members of these groups from discrimination. Title VII, the provision of the bill dealing with employment discrimination, was limited in its original form to discrimination because of race or color, religion, or national origin. A floor amendment, introduced by Howard Smith of Virginia, a conservative Southern Democrat who was opposed to the bill, proposed to add “sex” to the prohibited grounds for discrimination. The amendment carried, the bill passed, and it went to the Senate where it was held up by one of the longest filibusters in history – at a time when filibusters involved unbroken floor debate by the opponents of a pending measure, with no vote on the merits until the Chamber was thoroughly exhausted and no opponent could be found to continue speaking. The leadership of the Senate, trying to avoid having the bill bottled up in committees headed by conservative senior Southern senators, had sent the bill direct to the floor with a tight limit on amendments. Thus committee reports that would have provided a source of legislative history on the meaning of “sex” in the bill are missing. The only floor amendment relating to the addition of “sex” to Title VII was to clarify that pay practices that were authorized under the Equal Pay Act, which had been passed the year before, would not be held to violate Title VII. The statute contained no definition of “sex,” and in the early years after its passage, the general view, held by the courts and the Equal Employment Opportunity Commission, was that the ban on sex discrimination simply prohibited employers from treating women worse than men – with little agreement about what that meant. In fact, in an early interpretive foray, the Supreme Court decided that Title VII did not prohibit discrimination against women because they became pregnant. The resulting public outcry inspired Congress to amend the statute to make clear that discrimination against a woman because of pregnancy or childbirth was considered to be discrimination because of sex.

Early attempts by gay or transgender people to pursue discrimination claims under Title VII all failed. The EEOC and the courts agreed that protecting people from discrimination because of their sexual orientation or transgender status was not intended by Congress. They embraced a literalistic “plain language” interpretation of Title VII, including a narrow biological understanding of sex.

But something began to happen as the courts considered a wider variety of sex discrimination claims. It became clear that a simplistic concept of sex would not be adequate to achieve the goal of equality of opportunity in the workplace. Legal theorists had been advancing the concept of a “hostile environment” as a form of discrimination, first focusing on the open hostility that many white workers showed to black, Latino and Asian workers in newly-integrated workplaces. During the 1970s the courts began to expand that concept to women who experienced hostility in formerly all-male workplaces as well. Lower federal courts were divided about whether such “atmospherics” of the workplace could be considered terms or conditions of employment when they didn’t directly involve refusals to hire or differences in pay or work assignments. Finally the Supreme Court broke that deadlock in 1986, holding in Meritor Savings Bank v. Vinson that a woman who experienced workplace hostility so severe that it could be said to affect her terms and conditions of employment would have a sex discrimination claim under Title VII, and subsequent cases clarified that the plaintiff did not have to show a tangible injury, although a finding that working conditions were so intolerable that a reasonable person would quit would clearly meet the test of a hostile environment. Some courts began to extend this reasoning to complaints by men, in situations where male co-workers subjected them to verbal and even physical harassment.

The Court also began to grapple with the problem of sex stereotypes, and how easily employers and co-workers could fall into stereotyped thinking to the disadvantage of minorities and women. Stereotypes about young mothers’ ability to balance work and home obligations, stereotypes about the ability of women to do physically challenging working, stereotypes about female longevity and the costs of retirement plans – all of these issues came before the Court and ultimately led it to expand the concept of sex discrimination more broadly than legislators of the mid-1960s might have imagined.

The key stereotyping case for building a theory of protection for sexual minorities was decided in 1989 – Price Waterhouse v. Hopkins. Ann Hopkins’ bid for partnership was denied because some partners of the firm considered her inadequately feminine. They embraced a stereotype about how a woman partner was supposed to look and behave. Hopkins, with her loud and abrasive manner and appearance, failed to conform to that stereotype. Communicating the firm’s decision to pass over her partnership application, the head of her office told her she could improve her chances for the next round by dressing more femininely, walking more femininely, toning down her speech, wearing make-up and jewelry, having her hair styled. Her substantial contributions to the firm and her leadership in generating new business counted for little, when decision-makers decided she was inadequately feminine to meet their expectations. In an opinion by Justice William J. Brennan, Jr., the Court accepted Hopkins’ argument that allowing such considerations to affect the partnership decision could be evidence of a prohibited discriminatory motivation under Title VII. The Court’s opinion embraced the idea that discrimination because of “gender,” not just discrimination because of biological sex, came within the scope of Title VII’s prohibition. The statutory policy included wiping away gender stereotypes that created barriers to equal opportunity for women in the workplace.

Although Ann Hopkins was not a lesbian and nothing was said about homosexuality in her case, the implications of the ruling became obvious over time as federal courts dealt with a variety of stereotyping claims. A person who suffered discrimination because she did not appear or act the way people expected a woman to appear or act was protected, and that sounded to lots of people like a description of discrimination against transgender people and some – but perhaps not all – lesbians, gay men and bisexuals. The argument seemed particularly strong when an employer discriminated against a person who was hired appearing and acting as a man and then began to transition to living life as a woman.

At the same time, legal academics had begun to publish theoretical arguments supporting the idea that discrimination against gay people was a form of sex discrimination. Among the earliest were Professor Sylvia Law of New York University, whose 1988 article in the Wisconsin Law Review, titled “Homosexuality and the Social Meaning of Gender,” suggested that anti-gay discrimination was about “preserving traditional concepts of masculinity and femininity. Law’s pioneering work was quickly followed by the first of many articles by Andrew Koppelman, first in a student note he published in the Yale Law Journal in 1988 titled “The Miscegenation Analogy: Sodomy Law as Sex Discrimination,” later in his 1994 article in the New York University Law Review titled “Why Discrimination Against Lesbians and Gay Men is Sex Discrimination.” Both Koppelman, now a professor at Northwestern University, and Law proposed theoretical arguments for treating anti-gay discrimination as sex discrimination.

Seizing upon the Price Waterhouse precedent, transgender people and gay people began to succeed in court during the 1990s by arguing that their failure to conform to gender stereotypes was the reason they were denied hiring or continued employment, desirable assignments or promotions. A strange dynamic began to grow in the courts, as judges repeated, over and over again, that Title VII did not prohibit discrimination because of sexual orientation or gender identity, as such, but that it did prohibit discrimination against a person because of his or her failure to conform to gender stereotypes and expectations, regardless of the plaintiff’s sexual orientation. Many of the courts insisted, however, that there was one gender stereotype that could not be the basis of a Title VII claim – that men should be attracted only to women, and women should be attracted only to men. To allow a plaintiff to assert such a claim would dissolve the line that courts were trying to preserve between sex stereotyping claims and sexual orientation or gender identity discrimination claims. Decades of past precedents stood in the way of acknowledging the unworkability of that line.

Ten years after the Price Waterhouse decision, the Supreme Court decided another sex discrimination case, Oncale v. Sundowner Offshore Services, with an opinion by Justice Antonin Scalia that helped to fuel the broadening interpretation of Title VII. The 5th Circuit Court of Appeals had ruled that a man who is subjected to workplace harassment of a sexual nature by other men could not bring a hostile environment sex discrimination claim under Title VII. The court of appeals reasoned that Congress intended in 1964 to prohibit discrimination against women because they were women or men because they were men, and that such a limited intent could not encompass claims of same-sex harassment, which would be beyond the expectations of the legislators who passed that law. In reversing this ruling, Justice Scalia, who was generally skeptical about the use of legislative history to interpret statutes, wrote for the Court that the interpretation of Title VII was not restricted to the intentions of the 1964 Congress. While conceding that same-sex harassment was not one of the “evils” that Congress intended to attack by passing Title VII, he wrote:

“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. Title VII prohibits discrimination because of sex in employment. This must extend to sex-based discrimination of any kind that meets the statutory requirements.”

Thus, as our collective, societal understanding of sex, gender, sexuality, identity and orientation broadens, our concept of sex discrimination as prohibited by Title VII also broadens. With the combined force of Price Waterhouse and Oncale, some federal courts began to push the boundaries even further during the first decade of the 21st century.

By the time the Equal Employment Opportunity Commission ruled in 2012 in Macy v. Holder, a federal sector sex discrimination case, that a transgender plaintiff could pursue a Title VII claim against a division of the Justice Department, its opinion could cite a multitude of federal court decisions in support of that conclusion, including two Title VII decisions by the 6th Circuit Court of Appeals involving public safety workers who were transitioning, and a 2011 ruling by the 11th Circuit Court of Appeals that a Georgia state agency’s discrimination against an employee because she was transitioning violated the Equal Protection Clause as sex discrimination. There were also federal appellate rulings to similar effect under the Equal Credit Opportunity Act and the Violence against Women Act, as well as numerous trial court rulings under Title VII. So the EEOC was following the trend, not necessarily leading the parade, when it found that discrimination against a person because of their gender identity was a form of sex discrimination.

After the Supreme Court’s landmark ruling in Lawrence v. Texas in 2003, striking down a state sodomy law under the 14th Amendment, and further rulings in 2013 and 2015 in the Windsor and Obergefell cases, leading to a national right to marry for same-sex couples, the persistence by many courts in asserting that Title VII did not prohibit sexual orientation discrimination appeared increasingly archaic. Just weeks after the Obergefell decision, the EEOC issued another landmark ruling in July 2015, David Baldwin v. Anthony Foxx, reversing half a century of EEOC precedent and holding that sexual orientation discrimination claims were “necessarily” sex discrimination claims covered by Title VII. The Commission ruled that a gay air traffic controller could bring a Title VII claim against the Department of Transportation, challenging its refusal to hire him for a full-time position at the Miami air traffic control center because of his sexual orientation.

Building on the Price Waterhouse, Oncale and Macy decisions, the EEOC embraced several alternative theories to support this ruling. One was the now well-established proposition that an employer may not rely on “sex-based considerations” or “take gender into account” when making employment decisions, unless sex was a bona fide occupational qualification – a narrow statutory exception that is rarely relevant to a sexual orientation or gender identity case.

“Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms,” wrote the EEOC. “Sexual orientation as a concept cannot be defined or understood without reference to sex. Sexual orientation is inseparable from and inescapably linked to sex and, therefore, allegations of sexual orientation discrimination involve sex-based considerations.” By the summer of 2015, the agency was able to cite several federal trial court decisions applying these concepts in particular cases.

Another theory was based on the associational discrimination theory. Courts had increasingly accepted the argument that discrimination against a person because he or she was in an interracial relationship was discrimination because of race. The analogy was irresistible: Discriminating against somebody because they are in a same-sex relationship must be sex discrimination, because it involved taking the employee’s sex into account. Denying a job because a man is partnered with a man rather than with a woman means that his sex, as well as his partner’s sex, was taken into account by the employer in making the decision.

Finally, the Commission embraced the stereotyping theory that some courts had refused to fully embrace: that sexual orientation discrimination is sex discrimination because it necessarily involves discrimination based on gender stereotypes, not just those involving appearance, mannerisms, grooming, or speech, but also stereotypes about appropriate sexual attractions. Quoting a Massachusetts federal trial court ruling, the agency wrote, “Sexual orientation discrimination and harassment are often, if not always, motivated by a desire to enforce heterosexually defined gender norms. . . The harasser may discriminate against an openly gay co-worker, or a co-worker that he perceives to be gay, whether effeminate or not, because he thinks, ‘real’ men should date women, and not other men.” Professor Law’s theoretical proposition of 1988 was now surfacing in court and agency rulings a quarter century later.

The EEOC also rejected the view that adopting this expanded definition of sex discrimination required new congressional action, pointing out that the courts had been expanding the definition of sex discrimination under Title VII continually since the 1970s, with minimal intervention or assistance from Congress.

Since 2015 the issue of sexual orientation discrimination under Title VII has risen to the level of the circuit courts of appeals. In most of the circuits, there are precedents dating back decades holding that sexual orientation claims may not be litigated under Title VII. These precedents are softened in some circuits that have accept discrimination claims from gay men or lesbians who plausibly asserted that their visible departure from gender stereotypes provoked discrimination against them. But many of these appeals courts have strained to draw a line between the former and the latter, and have rejected stereotyping claims where they perceived them as attempts to “bootstrap” a sexual orientation claim into Title VII territory.

Ironically, one judge who emphatically rejected such a case several years ago with the bootstrapping objection, Richard Posner of the 7th Circuit, is the author of a concurring opinion in this new round of circuit court rulings in which he argues that it is legitimate for federal courts to “update” statutes without waiting for Congress in order to bring them into line with current social trends. This was part of the 7th Circuit’s en banc ruling in Kimberly Hively v. Ivy Tech Community College, the April 4, 2017, decision that is the first by a federal appeals court to embrace all aspects of the EEOC’s Baldwin decision and hold that a lesbian could pursue a sexual orientation claim under Title VII. Posner’s argument echoes one made decades ago by Guido Calabresi, then a professor at Yale, now a judge on the 2nd Circuit, in a series of lectures published as a book titled “A Common Law for the Age of Statutes,” in which he argued that legislative inertia would justify courts in updating old statutes to meet contemporary needs. Although Posner did not cite Calabresi’s book, his argument is much the same. He quoted both Justice Scalia’s statement from Oncale and an earlier iteration of similar sentiments in an opinion by Justice Oliver Wendell Holmes from 1920, in which Holmes wrote: “The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”

The federal circuit courts follow the rule that when a three-judge panel of the circuit interprets a statute, it creates a binding circuit precedent which can be reversed only by the full bench of the court in an en banc ruling, or by the Supreme Court, or by Congress changing the statute. The Hively ruling reversed a three-judge panel decision that had rejected the plaintiff’s Title VII claim based on prior circuit precedents. The vote was 8-3. Incidentally, 5 of the judges in the 8-member majority were appointees of Republican presidents. The employer in that case quickly announced that it would not seek Supreme Court review, but this ruling creates a split among the circuit courts, so it is only a matter of time before the Supreme Court receives a petition asking for a definitive interpretation of Title VII on this question.

The 7th Circuit opinion by Chief Judge Diane Wood accepted all of the EEOC’s theories from the Baldwin decision. Judge Wood concluded that “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’” “We hold that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”

Dissenting Judge Diane Sykes criticized the majority for deploying “a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion.” Here the battle is joined. For the majority, it is appropriate to trace the development of case law over decades, treating the concept of sex discrimination as evolving. For Judge Posner, concurring, it is legitimate for the court to set aside the pretense of ordinary interpretation and to “update” an old statute to reflect contemporary understandings. And for Judge Sykes, these are both illegitimate because it violates the division of authority between the legislature and the courts to adopt an “interpretation” that would be outside the understanding of the legislators who enacted the statute.

Now the scenario is playing out in other circuits. In recent weeks, the Atlanta-based 11th Circuit and the New York-based 2nd Circuit have issued panel rulings refusing to allow sexual orientation discrimination claims under Title VII. The panels did not consider the issue afresh and decided to reaffirm the old rulings on the merits, but rather asserted that they were powerless to do so because of the existing circuit precedents. In both of the cases decided in March, Evans v. Georgia Regional Hospital and Christiansen v. Omnicom Group, the panels sent the cases back to the trial court to see whether they could be litigated as sex stereotyping cases instead of sexual orientation cases. But one judge dissented in the 11th Circuit, arguing that an old pre-Price Waterhouse precedent should not longer be treated as binding. The 2nd Circuit panel rejected the trial judge’s conclusion that because the gay plaintiff’s complaint included evidence that his treatment was tainted by homophobia he could not assert a sex stereotyping claim, and two members of the panel wrote a concurring opinion virtually accepting the EEOC’s view of the matter and suggesting that the circuit should reconsider the issue en banc.. In both cases, the panels took the position that sex stereotyping claims could be evaluated without reference to the sexual orientation of the plaintiff. And, in both of these cases, lawyers for the plaintiffs are asking the circuits to convene en banc benches to reconsider the issue, as a preliminary to seeking possible review in the Supreme Court. A different 2nd Circuit panel has also issued a ruling where sex stereotyping of the sort that is actionable in the 2nd Circuit is not part of the case, and counsel in that case is also filing a petition for en banc review.

One or more of these petitions is likely to be granted. While we may see more en banc rulings in favor of allowing sexual orientation discrimination claims, at some point a new circuit split may develop, leading inevitably to the Supreme Court. Or the issue could get to the Supreme Court by an employer seeking further review, since older rulings in other circuits still present the kind of circuit splits that the Supreme Court tries to resolve.

That leads to the highly speculative game of handicapping potential Supreme Court rulings. Neil Gorsuch’s confirmation restores the ideological balance that existed before Justice Scalia’s death. The Court as then constituted decided the historic same-sex marriage cases, Windsor and Obergefell, with Justice Kennedy, a Republican appointee, writing for the Court in both cases, as well as in earlier gay rights victories, Romer v. Evans and Lawrence v. Texas. These opinions suggest a degree of empathy for gay litigants that might lead Kennedy to embrace an expansive interpretation of Title VII. He is part of a generation of appellate judges appointed by Ronald Reagan during the 1980s who made up half of the majority in the recent 7th Circuit ruling: Richard Posner, Frank Easterbrook, Joel Flaum, and Kenneth Ripple. Another member of that majority, Ilana Rovner, was appointed by Reagan’s successor, George H.W. Bush. This line-up underlies optimism that Kennedy might join with the Clinton and Obama appointees on the Supreme Court to produce a five-judge majority to embrace the EEOC’s interpretation. Such optimism may also draw on Kennedy’s decisive rejection of the argument that legal rules are frozen at the time of their adoption and not susceptible to new interpretations in response to evolving social understandings. This was the underlying theme of his opinions in the four major gay rights decisions.

Since the 1970s supporters of gay rights have introduced bills in Congress to amend the federal civil rights laws to provide explicit protection for LGBT people. None of those attempts has succeeded to date. If the judicial battle reaches a happy conclusion, those efforts might be rendered unnecessary, although there is always a danger in statutory law of Congress overruling through amendment, but that seems unlikely unless the Republicans attain a filibuster-proof majority in the Senate.

On that optimistic note, I conclude with thanks for your attention, and I am happy to answer questions now.

 

Supreme Court Will Not Decide Transgender Title IX Case This Term

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Supreme Court Will Hear Title IX Transgender Discrimination Case and Case Challenging Social Media Restrictions on Sex Offenders

Posted on: October 30th, 2016 by Art Leonard No Comments

Supreme Court Will Hear Title IX Transgender Discrimination Case and Case Challenging Social Media Restrictions on Sex Offenders

The Supreme Court substantially enlivened its docket for the October 2016 Term on October 28 when it granted petitions for certiorari in Gloucester County School Board v. G.G., No. 16-273, and Packingham v. North Carolina, No. 15-1194.  In Gloucester, a school district in Virginia, obligated not to discriminate because of sex under Title IX of the Education Amendments Act of 1972, seeks review of the 4th Circuit’s decision, 822 F.3d 709 (2016), holding that the district court should defer to the U.S. Department of Education’s interpretation of a regulation on restrooms in educational facilities, 34 C.F.R. Sec. 106.33, that would require the school to let a transgender boy use the boys’ restroom facilities at his high school.  In Packingham, the petitioner seeks to overturn the North Carolina Supreme Court’s decision, 368 N.C. 380, 777 S.E.2d 738 (2015), upholding his conviction for violating North Carolina’s rules governing registered sex offenders by posting a message on Facebook.com celebrating the dismissal of a traffic ticket.  Lester Packingham claims that the broad prohibition of his use of social media violates his 1st Amendment rights.

The Gloucester Case

The Gloucester case was closely watched by LGBT lawyers and legal commentators for presenting the Court with a vehicle to respond to the broader question of whether federal laws prohibiting discrimination “because of sex,” mostly passed many decades ago, can now be construed to forbid gender identity discrimination (and maybe, also, sexual orientation discrimination), despite the obvious lack of intent by the enacting legislators in the 1960s and 1970s to reach such discrimination.  That is, to recur to a question repeatedly raised by the late Justice Antonin Scalia, are we governed by the intentions of our legislators or by reasonable interpretations of the actual texts they adopted in their statutes, or that administrative agencies subsequently adopted in regulations intended to aid in the enforcement of the statutes?  Scalia, who was an ardent foe of using “legislative history” as a method of statutory interpretation, decisively argued that courts should focus on the language of the statute, not viewed in isolation of course but rather in the context of the overall statute (including any declaration of congressional purpose contained in it), and he won unanimous concurrence by his colleagues in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), holding that a man employed in an all-male workplace could maintain an action for hostile environment sexual harassment under Title VII, even though it was unlikely that the enacting Congress in 1964 was thinking about same-sex harassment when it amended Title VII to add “sex” to the list of forbidden grounds for workplace discrimination.  Scalia wrote for the Court that we are governed by the statutory text, and thus Mr. Oncale could maintain his Title VII suit subject to his burden to prove that he was harassed “because of sex” as specified by the statute.  The Equal Employment Opportunity Commission (EEOC) has prominently cited and quoted from Justice Scalia’s Oncale opinion in its federal employment rulings of recent years (Macy, Lusardi, Baldwin) holding that discrimination because of gender identity or sexual orientation is “necessarily” discrimination “because of sex,” even though the 1964 Congress would not necessarily have thought so.  Although Gloucester does not directly involve Title VII, federal courts have generally followed Title VII precedents when they interpret the sex discrimination ban in Title IX, as the 4th Circuit explained in this case.

The controversy arose when fellow students and their parents objected to Gavin Grimm, a transgender boy, using the boys’ restrooms during fall term of his sophomore year, in 2014. The principal of the high school had given Grimm permission to use the boys’ restrooms, after being presented with the facts about Grimm’s transition and his discomfort with continuing to use the girls’ restrooms, since he was dressing, grooming, and – most significantly – strongly identifying as male.  Responding to the complaints, the Gloucester County School Board voted to establish a policy under which students were required to use the restroom consistent with their “biological sex” – the sex identified on their birth certificate – or to use a gender-neutral restroom, of which there were a few in the high school.  Grimm was dissatisfied with this turn of events and enlisted the American Civil Liberties Union (ACLU) of Virginia to sue the school board in the U.S. District Court for the Eastern District of Virginia, in Newport News.  The case was assigned to Senior U.S. District Judge Robert G. Doumar, who was appointed to the district court by President Ronald Reagan in 1981.  The plaintiff was identified in the original complaint as “G.G., by his next friend and mother, Deirdre Grimm,” but Gavin Grimm decided early on to be open about his role as plaintiff and has spoken publicly about the case.  The complaint relied on Title IX as well as the Equal Protection Clause of the 14th Amendment.

Ruling on a motion for a preliminary injunction by the plaintiff and a motion to dismiss by the defendants on September 17, 2015, 132 F. Supp. 3d 736, Judge Doumar found that Grimm could not win a ruling on the merits of his Title IX claim because, in the judge’s view, Title IX regulations expressly allowed schools to maintain separate restroom facilities for boys and girls based on “sex,” and so it was not unlawful for them to require Grimm to use restrooms consistent with his “sex” which, in the school district’s view, was female. He rejected the ACLU’s claim that he should defer to the U.S. Department of Education’s interpretation of the “bathroom regulation,” which was articulated in a letter that the Department’s Office of Civil Rights (OCR) sent in January 2015 as a “party in interest” in response to Grimm’s request for the Department’s assistance in his case.  OCR took the position, consistent with recent developments in sex discrimination law, that Grimm should be treated as a boy under the circumstances because it was undisputed that this was his gender identity, and thus under the regulation he was entitled to use the boy’s restroom, although he could also request as an accommodation to have access to gender-neutral facilities.   To Judge Doumar, the text of the regulation was clear and unambiguous, so the OCR’s attempt to ‘interpret’ the regulation in favor of Grimm’s claim was not entitled to deference from the court.  He wrote that deferring to the position articulated in the letter would allow OCR to “create a de facto new regulation.”   Doumar opined that if OCR wanted to change the regulation, it should go through the procedures set out in the Administrative Procedure Act, a time-consuming process that would result in a new or amended regulation that would then be subject to direct judicial review in the court of appeals.  As to the facts, Doumar referred to Grimm in his opinion as a “natal female” and seemingly was unwilling to credit the idea that for purposes of the law Grimm should be treated as a boy.  To Doumar, the case presented the simple question whether the school district had to let a girl use the boy’s restroom, and under the “clear” regulation the answer to that question was “No.”  While denying the preliminary injunction and dismissing the Title IX claim, Judge Doumar reserved judgment on the Equal Protection Claim.

Grimm appealed to the 4th Circuit, which reversed Judge Doumar in a 2-1 opinion on April 19, 2016.  Where Doumar saw clarity in the regulation, the 4th Circuit majority saw ambiguity, although a dissenting judge sided with Judge Doumar.  Although the regulation clearly said that schools could maintain separate restroom facilities for males and females, it said nothing directly about which restrooms transgender students could use, thus creating the ambiguity.  Unlike Judge Doumar, the 4th Circuit majority was unwilling to accept the School Board’s argument that a person’s sex is definitely established by their birth certificate.  The court took note of the developing case law in other circuits and in many district courts accepting the proposition that sex discrimination laws are concerned not just with genetic or “biological” sex but rather with the range of factors and characteristics that go into gender, including gender identity and expression.  Many federal courts (including several on the appellate level) have come to accept the proposition that gender identity and sex are inextricably related, that gender dysphoria and transgender identity are real phenomena that deeply affect the identity of people, and that transgender people are entitled to be treated consistent with their gender identity.  The court mentioned, in addition to the OCR letter, a December 2014 OCR publication setting forth the same view, which had been published on the Department of Education’s website.  Thus, the School District’s questioning of deference to an “unpublished letter” was not entirely factual, as the Department had previously published its interpretation on its website, and it was relying on an earlier ruling under Title VII by the EEOC in the Macy employment discrimination case, which was issued in 2012.

Having found that the regulation was ambiguous as to the issue before the court, the 4th Circuit relied on Auer v. Robbins, 519 U.S. 452 (1997), a Supreme Court decision holding that an agency’s interpretation of its own ambiguous regulation should be given controlling weight by the court unless the interpretation is “plainly erroneous or inconsistent with the regulation or statute.”  In other words, a reasonable agency interpretation of an ambiguous regulation should be deferred to by the court.  The 4th Circuit panel majority went on to find that the requirements of Auer were met in this case, and remanded the matter to Judge Doumar to reconsider his ruling.  The court’s discussion made clear what direction the reconsideration should take and stressed urgency. Judge Doumar reacted with alacrity, issuing the requested preliminary injunction on June 23.  The School Board sought a stay, which was denied by both Judge Doumar and the 4th Circuit, which also denied a petition for rehearing en banc. With the new school year looming, and desperate to avoid having to let Grimm use the boys’ restrooms during his final year of high school, the School Board petitioned the Supreme Court for a stay of the preliminary injunction, which was granted on August 3 by a vote of 5-3.  See 136 S. Ct. 2442.  Justice Stephen Breyer, taking the unusual step of issuing a brief statement explaining why he had voted for the stay along with the four more conservative members of the Court; said it was an “accommodation.”  There was speculation at the time about what that meant.  In light of the October 28 vote to grant the School District’s petition for certiorari, it probably meant that the four conservatives had indicated they would likely vote to grant a petition for certiorari to review the 4th Circuit’s decision, so in Breyer’s view it made sense to delay implementing the injunction and to preserve the status quo, as the case would eventually be placed on the Court’s active docket for the October 2016 Term (which runs through June 2017).  Breyer was careful to refrain from expressing any view about the merits in his brief statement.  After the School Board filed its petition for certiorari on August 29, the case generated considerable interest, attracting more than a dozen amicus briefs in support or opposition to the petition, including briefs from many states and from members of Congress.  There will undoubtedly be heavy media interest when the parties file their merits briefs with the Court, accompanied by numerous amicus briefs on both sides of the case.

The School Board’s petition to the Court posed three questions, first asking whether the %Auer% doctrine, which some of the Justices have signaled a desire to overrule, should be reconsidered; second asking whether under the Auer doctrine “an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought” merits deference; and third asking whether the Department’s interpretation of Title IX and the bathroom regulation should be “given effect”?  The Court granted the petition only as to the second and third questions, so there are not four members of the Court ready to reconsider Auer, at least in the context of this case.

The remaining questions give the Court different paths to a decision, one of which has minimal substantive doctrinal significance, while others could make this a landmark ruling on the possible application of federal sex discrimination statutes and regulations to discrimination claims by sexual minorities.

The Court might agree with the School Board that no deference is due to an agency position formulated in response to a particular case and expressed in an unpublished agency letter. This could result in a remand to the 4th Circuit for a new determination of whether Judge Doumar’s dismissal of the Title IX claim was correct in the absence of any need to defer to the agency’s interpretation, a question as to which the 4th Circuit majority has already signaled an answer in its discussion of the merits.

Alternatively, and more efficiently in terms of the development of the law, the Court could take on the substantive issue and decide, at the least, whether interpreting Title IX to extend to gender identity discrimination claims is a viable interpretation, in light of the Court’s seminal ruling in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that an employer’s use of sex stereotypes to the disadvantage of an employee’s promotion application was evidence of intentional discrimination because of sex.  It was that ruling that eventually led federal courts to conclude that because transgender people generally do not conform to sex stereotypes concerning their “biological” sex as determined at birth, discrimination against them is a form of “sex discrimination” in violation of such federal laws as the Fair Credit Act, the Violence Against Women Act, and Title VII of the Civil Rights Act.  The EEOC also relied on Price Waterhouse in reaching its conclusion that transgender plaintiffs could assert discrimination claims under Title VII, and the 6th and 11th Circuits have relied on it in finding that claims of gender identity discrimination by public employees should be treated the same as sex discrimination claims under the 14th Amendment’s Equal Protection Clause.

Were the Supreme Court to rule by majority vote that laws banning discrimination “because of sex” also “necessarily” cover discrimination because of gender identity, rather than issuing a narrower ruling focusing solely on Title IX, one could plausibly assert that the inclusion of “gender identity” in the pending Equality Act bill would not be, strictly speaking, necessary in order to establish a federal policy against gender identity discrimination under all federal sex discrimination laws. But it is possible that the Court might write a more narrowly focused decision that would in some way be logically restricted to Title IX claims. At least one district court, in a case involving a transgender student at the University of Pittsburgh, suggested that there were significant enough differences between workplaces and educational institutions to merit a different approach under Title VII and Title IX, especially noting that many of the students affected by Title IX are not adults, while most people affected by Title VII are older, more experienced, and less susceptible to psychological injury in the realm of sexual development.  There was the suggestion that sexual privacy concerns in the context of an educational institution are different from such concerns in the context of an adult workplace.  The Supreme Court has generally preferred to decide statutory interpretation cases on narrow grounds, so it is possible that a merits decision in this case would not necessarily decide how other sex discrimination laws should be construed.

This case will most likely be argued early in 2017, and it may not be decided until the end of the Court’s term in June. Thus, it is possible that Gavin Grimm could win but never personally benefit as a student at Gloucester County’s high school, since he may have completed his studies before the final decision is issued.  But, of course, if he goes on to college, a winning decision would personally benefit him in being able to use men’s restrooms if he attends a college subject to Title IX – unless, given another complication of our times, he decides to attend a religious school that raises theological objections to letting him use such facilities and seeks to rely on the Hobby Lobby decision to avoid complying with Title IX.  We suspect, however, that his higher education would likely avoid that complication!

The Supreme Court has not granted as many petitions as usual thus far this fall, leading to speculation that it is trying to avoid granting review in cases where the justices might be predictably split evenly on the outcome and thus would not be able to render a precedential decision. If the Senate Republicans stand firm on their position that President Obama’s nominee for the vacant seat, U.S. Court of Appeals Judge Merrick Garland, will not be considered for confirmation, it is possible that the Court will have only eight justices when the Gloucester case is argued.  A tie vote by the Court would leave the 4th Circuit’s decision in place, but it would not be precedential outside of the 4th Circuit.  If a newly-elected president nominates a new candidate and the confirmation process takes the average time of several months, a new justice would probably not be seated in time to participate in deciding this case, unless the Court voted to hold it over for re-argument.  (In the past, the Court has sometimes held new arguments in cases that were heard when the Court was shorthanded.  This happened once when Justice Lewis Powell missed many arguments due to ill health, and his colleagues left it up to him whether to participate in those cases, in some instances by holding new arguments.)  This raises the possibility that Grimm’s graduation from high school might be found to have mooted the case, resulting in a dismissal on jurisdictional grounds.  This wouldn’t be an issue, of course, had the lawsuit been filed by DOE and the Justice Department, but where the plaintiff is an individual, his standing remains an issue throughout consideration of the case.

The Packingham Case

In the Packingham case, the North Carolina Supreme Court, reversing a decision by the state’s court of appeals, held that a state law restricting certain on-line social media use by all registered sex offenders was neither facially unconstitutional nor unconstitutional as applied to the defendant, Lester Gerard Packingham.  The North Carolina court, which divided 5-2 on the case, concluded that the statute was a regulation of conduct that incidentally affects freedom of speech, thus subject to heightened but not strict scrutiny, and that it survived such review due to the state’s important interest in protecting minors from sexual exploitation and to the measures taken by the legislature to narrow the scope of on-line communications that would be affected.

Packingham was convicted in 2002 of a sexual offense involving a minor. The opinion for the Supreme Court by Justice Robert H. Edmunds, Jr., does not specify the nature of the offense, but a reference in the dissenting opinion suggests it did not involve violence.  He did, however, have to register as a sex offender.  In 2008, the state legislature amended the sex offender registration law to make it a crime for a registered sex offender to “access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.”  The statute included a detailed definition of the characteristics of the kinds of sites that would be prohibited, and explicitly exempted various kinds of websites.  In effect, the ban is on sites where a registered sex offender might be able to identify and communicate directly with minors.  Sites that require individuals to be at least 18 years old in order to be members would not be affected by the ban, for example, and those that limited their services to things like commercial transactions for selling goods were also exempted.  After the law was passed, a written notice was sent to all registered sex offenders in the state advising of these new restrictions to which they must comply.  There was evidence in this case that Packingham received the notice.

In 2010 a Durham police officer began an investigation to determine whether any local registered sex offenders were violating the new law. His investigation uncovered the fact that Packingham was maintaining a facebook.com page under an assumed name and had posted messages to it, most recently a message celebrating his escape from traffic ticket liability.  The investigation did not, apparently, uncover any communications by Packingham to minors using facebook.com.  Packingham was indicted for violating the statute, and moved to dismiss the charges on 1st Amendment grounds.  The trial judge denied the motion, finding the statute constitutional as applied to Packingham while declining to rule on Packingham’s facial challenge to the statute, and he was convicted by a jury and sentenced to 6-8 months, suspended for a year while on probation.  Packingham appealed.  The court of appeals reversed, finding that the statute was unconstitutional on its face and as applied, too broadly sweeping in its effect on the free speech rights of registered sex offenders, and unduly vague.

The North Carolina Supreme Court totally rejected the court of appeals’ analysis. For one thing, the court found that the statute regulated conduct (the act of accessing the social media), not directly speech, although it clearly has an incidental effect on the ability of a sex offender to engage in speech activities using social media.  But the court decided that under the “heightened scrutiny” approach for evaluating regulations of conduct that incidentally affect speech, this statute survived because of the important state interest in protecting children, and the legislature’s care in tailoring the prohibition to focus on the kinds of social media where those so inclined could identify and communicate with minors.  The court concluded that this left open a wide variety of social media and other internet forums in which sex offenders were free to participate, and that the statute (and the notices to sex offenders) were written in such a way that somebody who sought to comply with the statute could determine which social media were off-limits.  Nobody disputed that accessing facebook.com was prohibited under this law, for example, and the court concluded that Packingham knew that facebook.com was off-limits for him, as reflected by his opening an account in an assumed name.  (What gave him away was that his photograph on the site matched the photographic depiction on his sex offender registration form.)  The court acknowledged that several similar laws in other states had been declared unconstitutionally, but sought to distinguish them as not being as fine-tuned as the North Carolina law in terms of the kinds of websites that were made off-limits.

The dissent was written by Justice Robin E. Hudson, joined by Justice Cheri Beasley. She disputed the majority’s conclusion that this was a regulation of conduct, but she determined that didn’t make much difference because she concluded that even under the standard of review used by the majority, the statute failed as overly broad and vague.  Restricting all sex offenders without regard to the nature of their offenses, for example, undercut the state’s justification of protecting minors.  Many people are required to register who committed offenses that do not involve minors, and who have no sexual interest in minors. Why, then, is the state restricting their 1st Amendment activities if its articulated justification for the restriction is to protect minors?  She also pointed out that there is no requirement that their offense leading to registration status involved using a computer, so why is their computer access being restricted?  Further, she contested the majority’s conclusion about how narrowly tailored the restriction is.  She pointed out that, literally applied, it could bar somebody from using amazon.com, because that website makes it possible for users to create profile pages including contact information facilitating communications between users with common interests.  Indeed, she pointed out that some websites allow minors to register with the approval of their parents.  One such is the largest circulation daily newspaper in North Carolina, so theoretically Packingham could be barred from accessing the newspaper on-line.  She argued that the law is both facially unconstitutional and unconstitutional as applied to Packingham.

In petitioning the Supreme Court for review, Packingham’s counsel wrote: “The statute singles out a subclass of persons, who are subject to criminal punishment based on expressive, associational, and communicative activities at the heart of the First Amendment, without any requirement that their activity caused any harm or was intended to.” The certiorari grant extends to the questions of whether the law is facially unconstitutional or just unconstitutional as applied to Packingham.  The case has the potential to bring into question numerous state laws that seek to regulate the expressive activities of sex offenders in the name of protecting minors.  Nobody argues that the state does not have a significant interest in protecting minors from sexual exploitation, or that the internet has created new opportunities for adults who are sexually interested in minors to locate and communicate with them.  At issue is how broadly such laws may sweep.  Should the laws pay more attention to the nature of sex offenses leading to registration in deciding whose activities should be restricted, and how narrowly tailored must the restrictions be to avoid subjecting individuals to long-term (even life-long in some cases) restrictions on their ability to use one of the main vehicles for communication in the 21st century without substantial justification for the limitation.  The petition was supported by an amicus brief from professors concerned with the law’s substantial burden they perceived on communicative freedom imposed by the statute.  Interestingly, N.C. Attorney General Roy Cooper did not want to bother responding to the certiorari petition, and filed a waiver of the right to respond on April 6, but then was requested to respond after the amicus brief was filed, and ultimately filed a response on June 30.

The interests of LGBT people are significantly implicated by this dispute. Even after the Supreme Court declared in 2003 that laws against gay sex were not enforceable against individuals engaged in private, adult consensual activities, there is a not inconsiderable number of gay people, especially men, who are still affected by sex registration requirements in many states based on pre-2003 criminal convictions and continuing enforcement of laws involving solicitation, conduct in public, prostitution, and, of course, intergenerational sex.  Many offender registration laws sweep broadly encompassing a wide variety of activity that is not specifically protected under the U.S. Supreme Court’s Lawrence v. Texas ruling, and litigation is ongoing challenging the continued registration requirements imposed in some jurisdictions on people whose offender status is based on pre-Lawrence convictions for conduct that may no longer be criminalized.  In this connection it is notable that there are still several states that have not legislatively reformed their sex crimes laws to comply with the Lawrence ruling, as a result of which law enforcement officials continue to make arrests for constitutionally protected conduct.

 

District Judge Enjoins Enforcement of H.B. 2 against Transgender Plaintiffs by the University of North Carolina

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

U.S. District Judge Thomas D. Schroeder granted a motion for preliminary injunction brought by attorneys for three transgender plaintiffs asserting a Title IX challenge to North Carolina’s bathroom bill, H.B.2. Carcano v. McCrory, 2016 U.S. Dist. LEXIS 114605 (M.D. N.C., August 26, 2016).  Finding that the plaintiffs were likely to succeed on the merits of their Title IX challenge in his district court because he was bound by the 4th Circuit Court of Appeals’ ruling in G.G. v. Gloucester County School Board, 822 F.3d 709 (2016), to defer to the Department of Education’s interpretation of Title IX as banning gender identity discrimination and requiring restroom access consistent with gender identity by transgender students, Judge Schroeder concluded that satisfaction of the first test for preliminary injunctive relief, likelihood of success on the merits under 4th Circuit case law, was easily satisfied.  Judge Schroeder noted that the Supreme Court has stayed a preliminary injunction that was issued in the G.G. case while the school district petitions the Supreme Court to review the 4th Circuit’s ruling, but observed that the stay did not vacate the 4th Circuit’s decision, so the requirement for deferral remains the “law of the circuit,” binding on the district court.

Lambda Legal announced on August 29 that it would attempt to get the court to broaden the injunction so as to protect all transgender people in North Carolina from enforcement of the bathroom provision of H.B. 2.

This case arose after the North Carolina legislature held a special session on March 23, 2016, for the specific purpose of enacting legislation to prevent portions of a recently-passed Charlotte civil rights ordinance from going into effect on April 1. Most of the legislative comment was directed to the city’s ban on gender identity discrimination in places of public accommodation, which – according to some interpretations of the ordinance – would require businesses and state agencies to allow persons to use whichever restroom or locker room facilities they desired, regardless of their “biological sex.” (This was a distortion of the ordinance which, properly construed, would require public accommodations offering restroom facilities to make them available to transgender individuals without discrimination.)  Proponents of the “emergency” bill, stressing their concern to protection the privacy and safety of women and children from male predators who might declare themselves female in order to get access to female-designated facilities for nefarious purposes, secured passage of Section 1 of H.B. 2, the “bathroom bill” provision, which states that any restroom or similar single-sex designated facility operated by the state government (including subsidiary establishments such as public schools and the state university campuses) must designate multiple-user facilities as male or female and limit access according to the sex indicated on individuals’ birth certificates, labeled “biological sex” in the statute.

Another provision of the law preempted local civil rights legislation on categories not covered by state law, and prohibited lawsuits to enforce the state’s civil rights law. This would effectively supersede local ordinances, such as the recently-enacted Charlotte ordinance, wiping out its ban on sexual orientation and gender identity discrimination as well as several other categories covered by Charlotte but not by the rather narrow state civil rights law, such as veteran status. This had the effect of lifting Charlotte’s mandate that places of public accommodation not discriminate in their restroom facilities based on gender identity or sexual orientation, and limited the ordinance’s sex discrimination prohibition to distinctions based on “biological sex.”  Although private sector facilities could, if their owners desired, adopt policies accommodating transgender individuals, they would not have to do so.

A furious round of litigation ensued, with cases brought in two of the three North Carolina federal districts by a variety of plaintiffs, including the three individuals in Carcano (represented by the ACLU of North Carolina and Lambda Legal), who are all transgender people covered by Title IX by virtue of being students or employees of the University of North Carolina. Equality North Carolina, a statewide lobbying group, is co-plaintiff in the case.  Governor McCrory and state Republican legislative leaders sued the federal government, seeking declaratory judgments that H.B. 2 did not violate federal sex discrimination laws, while the Justice Department sued the state officials, seeking a declaration that H.B. 2 did violate federal sex discrimination laws and the Constitution.  A religiously-oriented firm, Alliance Defending Freedom, sued on behalf of parents and students challenging the validity of the Justice Department’s adoption of its Guidelines on Title IX compliance.  There has been some consolidation of the lawsuits, which are at various stages of pretrial maneuvering, discovery and motion practice.  Judge Schroeder’s ruling responded solely to a motion for preliminary relief on behalf of the three plaintiffs in the case against UNC, Governor McCrory and other state officials, including Attorney General Roy Cooper, the Democratic candidate for governor against McCrory.  Cooper is refusing to defend H.B. 2, requiring McCrory to resort to other defense counsel.

The University of North Carolina’s reaction to the passage of H.B. 2 has been curious to watch. At first University President Margaret Spellings announced that UNC was bound by the state law and would comply with it.  Then, after a storm of criticism and the filing of lawsuits, Spellings pointed out that H.B. 2 had no enforcement provisions and that the University would not actively enforce it.  Indeed, in the context of this preliminary injunction motion, the state argued that there was no need for an injunction because the University was not interfering with the three plaintiffs’ use of restroom facilities consistent with their gender identity.  Thus, they argued, there was no harm to the plaintiffs and no reason to issue an order compelling the University not to enforce the bathroom provisions.  Judge Schroeder rejected this argument, pointing out that “UNC’s pronouncements are sufficient to establish a justiciable case or controversy.  The university has repeatedly indicated that it will – indeed, it must – comply with state law.  Although UNC has not changed the words and symbols on its sex-segregated facilities, the meaning of those words and symbols has changed as a result of [the bathroom provisions], and UNC has no legal authority to tell its students or employees otherwise.” In light of those provisions, he wrote, “the sex-segregated signs deny permission to those whose birth certificates fail to identify them as a match.  UNC can avoid this result only by either (1) openly defying the law, which it has no legal authority to do, or (2) ordering that all bathrooms, showers, and other similar facilities on its campuses be designated as single occupancy, gender-neutral facilities.  Understandably, UNC has chosen to do neither.”  Since UNC has not expressly given transgender students and staff permission to use gender-identity-consistent facilities and has acknowledged that H.B. 2 is “the law of the state,” there is a live legal controversy and a basis to rule on the preliminary injunction motion.

Perhaps the key factual finding of Judge Schroeder’s very lengthy written opinion was that the state had failed to show that allowing transgender people to use restroom facilities consistent with their gender identity posed any significant risk of harm to other users of those facilities, and he also found little support for the state’s privacy claims, although he did not dispute the sincerity with which those claims were put forward by legislators. Indeed, as described by the judge, the state has been rather lax in providing any factual basis for its safety and privacy claims in litigating on this motion, and had even failed until rather late in the process to provide a transcript of the legislative proceedings, leaving the court pretty much in the dark as to the articulated purposes for passing the bathroom provision. According to the judge, the only factual submission by the state consisted of some newspaper clippings about men in other states who had recently intruded into women’s restrooms in order to make a political point. This, of course, had nothing to do with transgender people or North Carolina. The judge also pointed out that North Carolina has long had criminal laws in place that would protect the safety and privacy interests of people using public restroom facilities.  In reality, these “justifications” showed that the bathroom provision was unnecessary.  For purposes of balancing the interests of the parties in deciding whether a preliminary injunction should be issued, Schroeder concluded that the harm to plaintiffs in deterring them from using appropriate restroom facilities was greater than any harm to defendants in granting the requested injunction, and that the public interest weighed in favor of allowing these three plaintiffs to use restroom facilities consistent with their gender identities without any fear of prosecution for trespassing.  (Since the bathroom provision has no explicit enforcement mechanism, Judge Schroeder found, its limited effect is to back up the criminal trespassing law by, for example, designating a “men’s room” as being off-limits to a transgender man.)

However, Judge Schroeder, commenting that the constitutional equal protection and due process claims asserted by the plaintiffs were less well developed in the motion papers before him, refused to premise his preliminary injunction on a finding that the plaintiffs were likely to succeed in proving that H.B. 2’s bathroom provision violates the 14th Amendment.  Accepting for purposes of analysis that the plaintiffs were asserting a sex discrimination claim that invoked “heightened scrutiny” of the state’s justification for the bathroom provision, he concluded that it was not clear that the state could not meet that test, referring to 4th Circuit precedents on individual privacy and the state’s interest in protecting the individual privacy of users of public restroom facilities.  He reached a similar conclusion regarding the due process arguments, putting off any ruling on them to the fall when he will hold a hearing on the merits.  There will be pre-trial motions to decide in the other cases that were consolidated with this one for purposes of judicial efficiency, so this ruling was not the last word on preliminary relief or on the constitutional claims.

Judge Schroeder explained that his injunction directly protects only the three plaintiffs and not all transgender students and staff at UNC. “The Title IX claim currently before the court is brought by the individual transgender Plaintiffs on their own behalf,” he wrote; “the current complaint asserts no claim for class relief or any Title IX claim by ACLU-NC on behalf of its members.  Consequently, the relief granted now is as to the individual transgender Plaintiffs.”  Despite that technicality, of course, this preliminary injunction puts the University on notice that any action to exclude transgender students or staff from restroom facilities consistent with their gender identity has already been determined by the district court to be a likely violation of Title IX, which could deter enforcement more broadly.  Given the University’s position in arguing this motion that it was not undertaking enforcement activity under the bathroom bill anyway, there was no immediate need for a broader preliminary injunction in any event.

Judge Schroeder was appointed to the court in 2007 by President George W. Bush.

Federal Court Enjoins Enforcement of Mississippi’s Ban on Adoptions by Married Same-Sex Couples

Posted on: April 1st, 2016 by Art Leonard No Comments

 

Finding that the ability of a couple to adopt a child is a “benefit” of marriage, U.S. District Judge Daniel P. Jordan, III, ruled on March 31 in Campaign for Southern Equality v. Mississippi Department of Human Services, 2016 U.S. Dist. LEXIS 43897 (S.D. Miss.), that Mississippi’s statutory ban on adoptions by same-sex couples probably violates the 14th Amendment under the Supreme Court’s ruling in Obergefell v. Hodges.  Although Judge Jordan found that some of the plaintiffs and many of the defendants had to be dismissed from the case on grounds of standing and jurisdiction, he concluded that other plaintiffs did have standing to challenge the law in court, and that the Executive Director of the state’s Department of Human Services was an appropriate defendant to be ordered on behalf of the state not to enforce the ban while the lawsuit is pending.  The ruling came as the state’s legislature was putting finishing touches on a so-called religious-freedom bill intended to protect persons or businesses with religious objections to same-sex marriage or sex relations between anyone other than a man and a woman united in marriage from any adverse consequences at the hand of the government or any liability for refusing to provide goods or services in connection with same-sex marriages.  The constitutionality of such a measure is much disputed in light of Obergefell.

Among the plaintiffs are same-sex couples who sought second-parent adoptions of children born to one member of the couple by her same-sex partner, and same-sex couples who sought to adopt children not biologically related to either of them through the foster care system. The court found that one of the couples was not married at the time the complaint was filed, and dismissed them from the case for lack of standing, since the state denies adoptions to all unmarried couples, whether same-sex or different-sex.  However, the court concluded that all of the remaining couples had standing to challenge the statutory ban in court, since an employee of the Department had told one of the couples in response to an inquiry about the foster-care route that the Department would continue enforcing the ban despite the Supreme Court’s June 26, 2015, ruling in Obergefell v. Hodges, which held that states are required under the 14th Amendment to allow same-sex couples to marry and to accord official recognition to same-sex marriages contracted in other jurisdictions. The organizational plaintiffs, Campaign for Southern Equality and Family Equality Council, met the test for associational standing by alleging that they had members who were married same-sex couples in Mississippi with interests in adoption similar to the named plaintiffs.

The court found, however, that neither the governor nor the attorney general were appropriate defendants, since neither of those state officials plays any role in administering the adoption system. On different grounds, the court dismissed from the case several judges who were named as defendants, finding that judges whose role is to adjudicate cases are not “adverse parties” to plaintiffs seeking to invalidate a state statute.  The Department of Human Services could not itself be sued, as the 11th Amendment as construed by the Supreme Court gives state agencies general immunity from being sued by citizens of the state in federal court for violations of constitutional rights.  However, the Supreme Court has allowed a “work around” for that constitutional barrier, by allowing suits against the officials charged with the direction of an agency that plays a role in the enforcement of a challenged statute.  Judge Jordan found that the Department plays a significant role in administering the foster care system and in investigating adoption petitions and making recommendations to the courts, and thus the Director of the Department would be an appropriate defendant.  While noting that the Department has stated recently that it would not stand in the way of a same-sex couple adopting a child, the court found there was sufficient evidence in the record that same-sex couples continue to be discouraged from applying for the foster care program to discount this statement for purposes of determining who can be sued in this case, stating that “the record before the Court indicates that [the Department] has interfered with same-sex adoptions after Obergefell.”

Turning to the merits of the plaintiffs’ motion for a preliminary injunction, the court had to confront the doctrinal mysteries of Justice Anthony Kennedy’s opinion for the Supreme Court in Obergefell.  While that opinion makes clear that the right to marry as such is a fundamental right under the Due Process Clause of the 14th Amendment, and that exclusion of same-sex couples from marrying violates that fundamental right, the Court never directly addressed the question of what level of judicial review might be appropriate for claims that a same-sex couple is being denied any particular benefit of marriage, which would determine what kind of justification a state would have to present for treating same-sex couples differently from different-sex couples.

“While the majority’s approach [in Obergefell] could cause confusion if applied in lower courts to future cases involving marriage-related benefits,” wrote Jordan, “it evidences the majority’s intent for sweeping change.  For example, the majority clearly holds that marriage itself is a fundamental right when addressing the due-process issue.  In the equal-protection context, that would require strict scrutiny.  But the opinion also addresses the benefits of marriage, noting that marriage and those varied rights associated with it are recognized as a ‘unified whole.’  And it further states that ‘the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefit afforded to opposite-sex couples %and% are barred from exercising a fundamental right.’”

“Of course the Court did not state whether these other benefits are fundamental rights or whether gays are a suspect class,” Judge Jordan continued. “Had the classification not been suspect and the benefits not fundamental, then rational-basis review would have followed.  It did not.  Instead, it seems clear the Court applied something greater than rational-basis review.  Indeed, the majority never discusses the states’ reasons for adopting their bans on gay marriage and never mentions the word ‘rational.’”  Thus, from a doctrinal standpoint, the Obergefell opinion is in some sense incomplete.  But it was not puzzling enough to deter Judge Jordan from moving ahead to the logical result.

“While it may be hard to discern a precise test,” he wrote, “the Court extended its holding to marriage-related benefits – which includes the right to adopt. And it did so despite those who urged restraint while marriage-related benefits cases worked their way through the lower courts.  According to the majority, ‘Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.’”  Judge Jordan noted Chief Justice John Roberts’ response to this point in his dissenting opinion, including his contention that as a result of the Court’s ruling “those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriage between same-sex couples.”  (In all these quotations from Obergefell, the emphases were added by Judge Jordan.)

“In sum,” wrote Jordan, “the majority opinion foreclosed litigation over laws interfering with the right to marry and ‘rights and responsibilities intertwined with marriage.’ It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits – expressly including the right to adopt – would then conclude that married gay couples can be denied the very same benefits.”  The conclusion is obvious: Obergefell decides this case.  “The majority of the United States Supreme Court dictates the law of the land,” wrote Jordan, “and lower courts are bound to follow it,” which means the Mississippi statutory ban on same-sex couples adopting children violates the Equal Protection Clause.

In his March 31 decision Judge Jordan was not rendering a final ruling on the merits, but rather responding to the plaintiffs’ motion for a preliminary injunction against enforcement of the statutory ban while the case continues. The first step of determining whether plaintiffs can get their injunction requires the court to determine whether they are likely to win on the merits, and the foregoing discussion was directed to that point.  Next Jordan considered whether allowing the ban to continue would inflict irreparable harm on the plaintiffs, which is simply answered by noting that monetary damages could not compensate a delay in being allowed to adopt a child and that a denial of equal protection of the laws is always considered an irreparable injury.  Since the current position of the Department is that “it will not impede an otherwise valid gay adoption,” it was clear that the “balance of harms” between the parties favors plaintiffs, as does the factor of how the public interest would be affected by granting or denying an injunction.  Thus, the court concluded that an injunction should be issued.  “The Executive Director of DHS is hereby preliminarily enjoined from enforcing Mississippi Code section 93-17-3(5),” ordered the court.  There was no immediate word whether the state would attempt to appeal this grant of preliminary relief.  Perhaps the court’s opinion will suffice to convince state officials that “marriage equality” as decreed by the Supreme Court means equality in all respects, invalidating any state law or policy that would treat same-sex married couples differently from different-sex married couples.

Since Obergefell dealt with benefits of marriage and did not rule on the rights, if any, of unmarried same-sex couples, it would not provide a direct precedent concerning attempted second-parent adoptions or adoptions out of foster care by unmarried same-sex couples, which is why one of the plaintiff couples was dismissed from the case, even though they informed the court that they had married after the complaint was filed.  And it would be difficult to argue that unmarried same-sex couples are “similarly situated” to married couples in relation to the adoption of children, at least for purposes of an Equal Protection challenge.  Everybody involved in the case, it appears, agrees that the sole issue is whether the challenged statute can be used to deny married same-sex couples a benefit afforded to married different-sex couples.

Lead attorney for the plaintiffs is Roberta “Robbie” Kaplan, a partner in the New York City office of Paul, Weiss, Rifkind, Wharton & Garrison, who also represented Campaign for Southern Equality in its successful legal challenge to Mississippi’s ban on same-sex marriage and Edith Windsor in her successful legal challenge to Section 3 of the Defense of Marriage Act.

Supreme Court Orders Full-Faith and Credit for Lesbian Co-Parent Adoption

Posted on: March 7th, 2016 by Art Leonard No Comments

The U.S. Supreme Court unanimously reversed a decision by the Alabama Supreme Court and ordered that Alabama courts accord “full faith and credit” to a lesbian co-parent adoption that was approved by a Georgia trial court.  The March 7 decision in V.L. v. E.L., No. 15-648, was reached without any oral argument before the high court, and the opinion was issued “per curiam” without any dissent from the Court’s conservative members.

The Alabama Supreme Court’s decision in E.L. v. V.L., issued on September 18, was a shocking departure from how courts normally deal with recognition of out-of-state adoptions.  The U.S. Constitution provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”  Since adoptions are judicial proceedings, the Supreme Court has always taken the view that the courts of one state must honor the court rulings of other states, with a narrow exception for situations where the courts of the other state did not have authority (“jurisdiction”) to issue the ruling.

In this case, a lesbian couple living in Alabama decided to have children together.  They wanted to protect the relationship between the children and their birth mother’s partner.  Since “second-parent” adoptions were not available in Alabama, they temporarily relocated to Atlanta, Georgia, where trial judges are willing to approve such adoptions, and obtained an order from the Superior Court there.  The birth mother specifically consented to allow her partner to adopt the children with the understanding that this would not affect her own parental status.  Although Georgia’s adoption statutes do not specifically authorize such an adoption, the trial judge — as have others in the trial courts in Atlanta — found that he could approve the adoption without cutting off the birth mother’s parental status.

Then the couple moved back to Alabama.  A few years later the women separated, and the birth mother cut off her former partner’s contact with the children.  The partner filed suit in an Alabama court, seeking confirmation of the Georgia adoption and “some measure of custody or visitation rights.”  The Alabama cour recognized the adoption and awarded temporary visitation while the case was pending.  The birth mother appealed, arguing that the court should not have recognized the Georgia adoption, claiming the Georgia trial court did not have jurisdiction to approve a “second-parent” adoption.  The Alabama court of appeals rejected that argument, but the Alabama Supreme Court accepted it, in a strange decision issued on September 18 that drew a sharply-worded dissent.

The plaintiff filed an emergency petition with the U.S. Supreme Court seeking to preserve her temporary visitation rights while urging reversal of the Alabama Supreme Court’s decision.  On December 14 the U.S. Supreme Court stayed the Alabama Supreme Court’s order, thus allowing continued visitation.

The Supreme Court’s March 7 action is called a summary reversal, because the Court issued a ruling on the merits of the appeal based on the petition for review filed by the plaintiff and whatever response was filed by the defendant, without calling for full briefing and oral arguments.   The speed with which the Court acted, as much as the short  opinion it issued, signaled clearly how wrong the Alabama Supreme Court ruling was.

The U.S. Supreme Court has never ruled directly on whether states are constitutionally required to allow same-sex partners to adopt in these situations, and this case did not call on the Court to make such a ruling.  Rather, the Court made clear that state courts are not entitled to second-guess how the courts of other states interpret their adoption statutes.

The Alabama Supreme Court had adopted an approach that would have gutted the requirement of full faith and credit, by asserting that if it disagreed with how a trial court in another state interpreted its adoption statute, it could find that the trial court did not have authority to render the decision and thus it was not owed full faith and credit. The U.S. Supreme Court rejected this theory out of hand.

“Where a judgment indicates on its face that it was rendered by a court of competent jurisdiction, such jurisdiction ‘is to be presumed unless disproved,’” wrote the Court, quoting one of its earlier full faith and credit decisions. “There is nothing here to rebut that presumption,” wrote the Court, pointing out that neither the Georgia Supreme Court “nor any Georgia appellate court” had construed the state’s adoption statute to limit the authority of the state’s trial courts to approve adoptions “only if each existing parent or guardian has surrendered his or her parental rights.”

Echoing the objection by the Alabama Supreme Court’s dissenting justices, the Court remarked, “Indeed, the Alabama Supreme Court’s reasoning would give jurisdictional status to every requirement of the Georgia adoption statutes, since Georgia law indicates those requirements are all mandatory and must be strictly construed. That result would comport neither with Georgia law nor common sense.”  Since the adoption judgment issued by the Superior Court “appears on its face to have been issued by a court with jurisdiction, and there is no established Georgia law to the contrary,” concluded the Court, “It follows that the Alabama Supreme Court erred in refusing to grant that judgment full faith and credit.”

This ruling came just days after the Alabama Supreme Court reluctantly threw in the towel and issue an order dismissing a pending action brought by a county clerk seeking to prolong defiance of the U.S. Supreme Court’s marriage equality ruling, Obergefell v. Hodges. A year ago, months before Obergefell was announced on June 26, a federal trial judge in Alabama ruled that the state’s ban on marriage equality was unconstitutional and ordered a local probate judge to issue marriage licenses.

The resulting controversy led to an Alabama Supreme Court decision in a case filed by some probate judges, known as In re King, rejecting the argument that the state’s ban was unconstitutional and directing probate judges not to issue marriage licenses to same-sex couples, with the exception of the probate judge who had been directly ordered to issue such licenses by the federal court. After the Obergefell decision was issued, the Alabama Supreme Court asked the parties in that case to submit arguments about the effect of Obergefell on its prior decision and on the obligations of the state’s probate judges regarding marriage licenses.  As time dragged on with no ruling by the Alabama court, more and more probate judges began to issue licenses, and on January 6, Chief Justice Roy Moore issued an “administrative order” directing them not to issue the licenses until the Alabama Supreme Court ruled.

On March 4, the Alabama court dismissed the case in a one-sentence order, which was accompanied by “concurring opinions” totaling 169 pages by several of the judges, most prominently Chief Justice Moore.

All of the justices agreed that the Obergefell opinion is now the governing law, but Chief Justice Moore’s “special concurrence,” running almost 100 pages, is a fervent denunciation of the Obergefell decision, echoing the views of the dissenting U.S. Supreme Court justices. The foundation of his argument is that “marriage” is an institution ordained by God and that it is beyond the scope of judicial power to “redefine” it.  Some of his colleagues, unwilling to go that far, wrote or joined separate concurrences that make more traditional legal doctrinal arguments.  None was willing to defend the Obergefell decision on the merits, but Justice Greg Shaw, a dissenter from last year’s ruling, took pains to disassociate himself from criticisms of Obergefell on the ground that the Alabama Supreme Court has nothing to say about the issue once the U.S. Supreme Court has decided a constitutional question.

Wrote Justice Shaw: “The debate over the legal and moral propriety of same-sex government marriage will certainly continue; but that debate has necessarily shifted to the court of public opinion. The issue, for all practical purposes, is now a political one.  The genius of our Founding Fathers is reflected in our constitutional form of government, which dictates that whether Obergefell stands the test of time or ultimately finds itself cast upon the trash heap of history depends upon the people of the United States, who serve as the ultimate repository of political power and whose collective voices can be heard through their elected representatives at both the federal and state levels.  If there is to be a showdown with respect to this issue, it could never have been led by this Court.  Such a showdown must pit the judicial will of the highest court in the land against the greater political will of the people of this country.”

Shaw derided as “silly” Chief Justice Moore’s continuing argument that the Obergefell decision was binding only on the four states of the 6th Circuit, whose decision the Supreme Court had reversed, and Moore’s assertion that the Alabama Supreme Court’s ruling from last year upholding the state’s marriage ban is still in effect.  As far as Shaw is concerned, the probate judges are bound to comply with the order of the U.S. District Court issued last year, even before Obergefell was decided, which the trial judge had expanded to a class order running against all the probate judges in the state.

In any event, the Alabama court’s dismissal of the case leaves the probate judges without any cover for continued defiance of the federal court order, so marriage licenses should be available for same-sex couples in every county, and continued defiance could subject probate judges to contempt orders and a fate akin to that suffered by Rowan County, Kentucky, Clerk Kim Davis, who spent some time stewing in jail until she was willing to let subordinates in her office issue marriage licenses.

Lesbian Co-Parent Seeks Expedited Supreme Court Review of Alabama Refusal to Recognize Adoption

Posted on: November 22nd, 2015 by Art Leonard No Comments

Attorneys for V.L., the adoptive mother of children born to her former same-sex partner, have asked the U.S. Supreme Court (SCOTUS) to review an erroneous decision by the Alabama Supreme Court to refuse to recognize the adoption that was approved by the Georgia Superior Court, and have also asked SCOTUS to restore her visitation rights while the appeal is pending by suspending the Alabama Supreme Court’s order in the case.  The petitions were filed on November 16.

V.L., who is represented by the National Center for Lesbian Rights and cooperating attorneys from Jenner & Block LLP (Washington, D.C.), with local counsel Traci Owen Vella and Heather Fann in Birmingham, Alabama, lived with E.L. in a seventeen-year relationship.  In May 2000 V.L. changed her last name to E.L.’s last name, and the women decided to have and raise children together.  E.L. subsequently gave birth to one child in 2002 and twins in 2004 through donor insemination.  The women played equal parental roles in raising the kids.  In order to provide more security to their legal relationship, they rented a residence in Atlanta and obtained a legal adoption from the Georgia (Fulton County) Superior Court so that V.L. would be the legal parent of the children.  The Georgia judge construed that state’s adoption law to allow second-parent adoptions without terminating the birth mother’s parental rights, as several other Georgia trial courts have also done.  So far, there is no Georgia appellate ruling against such adoptions, and the Georgia Supreme Court has not addressed the issue directly.

After the adoption, the women returned to Alabama and resumed living there are a family until the women separated and E.L. eventually cut off V.L.’s contact with the children.  V.L. registered the adoption with an Alabama court and filed an action seeking custody or visitation.  The Alabama trial and appellate courts concluded that V.L. must be recognized as an adoptive parent entitled to seek a determination of custody or visitation, with E.L. appealing every step of the way, until she won a reversal from the Alabama Supreme Court on September 18.

The lower Alabama courts correctly applied the Full Faith and Credit Clause (FFCC) of the U.S. Constitution, which requires that the courts of one state accord “full faith and credit” to the judgments issued by courts in other states.  More than a century of well-established court precedents provide that courts may not refuse to accord full faith and credit to a sister state court’s ruling because of a disagreement over the merits of that ruling.  The limited exception to full faith and credit would be cases where the court that issued the judgment did not have jurisdiction to do so, either because the court was not authorized to decide such cases or because the parties were not properly within the jurisdiction of the court.  In this case, the Georgia Superior Court had specifically concluded that it had jurisdiction over the parties and the subject matter of the case.  Indeed, Georgia statutes provide that the Superior Court has jurisdiction over all adoption proceedings.

A majority of the Alabama Supreme Court, however, departing from established constitutional precedents, decided based on its own reading of Georgia’s adoption statute that the Georgia law could not properly be construed to allow second-parent adoptions.  Even though the Georgia appellate courts have never specifically disapproved such adoptions, and courts of several other states have approved them in the context of similarly-worded adoption statutes, the Alabama court decided that the Georgia Superior Court’s departure from the Alabama Supreme Court’s interpretation of the Georgia adoption statute is a “jurisdictional” fault that justifies refusing to recognize the adoption.

This startling result drew a sharp dissent from a member of the court, who wrote that it “creates a dangerous precedent that calls into question the finality of adoptions in Alabama: Any irregularity in a probate court’s decision in an adoption would now arguably create a defect in that court’s subject matter jurisdiction.”

Petitioning SCOTUS, V.L. argued that the Alabama Supreme Court’s departure from established constitutional precedent, in general contradiction with more than a century of precedent and in direct contradiction of the Denver-based U.S. 10th Circuit Court of Appeals’ 2007 ruling, Finstuen v. Crutcher, 496 F.3d 1139, requires a resolution of whether state courts are permitted to inquire into the merits of rulings by sister state courts in deciding whether to accord full faith and credit to those judgments, particularly in adoption cases where the result would be to interfere with family relationships that had been established and then legally ratified in completed adoption proceedings.   In the Finstuen case, the 10th Circuit invalidated an Oklahoma statute that barred recognition of same-sex couple adoptions, holding that the statute violated the obligation of Oklahoma courts under the full faith and credit clause to recognize such adoption judgments.

Under the rulings of the Alabama trial and intermediate appellate courts V.L. had been enjoying visitation rights with the children on a temporary basis while E.L. pursued her appeal.  Shortly after its ruling, the Alabama Supreme Court suspended that visitation.  In addition to her petition for review, V.L. filed a petition with SCOTUS requesting a stay of the Alabama Supreme Court order and restoring her visitation rights while this appeal is pending.  This is in accord with her argument that she is the legal adoptive parent of those children and thus is entitled to continued contact of some sort unless E.L. can show that she is unfit or poses a danger to the children.  Because of the appeals of the recognition rulings in this case, there has not yet been a determination by the Alabama trial court whether it is in the best interest of these children for their adoptive mother to have custody or visitation.  By its erroneous decision that V.L. is not a parent with standing to contest these issues, the Alabama Supreme Court has decreed that there be no inquiry into the best interest of the children — an inquiry that should be at the heart of custody and visitation decisions when parents split up.